Contributed By Kim & Chang
The most active parties in the Korean acquisition finance market have been local commercial banks and domestic securities companies on the lender side. International banks are fairly inactive in the Korean acquisition finance market because, firstly, the acquisition price is usually paid in the Korean currency, Won, and therefore loans extended for the purpose of financing acquisitions are usually made in Korean Won, and secondly, loans taken out by Korean companies from non-resident lenders are subject to Korean withholding tax in relation to interest payments, and also foreign exchange reporting requirements.
Traditionally, corporate purchasers have mostly financed their acquisitions by issuing bonds or obtaining bank loans, in each case relying on their own credits. It was not until private equity funds became active in the Korean M&A market that the leveraged buy-out structure became widely used for acquisitions.
Corporate purchasers continue to rely primarily on the issue of equity, bonds or bank debt (on their own credit), while private equity funds actively seek financing from domestic banks and domestic securities companies.
The governing law of the loan documents is almost always Korean law.
Typically, the loan documentation is drafted by the lender's legal counsel. No particular standardised forms are used (for example, the Loan Syndications and Trading Association standard provisions or Loan Market Association templates are not typically used). The law firm acting as counsel to the lenders uses its own templates for producing the loan documents. However, the contents of the loan documents used in the Korean acquisition finance market do not materially differ from those governed by the laws of England and Wales or the State of New York.
Loan documents are usually written and negotiated in Korean, although they can be prepared in English in cases where the sponsor is a non-Korean entity.
Similar to other financing transactions, a legal opinion in an acquisition finance transaction will cover whether the borrower is validly existing under the laws in which it has been incorporated, and whether the financing documents have been duly authorised and executed and are legal, valid and binding upon the borrower pursuant to the terms of the financing documents. In addition, lenders would typically want their counsel to opine on the following:
A typical debt financing structure involves extending senior loans to a newly formed company that acts as the acquiring vehicle. In larger deals, mezzanine financing in the form of mezzanine loans or redeemable shares is often used. At syndication, most of the investors participating in the senior loan also participate in the mezzanine loan. A secondary market for subordinated bond/high-yield debt is not active in Korea.
The amount of the senior loan is usually around 50% of the total acquisition cost, which may be adjusted mainly based on the target's earnings before interest, taxes, depreciation and amortisation (EBITDA). Senior loans usually consist of one or more term loan facilities and a revolving facility. The purpose of the term loan facilities is to pay the acquisition cost together with the equity investment amount, and the purpose of the revolving facility is usually to pay the financing cost and other working capital requirements.
The bullet repayment of the senior loans on the final repayment date is most common. The term of the senior loans is usually four to five years. A prepayment fee is usually charged on the voluntary prepayment of the term loan facility within 12 to 18 months from the closing date.
Mezzanine loans are usually term loan facilities for paying a portion of the acquisition cost. As discussed above, since the investors participating in the senior loans and mezzanine loans are usually the same or are a similar group of financial institutions, often the length of the mezzanine loan may be the same as the senior loan, and the same security package given to the senior lenders is also provided in favour of the mezzanine lenders.
Further, the documentation for mezzanine loans is often similar to those for senior loans (although certain financial covenants or events of default are more lenient than for senior loans). Also, the upfront fee, interest rates and prepayment charges are usually higher for the mezzanine loans than for those for senior loans.
PIK interest for mezzanine loans is quite common in the Korean acquisition finance market.
Bridge loans are often used for the acquisition of shares in a listed target. For a public tender offer, the offeror must deposit an amount sufficient to pay the entire purchase price with a bank, at the time the tender offer is submitted. To facilitate this, bridge loans (secured by a pledge over the account on which the loan is funded) are used to finance the transaction. If the tender offer is successful, the bridge loan is paid from the proceeds of the main debt financing and equity investments. Conversely, if the tender offer is unsuccessful, the bridge loan is repaid simply from the proceeds deposited in the pledged account. A bridge loan is usually provided by one lender because (i) confidentiality is a crucial factor in these types of transactions and (ii) the offeror generally prefers to deal only with one lender.
Corporate purchasers have mostly financed their acquisitions by issuing bonds or bank loans, but otherwise a secondary market for subordinated bond/high-yield debt is not active in Korea.
When corporate purchasers finance their acquisitions by issuing bonds, it takes the form of private placement, as opposed to public offering. In the Korean acquisition financing market, there is no such legal form as loan notes.
The contents of the inter-creditor agreement used in the Korean acquisition finance market do not materially differ from those governed by the laws of England and Wales or the State of New York, but the forms are relatively simpler.
The usual arrangement in Korea is first to pay off the senior loan in full before payment of the mezzanine loan. It is most common that the interest on the senior loan is paid in cash on a quarterly basis. In the case of a mezzanine loan, a recent market trend is for the:
When a corporate purchaser issues bonds, they are unsecured corporate bonds and the bond investors do not receive any security. Therefore, bond investors are rarely a party to an inter-creditor agreement.
It is very rare for a hedge counterparty to be a creditor in a Korean acquisition financing transaction, and therefore hedge counterparties are rarely a party to an inter-creditor agreement.
A general charge or assignment over all assets of a party is not acknowledged in Korea. Therefore, a separate security interest should be created in relation to each type of asset. The three main types of security interest are:
The most common form of mortgage is a kun-mortgage, which is used for establishing security interests in real property. A kun-mortgage requires only that a maximum secured amount be specified when recording the kun-mortgage with court registry (the actual secured amount can vary over time due to accrual of interest or otherwise). The actual secured amount of a kun-mortgage therefore does not need to be provided when the kun-mortgage is recorded with the court registry, as long as the maximum secured amount is stipulated;
A pledge over shares is created on the delivery of the share certificate, representing the shares subject to the pledge, on which the name of the pledgee is endorsed by the pledger, to the pledgee. To perfect the pledge against the company issuing the shares, the name and address of the pledgee must be registered with the shareholders' registry of the company.
If the shares are issued in book-entry form (that is, where the shares of a Korean company are issued through the deposit system of the Korea Securities Depository (KSD), and the KSD acts as the share's central depository and is registered as the nominal shareholder on the issuer's shareholders' registry), the following rules apply in relation to the pledge:
Korean law generally requires assets subject to a security interest to be specifically identifiable. Therefore, under Korean law, a valid security interest cannot be granted over a fluctuating pool of assets where each asset within the pool is not specifically identified. However, certain exceptions have been recognised by courts (for example, a valid security interest can be granted in inventories that are stored in a segregated storage facility).
A bank deposit is considered as the depositor's claim against the depository bank. The pledge of a claim can be perfected against third parties in the same way as monetary claims. The bank's deposit agreement will usually prohibit a pledge from a bank account without the bank's consent, which means consent from the depository bank is usually required (and should be fixed-date stamped).
To perfect a pledge or yangdo dambo over monetary claims (such as receivables) against any third party (including the underlying obligor), the security provider must either:
If there is a contractual restriction on the assignment or creation of a security interest in the underlying contract, the security provider must obtain the underlying obligor's consent to the pledge (or assignment) with a fixed-date stamp affixed. In addition, any instruments relating to the monetary claim should be delivered to the secured party.
In relation to the effectiveness of the security interest over future monetary claims, the following elements are required for the valid creation of the security interest over monetary claims to be generated in the future (based on the views of leading commentators and precedents from the Korean Supreme Court):
Intellectual property rights
For the creation of pledge over a trade mark, patent or any other intellectual property rights, the pledge must be registered with the Korea Industrial Property Office (KIPO).
The KIPO registration fees must be paid. The relevant fees and expenses depend on the number of intellectual property rights subject to the pledge. It usually takes two weeks from the date of submitting the application to the KIPO to complete the registration of the pledge.
The most popular forms of security granted over real property are:
Taxes and expenses depend on the maximum mortgage amount. A mortgage is automatically perfected on creation, and no further action is required for perfection. One particular form of mortgage used for taking a blanket security interest over a factory is a "factory mortgage". This creates a security interest in the factory's underlying land, facilities, fixtures and equipment. Recording a factory mortgage with the court registry requires the attachment of a schedule, which lists specific items covered by the factory mortgage;
a) can take a significant amount of time; and
b) may or may not result in the optimal amount of sale proceeds.
Another advantage of the collateral trust arrangement is that, because the sale proceeds are distributed in accordance with the waterfall set out in the trust agreement, it is easier to administer. However, the kun-mortgage has the advantage that the purchaser can take over the property from the foreclosure auction, free of all liens (subject to exceptions of the super-senior liens).
Security interests over movable assets can be created using either a pledge or yangdo dambo. To create yangdo dambo over movable assets (that are not registrable property), the parties (that is, the assignor and the assignee) must agree both to:
There are no particular form requirements regarding security as long as the requirements for the creation and perfection of security under Korean law are complied with.
An upstream security raises a potential breach of fiduciary duty issue under Korean law for the security provider’s directors. Korean court precedents generally do not recognise a justifiable corporate benefit where a Korean subsidiary provides an upstream security to its parent company. Any benefit that the entire company group receives from the upstream security is treated separately from the corporate benefit given to the Korean subsidiary providing the security. However, whether the Korean subsidiary in fact enjoys a corporate benefit by providing the security is to be determined by the directors of the Korean subsidiary, taking into account the circumstances in their entirety. This is a factual analysis, and a board resolution simply acknowledging that the security provides a corporate benefit would not automatically prove the existence of a justifiable corporate benefit to the Korean subsidiary providing the security.
There is no explicit financial assistance rule in Korea. However, all actions taken by the directors of the company providing financial assistance must comply with the relevant fiduciary duty restrictions. Under Korean law, the directors can be subject to civil and criminal liability for breach of fiduciary duty if they act with the intent to benefit a particular third party. In this context, a third party includes the shareholders of the company, since the prevailing view is that the fiduciary duty of directors runs to the company itself rather than to the shareholders of the company. Therefore, the directors of the target that support the provision of guarantees (or providing the assets of the target as collateral) with respect to the obligations of the target's parent could potentially be subject to both civil and criminal liability.
There are no other known restrictions other than those set forth in the above sections.
Due to restrictions on providing an upstream security as discussed above, the shares of the acquired company held by the borrower/purchaser is the most common security provided to lenders.
Under Korean law, the pledge over the Korean securities may be enforced by any of the following methods. However, judicial foreclosure is the only method permissible under Korean law unless there is a separate agreement between the pledgor (ie, the borrower/purchaser) and the pledgee (ie, the lender) specifying the other two methods:
Upon the pledgor’s default, a pledgee shall be able to enforce the pledge over the pledged shares by opting for any of methods listed above.
Typically, guarantees will be in the form of a demand guarantee, whereby the beneficiary may seek the guarantor’s performance by written demand and without having to pursue the borrower first. Where the guarantee is governed by Korean law and comprehensively guarantees a debtor’s obligation to certain creditors (that is, the guarantee is not limited to a specific transaction), the Civil Code of Korea requires the guarantee to set a maximum guarantee amount so that the guarantor is aware of the amount of liability it is guaranteeing.
Similar to the provision of upstream security, an upstream guarantee raises a potential breach of fiduciary duty issue under Korean law for the guarantor’s directors. Korean court precedents generally do not recognise a justifiable corporate benefit in the case that a Korean subsidiary provides an upstream guarantee to its parent company. Any benefit that the entire company group receives from the upstream guarantee is treated separately from the corporate benefit given to the Korean subsidiary providing the guarantee. However, whether the Korean subsidiary in fact enjoys a corporate benefit by providing the guarantee is to be determined by the directors of the Korean subsidiary, taking into account the circumstances in their entirety. This is a factual analysis, and a board resolution simply acknowledging that the guarantee provides a corporate benefit would not automatically prove the existence of a justifiable corporate benefit to the Korean guarantor.
There is no requirement for guarantee fees, although paying guarantee fees would support the argument that there is a corporate benefit to the guarantor for providing the guarantee.
There is no specific provision for or concept of equitable subordination rules in Korea.
With respect to claw-back risk, under Korean insolvency law, payments or other acts (such as granting security interest or sale of assets) performed by the borrower may be avoided by the insolvency official after commencement of insolvency proceedings if, in general, they fall into one of the following four categories:
In the context of acquisition finance, the application of claw-back rules is not generally seen, but the above principle may apply depending on facts and circumstances.
A secondary market for loans is not active in Korea, although the lenders sometimes transfer loans. Borrowers generally refinance their debt positions instead of "buying back" their debt.
Under Korean law, a stamp tax of KRW350,000 would apply to any loan agreement executed in Korea under which a lender agrees to lend KRW1,000,000,000 (approximately USD822,000) or more.
Payment of interest by a Korean borrower to a foreign lender would be subject to withholding tax under the Korean tax code. Withholding tax rate will be the lesser of 22% (which includes local income tax) or whatever rate is applicable under the tax treaty between Korea and the country of tax residence of the foreign lender. In the Korean acquisition finance market, the qualifying lender concept will often apply, to avoid any grossing-up of withholding tax.
The deductibility of interest payments in relation to a loan extended by a foreign controlling shareholder (FCS) of the Korean borrower may be restricted under the International Tax Coordination Law of Korea. If the amount of the Korean borrower's debt owed to an FCS or to a third party under a guarantee issued by an FCS exceeds 200% of the "net FCS equity" in the Korean borrower, interest expenses on the excessive debt are not deductible to the Korean borrower for corporate income tax purposes. In addition, the non-deductible interest amount is treated as dividends if the debt is owed to an FCS.
An FCS is a foreign shareholder who either:
a) interlocking directors;
b) significant financial support;
c) business dependency; and
d) licensing of intangible property
The "net FCS equity" in the borrower for this purpose is defined as its proportionate share of the larger of either:
However, if there is any capital increase or capital reduction during the fiscal year, the new FCS equity should be calculated under the average basis. Accordingly, a thin-capitalisation problem cannot be avoided by:
The key regulated industries in Korea include institutions for which applicable laws impose restrictions on the eligibility of major shareholders and/or changes to the composition of the shareholders. These institutions include:
The Bank Act prohibits any one person from acquiring more than 10% of outstanding voting shares of any commercial bank (including any shares held by any specially related persons of that person) unless either approval is obtained from the Financial Services Commission (FSC), or some other limited exception under the Bank Act is applicable.
In addition, if any person acquires more than 4% of the voting shares of any commercial bank, this person must file various reports regarding their acquisition of the interests with the FSC. The FSC's approval is also necessary for a person to become a major shareholder of insurance companies, securities companies, mutual savings banks or other financial institutions.
Various restrictions are also imposed on:
The acquisition of a listed target company must comply with the special provisions under the Financial Investment Services and Capital Markets Act (the FSCMA). Acquisitions of listed target companies are usually conducted by purchasing the shares from the controlling shareholders over the counter. This is done to circumvent the various restrictions under the FSCMA (except for certain disclosure requirements) in relation to the sale and purchase of listed shares.
However, where the number of sellers exceeds ten, the public tender offer procedure must be used. Further, if the seller shareholder is a foreigner, the shares held by the seller should have been acquired as "foreigner investment" under Korea's Foreigner Investment Promotion Law. Otherwise, the shares held by the foreign seller cannot be sold over the counter without the approval of the Financial Services Commission (FSC).
If there are no controlling shareholders in the listed target, a public tender offer under the FSCMA can be used to acquire the controlling shares. For a public tender offer, the offeror must submit an application to the FSC and the Korea Exchange containing certain information regarding:
Under the FSCMA, the offeror must deposit an amount sufficient to pay the total purchase price payable with a bank if the maximum number of shares the offeror offered to purchase is tendered. The deposit must be made before launching the tender offer, and the bank holding that deposit must issue a certificate confirming that the deposit of a sufficient amount to pay the total purchase price has been made.
The public tender offer is rarely used for the acquisition of the controlling shares because the procedure is complicated and strictly regulated and the total purchase price must be funded and deposited in advance.
However, after the acquisition of the controlling shares, it is possible for the purchaser to acquire additional shares through tender offers.