The corporate lending market in Austria picked up speed in 2016/2017. Although almost all market participants engaged in the lending business, in particular credit institutions, still need to (and will have to continue to) allocate a fair amount of resources to implement, and comply with, a variety of European and Austrian legislation providing for a strict regulatory framework (such as, for example, increased equity requirements and capital buffers in the context of the particular credit institution's risk position or profile), the supply and demand for loan financing is constantly growing.
Austrian lenders are very active in both the Austrian lending market and (although considerably more sensibly compared with previous years) the Central and Eastern Europe (CEE) lending market, given that several Austrian credit institutions have strong market presence in the CEE region. As far as financings in the CEE region are concerned, Austrian lenders provide financing to Austrian borrowers active in the CEE region and to non-Austrian borrowers located in the CEE region.
Moreover, Austrian lenders' participation in Anglo-Saxon and German syndicated financing transactions comprises a fair amount of their overall lending activity (either with or without the involvement of an Austrian borrower or security provider).
When focusing on the Austrian law financing market, deal activity seems to be growing, while deal volumes remain stable or below pre-crisis level. In particular, deals within low two-digit-million volumes involving mid-market companies are rapidly growing. Also, because of the current borrower-friendly interest rate environment, borrowers are seeking to refinance their existing debt on more favourable and commercially attractive terms.
What we have also recognised is a constantly growing interest of US and UK-based investment funds in the Austrian market generally and in the financing market particularly.
A fair bulk of Austrian law syndicated loan transactions are documented on the basis of the Loan Market Association (LMA) recommended template forms (leveraged or investment grade, as applicable) adapted to meet Austrian law requirements. However, depending on the specific circumstances of the transaction, including the size of the loans made available, the documentation standard used may be fairly shortened compared with the LMA (leveraged) template.
Moreover, the number of non-performing loan transactions in Austria (and also the CEE region) continued to increase in 2016, and this field is expected to become even more active. Those transactions included sales of Austrian banks in the region, and of non-performing loans and leasing portfolios (e.g., of the bad bank of a former Austrian credit institution active in the CEE region).
II LEGAL AND REGULATORY DEVELOPMENTS
i Certain regulatory aspects with respect to (cross-border) lending business
Lending in Austria generally forms part of a comprehensive list of banking activities enumerated in the Austrian Banking Act. Lending may thus only be conducted on a commercial basis in Austria if the relevant loan provider has been granted an Austrian banking licence or to the extent it is validly passported into Austria under Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms.2 Furthermore, any credit institution authorised in a Member State of the European Economic Area may perform the activities referred to in Nos. 1-15 of Annex I to the European Directive 2013/36/EU in Austria either by the establishment of a branch or by way of the freedom to provide services.
The Austrian Banking Act may also be applicable if the lending activities are conducted from a place outside Austria (i.e., if cross-border activities are carried out).
However, even if not explicitly stated in the Austrian Banking Act, the existence of a lending activity presumes, at least to a certain extent, engagement in the domestic market. Whether a lending business will be considered to be carried out in Austria for the purposes of the Austrian Banking Act may be difficult to determine, as there is no law or regulation to establish the requirements that would have to be fulfilled.
Following discussions in academic literature and decisions rendered by the Austrian Supreme Court and the Austrian Supreme Court in Administrative Matters respectively, there is a non-exhaustive set of factors to be taken into consideration when assessing whether a lending activity is carried out in Austria. The risk that the result of a proposed transaction might be considered to constitute ‘lending business' could be mitigated by avoiding any geographical connection to Austria, such as by (1) performing, to the extent possible, any negotiations in the context of the envisaged lending outside Austria; (2) executing and keeping all arrangements concerning the loans outside Austria; and (3) having all accounts relevant in the context of the lending arrangement outside Austria (ensuring, in particular, that any disbursements and repayments are made from, and to, accounts located outside Austria).
Conducting licensable activities (such as lending activities) with respect to Austrian banking law in Austria without a licence could trigger at least administrative fines and civil law sanctions; criminal sanctions may, under certain circumstances, also be imposed. While, however, the transaction (agreement) itself remains valid, monetary penalties may go up to €5 million (or twice of the amount of the benefit achieved). Furthermore, the law provides that whoever carries out the lending activities unlicensed shall not be entitled to any compensation connected with such activities (e.g., interest, commissions, fees); sureties and guarantees granted in connection therewith may be ineffective. Additionally, a civil lawsuit for unfair competition by competitors could be expected.
Given the increased appetite and presence of funds in the Austrian lending market, regulatory exemptions for the respective regulated activities become more and more important and are a key structuring element of a lending transaction.
ii Basel III implementation
As far as the Basel III framework is concerned, this has been implemented in Austria by a directly applicable European regulation (the Capital Requirements Regulation) and the transposition of the Capital Requirements Directive IV into the Austrian Banking Act, both applicable since 1 January 2014.
Furthermore, several directly applicable Commission-delegated regulations, based on regulatory technical standards drafted by the European Banking Authority, complement this legislative package. Some of the new provisions are envisaged to be phased in by 2019.
The aim of this extensive reform is to strengthen the EU banking sector by introducing higher capital requirements in terms of quality and quantity, new liquidity requirements, improving risk management and governance, and by strengthening banks' transparency and disclosures.
iii Intensification of know your customers (KYC) checks
The core part of the Financial Market Anti-Money Laundering Act (implementing Directive 2015/849 (EU) of the European Parliament and the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing) is applicable as from 1 January 2017. The Financial Market Anti-Money Laundering Act applies, among others, to credit institutions and financial institutions pursuant to the Austrian Banking Act as well as CRR institutions pursuant to Section 9 of the Austrian Banking Act and has a significant impact on, inter alia, the KYC checks to be conducted by the respective institutions in relation to their customers. Each such institution is obliged to take appropriate steps to identify, assess and mitigate the risks of money laundering and terrorist financing, taking into account risk factors including those relating to their customers, geographic areas, products, services, transactions or delivery channels and thereby preventing the use of the EU financial system for the purposes of money laundering and terrorist financing.
III TAX CONSIDERATIONS
i Austrian withholding tax
Domestic income from the granting of capital (capital investment) is subject to a withholding tax of 25 per cent or 27.5 per cent under specific circumstances, unless an exemption applies. In a typical loan or credit transaction involving a (domestic or foreign) corporate entity as a lender and an Austrian borrower or an Austrian branch of a foreign borrower, no such withholding tax applies. This is because of the fact that interest from private loans and other non-securitised receivables, which are not based on a bank deposit (or similar banking transaction), is not subject to withholding tax. Furthermore, interest received by a corporate entity that has neither its seat nor its place of management in Austria is not subject to tax in Austria.
In a typical loan or credit transaction involving a (domestic or foreign) corporate entity as a lender and an Austrian borrower or an Austrian branch of a foreign borrower, there are also currently no limitations on the deduction of interest. In particular, Austria has no interest barrier rules. Interest paid to unrelated parties is, therefore, currently fully deductible by the borrower. Note that when the ‘BEPS' Directive (Directive EU 2016/1164) will be implemented in Austria (in 2019), interest will likely be deductible only up to an amount of 30 per cent of the EBITDA. Also note that if the lender is a related party of the borrower and the lender is resident in a low-tax jurisdiction, the borrower may not be allowed to fully deduct the interest under current Austrian domestic law.
ii Austrian stamp duty
The Austrian Stamp Duty Act contains an exhaustive catalogue of legal transactions that are in principle subject to Austrian stamp duty, provided that a written document is executed and a specific nexus to Austria exists.
While Austrian stamp duty on loan and credit agreements has been abolished with effect as of 1 January 2011, it is important to note that loan and credit agreements may still be stamp duty-sensitive if they contain or refer to other stamp-dutiable transactions. In the context of loan and credit agreements, such stamp-dutiable transactions typically encompass assignment and transfer agreements (e.g., assignments or transfers by lenders), security assignment agreements, suretyships and mortgages.
The computation of the assessment base is regulated for each type of transaction in the Stamp Duty Act and varies according to the specific conditions of the transaction involved. In general, the stamp duty is calculated as a percentage of the contract value (e.g., the consideration agreed upon or, in the case of security transactions, the secured amount). However, the exact amount of stamp duty due has to be assessed in each individual case.
The Austrian Stamp Duty Act provides for certain exemptions from Austrian stamp duty; for example, an important exemption in the context of debt trading is the exemption from stamp duty for assignments between credit institutions, if the institutions satisfy certain requirements.
Furthermore, all types of transactions that serve to secure a loan or credit agreement (with the exception of bills of exchange, which may, under certain circumstances trigger Austrian stamp duty) may be exempt from Austrian stamp duty. However, to the extent the security is not provided solely for a loan or credit obligation but also for any other further obligation (e.g., a security for a security), that exemption might not apply.
In the case of stamp duty-sensitive transactions, in relation to which no exemption applies, various other schemes to mitigate the risk of triggering Austrian stamp duty are available. An option to mitigate the stamp duty risk that is commonly used in financing transactions is to execute all stamp duty-sensitive documents outside the Republic of Austria and also to keep such documents outside of Austria (it is recommended that stamp duty-sensitive documents also contain a stamp duty-related warning note to strengthen parties' awareness). After execution, the original of the stamp duty-sensitive document and all certified copies thereof must stay outside Austria. Further, documents that refer to stamp duty-sensitive documents and the dutiable transactions (e.g., substitute documentation, notices with respect to the stamp-dutiable transaction or documents signed by either of the parties that refer to the stamp-dutiable transaction) must not be sent to or from Austria.
With respect to standard indemnities by the borrower in respect of, inter alia, stamp duty, as foreseen in the LMA recommended template forms, it should be highlighted that under Austrian law all parties to an agreement would be jointly and severally liable for stamp duties triggered, and the Austrian tax authorities are not legally bound by agreements between the parties that deviate from the statutory provisions. However, the tax authority shall, at its discretion, at first approach the party that shall bear any stamp duty that is triggered as agreed between the contractual parties.
IV CREDIT SUPPORT AND SUBORDINATION
Austrian law recognises various types of securities, and lending transactions typically involve pledges over various asset classes, such as, for example, shares, receivables (trade receivables, intra-group receivables, insurance receivables, etc.), bank accounts, real estate and (to the extent applicable in the context of the security package) intellectual property rights.
In the context of structuring an Austrian security package, it is important to note that Austrian law does not recognise the establishment of security interests over a fluctuating pool of assets (i.e., no floating charge). A security may only be valid if the collateral assets as well as the secured obligations are specified, or at least specifiable.
A pledge or mortgage under Austrian law is an accessory right and will, therefore, be subject to the same legal consequences as the secured obligations, meaning that, for example, if the secured obligation is terminated or not valid, the same would apply to the pledge.
Furthermore, a pledge cannot be separated from the secured obligation, which means that it can only be held and enforced by the creditor of the secured obligation. In the context of Anglo-Saxon and German syndicated financing transactions this is typically achieved by the use of (English or German law-governed) parallel debt concepts. As far as Austrian secured lending transactions are concerned, usually a joint-and-several-creditor structure allowing a security agent to hold the security is implemented, pursuant to which the security agent has its own entitlement to the secured claims in its own name and on its own behalf.
Because of its accessory nature, the pledge will cease by operation of Austrian law upon payment (or other discharge) of the underlying secured obligation.
For a (in rem) security to be validly established, a public act (perfection step), in addition to an agreement, is required. The steps to be undertaken to perfect the relevant security interest depend on the asset class. The necessary act of publicity for a mortgage is registration with the land register. As far as, for example, pledges over receivables are concerned, either (1) the pledgor has to make a corresponding annotation in its books and accounts or (2) the relevant third-party debtor needs to be notified. In this context, it is important to note that as long as a third-party debtor has not been notified accordingly, the debtor may settle its obligations towards the pledgor with debt-discharging effect by paying to the pledgor.
Since, as outlined above, the concept of a floating charge is not recognised under Austrian law, the creation and perfection of security interests over moveable assets would require the delivery of the collateral assets into the custody of the security agent or a delegate of the security agent acting as custodian. As a result of this requirement and related asset disposition control mechanics that need to be complied with to stand the tests of the Austrian courts, the taking of security over inventory depends on its importance (cost/benefit analysis) in the context of the security package.
In connection with costs associated with the establishment of securities, mortgages, for example, are subject to court fees for registration of the mortgages in the relevant land registers (in principle 1.2 per cent of the secured amount) as well as stamp duties (in principle 1 per cent of the secured amount), unless an exemption pursuant to the Austrian Stamp Duty Act applies (see Section III, supra).
ii Guarantees and other forms of credit support
Guarantees are a very commonly used instrument in terms of credit support. Abstract guarantees under Austrian law are characterised by their non-accessory nature, meaning that any obligations under the guarantee remain unaffected by any changes to the underlying (secured) obligations.
However, in that context, despite the abstract nature of a guarantee, the validity, binding effect and enforceability may be limited or otherwise affected by, among others:
- a equitable principles of general applicability of Austrian civil law (e.g., the prohibition to abuse legal rights or similar concepts); and
- b applicable insolvency, reorganisation, fraudulent conveyance, avoidance, moratorium or similar laws of general application relating to or affecting the enforcement of creditors' rights and remedies.
Thus, while in principle no defences or objections arising out of the arrangements underlying the (abstract) guarantee can be raised by a guarantor, a guarantor may, despite the abstract nature of the guarantee, raise defences and objections arising out of the guarantee agreement itself (if any). Such defences or objections may in particular concern (1) the invalidity of the guarantee agreement, (2) issuance of an inadequate (payment) demand under the guarantee agreement or (3) non-occurrence of the guaranteed event.
Moreover, for a guarantee to create legal, valid, binding and enforceable obligations of the guarantor, the signatures on behalf of the guarantor on the guarantee need to comply with the requirements of Austrian law as to written form, which will not be met by, for example, a fax copy of the guarantee.
In terms of Austrian stamp duty considerations, while suretyships in principle would be within the catalogue of transactions that are subject to Austrian stamp duty, abstract guarantees, if structured carefully, should not trigger Austrian stamp duty as guarantee agreements are not within the scope of legal transactions enumerated in the Austrian Stamp Duty Act. In this respect, the Austrian tax authorities will only treat an agreement as a guarantee for stamp duty purposes if certain prerequisites are met (e.g., if the guarantor agrees to make unconditionally, without recourse to the validity or existence of the secured obligations, any such payment under the guarantee as the counterparty may demand and to waive any objections thereto).
Other instruments of credit support used from time to time in the context of Austrian secured lending transactions are bills of exchange and letters of comfort (which may, depending on the letter's nature, qualify either as a strong or soft letter of comfort).
iii Priorities and subordination
As far as the ranking of (in rem) security interests is concerned, generally under Austrian law, the first come, first served principle applies, meaning that the timing of performance of the relevant perfection step is decisive for the ranking between competing security interests, with the earlier security interest being senior in rank to the later security interest.
Since Austrian law security (other than, for example, real estate) is not registered with any public registers but perfection of certain collateral assets is achieved via, for example, notices to third-party debtors, lenders have to rely on there being no encumbrance or negative pledge representations and undertakings provided for by the security provider.
For limitations that may affect the validity, binding effect and enforceability of a security interest, see Section V, infra.
Subordination is typically achieved either by structural subordination or by contractual subordination. For purposes of contractual subordination, usually either intercreditor arrangements or subordination agreements are entered into.
V LEGAL RESERVATIONS AND OPINIONS PRACTICE
Legal opinions issued in Austria in the context of lending and secured lending arrangements contain a set of various legal limitations and qualifications that are typically also seen in other jurisdictions, as well as limitations reflecting various Austrian law specifics.
The key topics addressed in the limitations section usually comprise the following.
i General effects of insolvency proceedings
Any opinion statements rendered are subject to all limitations arising from the laws relating to insolvency, bankruptcy, liquidation, receivership, moratorium and reorganisation, including certain periods before the institution of such proceedings for which a transaction may be contested and other laws affecting the rights of creditors (including secured creditors) generally, including the principle of equitable subordination.
- a during a period of six months after the opening of an insolvency proceeding against an Austrian entity, agreements may not be terminated except for good cause if the exercise of such rights would endanger the carrying on of the insolvent's business by the receiver and provided the restriction does not constitute severe personal or economic disadvantages to a particular creditor;
- b contractual stipulations providing for the right to withdraw from or cancel an agreement or for an automatic termination in the event of opening of an insolvency proceeding against an Austrian entity are not enforceable, if this was the only reason for withdrawing, cancellation or termination of an agreement; and
- c security instruments may not be enforceable for a period of six months from the opening of insolvency proceedings if enforcement would jeopardise the continuation of the Austrian entity's business unless, among other things, enforcement is inevitable to prevent the creditor from incurring severe personal or economic damage.
As far as clawback regimes are concerned, pursuant to Austrian law, transactions may be subject to an avoidance claim. General requirements for avoidance are that (1) the challenged legal act took place within a certain ‘suspect period' prior to the commencement of insolvency proceedings, (2) the challenged legal action caused a discrimination of the other creditors and (3) the effect of a successful avoidance claim would be to increase the bankrupt's estate. Grounds for avoidance include, among others, (1) intentional discrimination of other creditors, (2) avoidance due to squandering of assets, (3) avoidance due to preferential treatment and (4) avoidance due to knowledge of insolvency.
Further, any power of attorney - even if granted irrevocably - will automatically terminate upon the opening of insolvency proceedings over the relevant entity's assets.
ii Austrian capital maintenance rules
A strict system of protection of capital of companies against undue distribution to its shareholders applies to Austrian corporations and partnerships whose general partners consists merely of corporations. The concept is based on the principle that the entire set of assets of a company should be protected on behalf of the company's creditors. This goal is reached by a set of capital maintenance rules, restricting the possibility of any direct or indirect distribution to shareholders or their affiliates. The most important exception is the right of the shareholders to receive dividend payments that are restricted to the amount of net profits as shown in the approved annual financial statement and not excluded from distribution by law or the articles of association.
Following these aims, a business transaction that provides for any value transfer to a shareholder or a shareholder's affiliates must be concluded on arm's-length terms supported by adequate consideration. In the absence of arm's-length terms, the transaction constitutes an unlawful repayment of capital and thus violates Austrian capital maintenance rules. Unlawful repayment of capital may be justified by specific corporate reasons that are in the best interest of the company. When assessing whether a transaction is entered into on arm's-length terms, one has to take into consideration not only the specific conditions of the transaction, but also whether a third party would ever enter into this specific transaction. In addition, all advantages to the company must be taken into account.
Austrian courts are interpreting this mandatory principle of Austrian law prohibiting repayment of capital from a company to its shareholders broadly. This prohibition also encompasses the granting of security interests by a company to secure a loan granted to its shareholders (upstream security) or to its shareholders' affiliates (side-stream security) without adequate consideration.
The legal consequence of a violation of the Austrian capital maintenance rules is that the received benefit may be null and void. In that respect, limitation clauses, which are usually included in the relevant lending or security agreement, attempt to partly preserve the security interest (or guarantee) in the event that the court concludes that the security interest (or guarantee) violates Austrian capital maintenance rules, so that the amount secured or guaranteed would be reduced to what is permissible under Austrian law. While this approach is market standard in financing transactions, it should be noted that no case law is available to confirm that a limitation clause achieves its desired purpose.
Generally, Austrian capital maintenance rules are applicable in relations between the company and its shareholders. However, a loan agreement or security agreement may be null and void and a recipient of security or a third-party lender may not be able to claim the full amount of its loan and be liable for repayment of monies received if it either knew or by gross negligence did not know that the transaction violates Austrian capital maintenance rules. While there is no general obligation on a lender to verify or investigate this matter, such an obligation exits in cases where there is a strong suspicion that a transaction violates capital maintenance rules.
iii Legal opinion practice
Legal opinions in (secured) lending transactions in Austria are usually provided by lenders' as well as by obligors' legal counsel. Pursuant to good market practice, legal advisers to the lenders are asked to render an enforceability opinion on the relevant financing documentation and legal advisers to the obligors are asked to render the capacity opinion with respect to the (Austrian) obligors involved.
Legal opinions are typically addressed to the agent as well as to the finance parties that are an original party to the finance documentation as of the date on which the opinion is issued. In the context of syndicated financing transactions, opinion counsels are frequently asked to broaden the addressees to cover also persons becoming lenders during primary syndication within a predefined short period as of the execution of the relevant financing agreement. Typically, legal opinions may be disclosed to (but not relied upon by) persons if so required by applicable law, rule or regulation or any competent judicial, governmental or supervisory body or with the prior written consent of the opinion-issuing counsel.
iv Choice of law - submission to jurisdiction
The courts of Austria will uphold and give effect to a choice of law, and a submission to courts of a jurisdiction other than Austria is legal, valid and binding, subject to the qualifications referred to in Regulation (EC) No. 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), and is subject to the rules regarding Austrian public policy and mandatory provisions of Austrian procedural law, insolvency law and corresponding applicable European legislation (in particular Regulation (EU) No. 1215/2012 of the European Parliament and the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Ia Regulation)) restricting the free choice of courts. Recognition and enforcement of foreign judgments has to be in line with the terms of applicable European legislation (in particular the Brussels Ia Regulation) and is subject to the rules of procedure set out in the Austrian Enforcement Act or other statutory regulations.
VI LOAN TRADING
In Austria, loan participations are regularly traded. Transfers of loan participations are most commonly achieved either by an assignment of rights or by a transfer of rights and obligations by way of assumption of contract, in which case the whole contractual position of the transferring lender would pass to the new lender (Austrian stamp duty issues need to be considered accordingly (see Section III, supra)).
In terms of security interests granted in favour of the initial lender, the accessory nature of Austrian law security interests (other than, for example, abstract guarantees) requires that the beneficiary of the security and the creditor of the secured claims be the same person. If security is provided in the context of syndicated facilities, the use of security agent structures allows lenders to trade their debt without the security being adversely affected. However, any replacement of the security agent may result in the legal requirement to repeat certain acts of publicity in relation to the security to ensure that the security interests remain properly perfected in accordance with Austrian law.
Additionally (funded and unfunded) sub-participations can be found frequently.
Any debt trading requires careful structuring because of regulatory requirements. In the context of debt trading, in particular, provisions encompassing banking secrecy rules need to be taken into account. Since Austrian banking secrecy rules are rather strict, these need to have already been considered at the stage of granting the loan, so that trading is not hindered by banking secrecy obligations.
VII OTHER ISSUES
Other issues that may be of particular interest for lenders in the context of (secured) Austrian financing transactions relate to Austrian companies being in financial crisis in accordance with the terms of the Austrian Act on Equity Replacements. In a financial crisis of the company, a loan granted by a qualified shareholder (i.e., (1) a shareholder with controlling participation, (2) a shareholder with a participation of at least 25 per cent, and (3) any person not holding a participation in the company but having a controlling influence with regard to the company pursuant to the Act on Equity Replacements) is considered to be equity-replacing, as a consequence of which the shareholder who has granted such an equity-replacing loan could not demand repayment until the borrowing company has been reorganised or restructured, any security granted in connection with such loans may not be enforced and in an insolvency proceeding the relevant claims of the lender are subordinated.
Moreover, in the context of clawback regimes, creditors can - also outside insolvency proceedings - use rights of avoidance granted to them by the Austrian Act on Avoidance of Legal Transactions (the Act limiting the rights of avoidance to transactions similar to the ones mentioned in the Austrian Insolvency Act (see Section V, supra)). The claim can be filed by any creditor whose claim against the debtor has not been satisfied by the proceedings under the Austrian Enforcement Act or is not likely to be satisfied by such proceedings.
VIII OUTLOOK AND CONCLUSIONS
While we do not see any new legal, regulatory or market developments in the near future that would have a strong impact on the Austrian law loan market, we believe that compliance with European and Austrian legislation providing for strict regulatory frameworks is an ongoing challenge for loan market participants and comes with material (and ongoing) costs assigned to the implementation of the various components imposed thereby. Furthermore, the still continuing restructuring needs of several debtors (in particular in emerging markets where Austrian credit institutions play a very active role) have sharpened lenders' sensibility in general; this sensibility, however, not necessarily leading to the effect that Austrian lenders are more conservative in terms of providing new financings, but decisions whether or not a new financing is provided are carefully considered and well founded in response to the financial crisis. In general, Austrian lenders are very active and, by conducting significant lending business in Austria and the CEE region, are contributing to further stabilisation and growth in Eastern Europe.