Project Finance 2021

Last Updated November 04, 2021

Hungary

Law and Practice

Authors



Wolf Theiss has been present in the Hungarian market since November 2007. The Budapest team of 30 professionals has used its local and international experience to handle complex domestic and multi-jurisdictional matters, and regularly advises foreign investors on setting up new businesses, or on equity or asset acquisitions from existing businesses, as well as on arranging joint ventures with local partners in Hungary and the CEE/SEE region. The lawyers provide client-focused and industry-driven advice in all aspects of investment and business law, including M&A, banking and finance, restructuring, projects and infrastructure, each in combination with first-class tax advice if so desired. The main strength of the Budapest office is energy law. The team also has a particular strength and niche expertise in handling matters arising in the regulated industries, such as energy, banking, real estate and environmental law, capital markets transactions, telecommunications and life sciences.

In the case of project financing, lenders are typically commercial banks. Depending on the size of the transaction, a group of commercial banks (often a Hungarian bank and its foreign – usually German or Austrian – parent) or one commercial bank finances the transaction.

Sponsors are usually foreign parents of the Hungarian special purpose vehicle with relevant knowledge and expertise in the given area.

There have been no public-private partnership transactions in Hungary since 2010.

Funding Techniques

In project financing transactions, the commercial bank financing (via a project financing facility) is the typical financing technique in Hungary. As set out in 1.2 Public-Private Partnership Transactions, there are no public-private partnerships transactions in Hungary.

Arable Land Issues

In a power plant project financing deal, the most crucial point is whether the land on which the power plant is to be built is arable land or exempted from cultivation.

Due to the particularities of Hungarian legislation, arable lands may only be owned by natural persons, but the exemption from cultivation may only be requested (and therefore the project company may only acquire the land) when the construction of the power plant is completed and the relevant building permits and the operational permit are obtained.

This means that the financing banks may not obtain a mortgage over the land during the utilisation of the facility, but can do so once the power plant has been built and the relevant permits are obtained.

While Hungarian banks have got used to this situation, it could be a deal breaker for foreign banks.

Construction Trustee

If the value of a construction exceeds a certain amount (currently EUR5.35 million or the HUF equivalent thereof), the use of a construction trustee is mandatory.

The construction trustee ensures that every contractor and subcontractor receives its contractor fee after a milestone set out in the relevant construction contract is completed. In order to achieve the continuous payment, the procurer (which is, in practice, the project company) shall transfer the full amount of the next milestone to the construction trustee's account before the next milestone starts. It also means that banks shall disburse the loan on the construction trustee's account, although monies may only be released from the construction trustee's account if the project company confirms that the relevant milestone has been completed in accordance with the terms of the construction contract.

The solar energy sector is expected to remain active in the coming year.

In Hungary, all of a company's assets may be offered as collateral to lenders.

Type of Collateral

A pledge may be established over assets, bank accounts, any type of receivables, shares (quotas) or intellectual property rights. Assignment by way of security is also available, but is not as common as the pledge. For certain types of assets (quotas and real estate), a call option may also be established as security. A mortgage is established over real properties.

Formalities Requirements

In practice, the only formalities requirement is that the agreement creating the relevant security is in a written form, and is registered in the relevant registry, if applicable.

Hungarian market practice is that the security documents (and also the facility agreement, if governed by Hungarian law) are incorporated in notarial deeds to ensure direct enforceability.

Perfection Requirements

In order to be valid and enforceable, the relevant security needs to be registered in the relevant registries, as follows:

  • collateral registry: bank account pledge, receivables pledge, movable assets pledge, share pledge, security assignment of receivables and call option in relation to movables assets (not a common security);
  • company registry: quota pledge;
  • land registry: real estate mortgage and real estate call option; and
  • Hungarian patent office: pledge over intellectual property.

Hungarian law recognises a special form of floating charge. A pledge might be created over all of the assets of a debtor without individually specifying those assets, but such pledge does not extend to those assets, the ownership of which is otherwise registered in an authentic registry, such as real properties, ownership interest in a company, intellectual property, aircrafts and vessels. 

Otherwise, security may be established over future assets as well and not necessarily within the framework of the above-mentioned floating charge.

The cost of registering a security is always a fixed fee and does not depend on the value of the relevant asset or the value of the transaction.

The registration fees are as follows:

  • collateral registry – HUF7,000 (approximately EUR20) per registration;
  • company registry – HUF18,000 (approximately EUR50) per registration;
  • land registry – HUF12,600 (approximately EUR35) per registration or real estate; and
  • Hungarian patent office – HUF16,500 (approximately EUR45) per registration or intellectual property.

As briefly mentioned in 2.2 Charges or Interest over All Present and Future Assets of a Company, the assets subject to security do not need to be individually identified; a general description would be sufficient.

However, individual and detailed descriptions are required in certain cases (real estate, ownership interest in a company).

In the case of receivables, the most important element is that the relevant receivables can be identified at the time of enforcement.

The grant of security or guarantees is generally not restricted in Hungary.

Lenders usually satisfy their claims via out-of-court enforcement by selling the relevant asset of the debtor, as such procedure is shorter and less costly than a court enforcement procedure.

There is no central search for all liens, but there are separate, publicly available registers (land registry, collateral registry, company register, etc), where the existence of most of the liens can be checked.

However, certain types of lien (eg, security deposit) are not registered in any registry.

Pursuant to Hungarian laws, a security that has an accessory nature (including all pledges, mortgages and suretyships) is terminated when the underlying obligation is terminated (ie, all the outstanding amounts under the facility agreement are fully and irrevocably repaid).

It is an administrative step that the security so terminated must be deregistered.

Usually the parties enter into a release agreement (which bears the same formalities as the original agreements – ie, notarial form), in which they confirm the termination of the security documents and also regulate the lender's (or security/collateral agent's) obligation to make the relevant deregistration from the relevant registries or provide the security provider with the necessary documents to enable it to make the deregistration itself.

In Hungary, a secured lender may only enforce its collateral if the secured obligation becomes due and payable and the original obligor fails to comply with its payment obligation in time.

This means that the secured creditors are not allowed to enforce the security, even if the borrower or any other obligor breaches any obligation (other than a payment obligation) under the facility agreement or any other finance document, if the facility agreement is not accelerated due to such breach and the outstanding amounts are not declared due and payable.

The enforcement of security may be made via a court enforcement procedure or an out-of-court enforcement procedure.

Court Enforcement Procedure

Court enforcement procedures typically take one to two years, which is longer than out-of-court enforcement procedures.

If the security documents were incorporated in a notarial deed, direct enforcement might be available (provided that the notarial deed contains all the relevant provisions prescribed by the Hungarian court enforcement act), in which case the notary attaches an enforcement writ on the notarial deed and sends it to the court bailiff for enforcement.

Out-of-Court Enforcement Procedure

Out-of-court enforcement includes the sale of the relevant assets either by the beneficiary of the security or by a third person appointed by such beneficiary. Out-of-court enforcement may also include the acquisition of the relevant asset by the beneficiary.

Usually, parties regulate the terms of the out-of-court enforcement (sale and acquisition) in the security agreement in order to avoid any disputes at the time of enforcement.

The main difference between court enforcement and out-of-court enforcement is that in a court enforcement procedure the seller acquires the relevant asset free of any claims and encumbrances (ie, all security registered in any registry with respect to the relevant asset will be deleted after the sale within the court enforcement procedure), while in an out-of-court enforcement the encumbrances and claims of other creditors (if any) will remain.

The choice of a foreign law as the governing law of a contract and the submission to a foreign jurisdiction will be upheld in Hungary, provided that:

  • regarding choice of law, pursuant to Hungarian and directly applicable EU laws, the governing law of the agreement shall be Hungarian (or other than the actual governing law); and
  • regarding submission to foreign jurisdiction, if the Hungarian courts have no exclusive jurisdiction over the matter (it is highly unlikely that Hungarian courts would have exclusive jurisdiction in project financing matters).

In Hungary, both an arbitral award and a judgment by a foreign court are enforceable against a Hungarian company without a retrial of the merits of the case, subject to certain reservations.

In the case of arbitral awards, such reservations include the provisions of Legal Decree No 25 of 1962 on publishing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards shall be taken into consideration, including the following:

  • the party against whom the award is invoked was not provided with proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present his or her case;
  • the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties;
  • the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority; or
  • the recognition or enforcement of the award would be contrary to the public policy of Hungary.

In the case of foreign judgments, the provisions of Hungarian and EU international private laws and the Convention of 30 June 2005 on Choice of Court Agreements are relevant when acknowledging a foreign judgment.

If the enforcement is conducted by Hungarian authorities, the relevant documents must be filed to such authority in the Hungarian language; if the document is in a foreign language, it must be supplied with an official Hungarian translation thereof.

According to Act CCXXXVII of 2013 on credit institutions and financial enterprises (the Banking Act), granting loans is a licensable financial service, if provided on a regular basis, for consideration and involving the conclusion of deals that have not been individually negotiated.

This rule applies to all lenders.

Foreign lenders may provide cross-border lending in Hungary, provided that they are incorporated in an EU Member State or an OECD Member State, and provided that they have a licence to grant loans in their home country.

Unlike lending activities, granting security or guarantees to foreign lenders is not restricted in any way in Hungary.

However, due to COVID-19 legislation, the approval of the relevant minister is required for the establishment of collateral over the strategic assets of strategic companies.

The foreign investment regime normally applies to foreign investors incorporated in third countries (ie, outside of the EU and Switzerland) or to foreign investors whose direct or indirect parent with a majority holding is incorporated in a third country and intends to acquire a Hungarian company (strategic company) engaging in the following businesses, amongst others:

  • the production of weapons and ammunition;
  • the operation of payment systems;
  • the provision of insurance services; or
  • energy production (electricity, gas).

Such a foreign investor shall obtain the approval of the relevant minister before acquiring a 25% (or 10% in the case of joint stock companies) ownership interest in a strategic company.

Due to COVID-19 legislation, the foreign investment regime has changed, resulting in the following:

  • the scope of the strategic companies has widened;
  • foreign investors include companies incorporated not only in third countries, but also in the EU and Switzerland;
  • not only the acquisition is subject to approval, but also, amongst others, the establishment of collateral over the strategic assets of a strategic company; and
  • the acquisition threshold is 10%.

The Hungarian tax legislation does not impose any restrictions on payments abroad or repatriation of capital by foreign investors.

Hungarian project companies may maintain offshore foreign currency accounts. However, the foreign bank account numbers, the name of the foreign financial institution and the date of the opening and closing of such bank accounts must be reported to the Hungarian tax authority.

It should be noted, however, that tax rules require Hungarian companies to settle their tax payment liabilities through their local (ie, Hungarian) bank accounts.

For the sake of completeness, it also has to be mentioned that Hungary is involved in the exchange of financial account information as a party to the OECD's Multilateral Competent Authority Agreement on Automatic Exchange of Financial Accounts Information, as well as by having implemented the DAC2 Directive of the European Union and concluded a FATCA agreement with the United States.

Project Documents

Project documents do not need to be registered with any government authority in order to be valid and enforceable.

Financing Agreements

Facility agreement and intercreditor agreement

Neither the facility agreement nor the intercreditor agreement need to be registered or filed with any governmental authority in order to be valid and enforceable.

However, market practice is for the financing agreements (to the extent they are governed by Hungarian law) to be incorporated in a Hungarian notarial deed in order to ensure direct enforcement of the lenders' claims.

Direct enforceability means that the lenders do not need to initiate a lawsuit to assess their claims prior to enforcement, but the notary who prepared the notarial deed of the facility agreement encloses the notarial deed with an enforcement writ (to the extent the agreement contains those elements that are required for direct enforcement – ie, a commitment for performance and consideration, or a unilateral commitment; the names of the creditor(s) and the borrower/obligor; the subject matter, amount (including calculation of interest) and legal grounds of the obligation; and the method and maturity date(s) of performance) and sends the notarial deed directly to the court bailiff, who can then initiate the court enforcement.

Security documents

Strictly speaking, the security documents do not need to be registered or filed with any government authority in order to be valid and enforceable, but in certain cases the filing of the security document (or an extract thereof) is required for the security established pursuant to such agreement to be valid and enforceable.

Also, due to the temporary pandemic legislation, if a company is qualified as a strategic company, the security documents creating security over its strategic assets shall be filed with the Ministry of Innovation and Technology, and the Ministry's consent is required in order for the security documents to be valid and enforceable.

The notarisation requirement is also applicable to the security documents.

Arable land may only be owned by Hungarian natural persons. Foreign natural persons and legal entities (either Hungarian or foreign) are not allowed to own arable land.

Lands that are exempted from cultivation and reclassified to industrial property may be owned by a foreign entity, subject to the approval of the relevant authority.

Hungarian legislation has developed its own form of security agent/trust – ie, the collateral agent. Consequently, if a cross-border transaction involves a security agent, a collateral agent shall also be appointed in accordance with Hungarian laws so that the security could be validly created and enforced by the security agent.

Appointment

The creditors may appoint (in writing) either one of the creditors or any independent third party to act as their collateral agent (in Hungarian: zálogjogosulti bizományos). The relevant provisions of the appointment are usually inserted in the security agency clause of the intercreditor agreement or the facility agreement. If the conclusion of the Hungarian security documents is a condition subsequent, and there had been no chance to comment on the intercreditor agreement or the facility agreement (as applicable), a separate collateral agent appointment letter shall be signed by the lenders.

The appointment of the collateral agent is effective vis-á-vis third parties from the date the collateral agent is registered in the relevant registry.

Rights and Obligations of the Collateral Agent

Once the collateral agent is appointed, it is the only person who is entitled to sign the security documents on behalf of the lenders, it will be registered in the relevant registries, and it will be entitled to enforce the security.

This also means that the lenders are not entitled to exercise the rights of a secured creditor with respect to the Hungarian security during the appointment of the collateral agent.

The transfer of the secured obligation does not have any effect on the collateral agent's rights and obligations, meaning that there is no need to amend the security documents if one lender transfers or assigns its portion in the facility to a new lender, as long as the collateral agent remains the same.

The collateral agent shall separate all funds received during the enforcement of security, so those funds will not form a liquidation pool in case of the insolvency of the collateral agent.

Resignation of Collateral Agent

Either the collateral agent or the lenders may request the resignation of the collateral agent.

In the case of resignation, the lenders shall request either to register them as pledgees or mortgagees in the relevant registries or they may appoint a new collateral agent, who will be registered as the beneficiary of the relevant security interests.

There are no mandatory deadlines for completing such a resignation; however, the resignation will only be effective against third parties when the pledgees or mortgagees or the new collateral agent is registered in the registries.

The priority of security interests is determined by the date of their creation – in other words, when the relevant security is registered in the relevant registries. Contractual change of priority of security is only upheld if such change of priority is registered in the relevant registries.

Subordination may be created contractually, but such contractual subordination does not necessarily survive the insolvency of the borrower. For example, if a borrower has senior and junior (subordinated) lenders but all lenders enjoy the same security, in the case of a court enforcement or insolvency procedure the claims of all the lenders will be satisfied at the same time. If the proceeds of the enforcement or insolvency are not sufficient to satisfy all the claims, the lenders' claims will be settled proportionally.

In the insolvency of the borrower, the claims of the owners of such insolvent borrower are subordinated to any other claims of the given borrower by virtue of law.

Hungarian law does not require the project company to be organised under Hungarian law. However, in certain cases, when a licence is required for the conduct of a business (that is subject to the project – eg, the generation of electricity), the project company must be incorporated in Hungary, otherwise it could not obtain the relevant licence.

In most cases, it is also more sensible for the project company to be incorporated in Hungary, for taxation purposes.

The reorganisation of companies may take place at different levels, with a view to preventing insolvency and ensuring the economic viability of the company.

Generally, a reorganisation is feasible within the context of a merger, a demerger, a carve-out or changes in the ownership structure of the company. The reorganisation may also occur as a result of contractual-based restructuring (including the transfer of loans) and formal insolvency proceedings.

There are two types of insolvency proceedings for business entities under the Insolvency Act:

  • bankruptcy proceedings (csődeljárás); and
  • liquidation proceedings (felszámolási eljárás).

Under Hungarian law, there are no triggers that make the commencement of a reorganisation compulsory; there are only indirect obligations for shareholders of the debtor.

From the commencement of liquidation proceedings onwards, all assets of the debtor fall within the scope of the liquidation pool and any claim against the debtor (including a lender's claim under a loan agreement) may only be satisfied within the framework of the liquidation proceedings.

As soon as the liquidation commences, all financial obligations of the debtor become due, regardless of the original terms of the underlying agreement. In liquidation proceedings, only the uncontested claims registered by the liquidator can be set off against the claims of the debtor.

As a main rule, in terms of a creditor's right to enforce any security, the standalone enforcement proceedings against the debtor terminate, as all claims must be enforced solely in the liquidation proceedings.

The claims of creditors are satisfied based on a ranking of liquidation priorities determined by the Insolvency Act. In liquidation proceedings, the claims of creditors are ranked in the following order of priority:

  • costs of liquidation;
  • parts of claims secured by pledges/mortgages established before the commencement date of liquidation proceedings, which were not satisfied under the rules applicable to priority;
  • alimony claims, life annuity payment claims and compensation benefits to private individuals;
  • other claims of private individuals not originating from economic activities (eg, damages, warranty claims);
  • taxes and other public dues, and public utility charges;
  • other claims (eg, any unsecured claims);
  • default interest and late charges, surcharges, penalties and similar debts; and
  • claims held by a shareholder (member) with majority control, or executive officer or executive employee of the debtor business entity, or economic operators under the debtor's majority control, or entities/persons benefiting from the debtor's gratuitous commitments.

Creditors have a secured position in the liquidation proceedings if any collateral over the assets of the debtor secures their claims. Secured creditors enjoy priority in satisfaction regardless of the order above as a special order of priority prevails, but there are also costs of liquidation to be taken into account before the secured creditor’s claim. Unsecured creditors may receive satisfaction, subject to the availability of funds, only at the end of the liquidation proceedings.

Once the secured creditors' claims have been satisfied, the remaining proceeds will be distributed among the unsecured creditors. Creditors in the same group are distributed with funds on a pro rata basis; once a higher ranked group is fully compensated, the creditors in the next group become entitled to satisfy their claims from the remaining funds.

The creditors must ensure that a valid security interest is established and – depending on the security interest – it is registered in the respective registry. If the security is not registered in the respective registry, the security will not be enforceable in the insolvency of the debtor or security provider.

The creditors may appoint one of themselves or a third party to be their collateral agent (please see 5.3 Agent and Trust Concepts). In the appointment of a collateral agent, the creditors must ensure that the collateral agent is registered in the relevant registries as security holder, otherwise the collateral agent will not be entitled to enforce the security on behalf of the creditors.

No entities are excluded from bankruptcy proceedings under the Insolvency Act. There is a restriction in terms of the commencement of bankruptcy proceedings: namely, bankruptcy proceedings can only be initiated by the debtor.

Insurance provided by insurance companies is usually free from any restrictions, controls, special fees or taxes.

The pledge or assignment of insurance proceeds is a general security in project financing transactions.

Also, it is common in Hungary for the parties to set a threshold, and amount over said threshold must be used for the mandatory prepayment of the loans.

There are no restrictions in Hungary on the payment of the insurance proceeds – ie, they can be paid to either domestic or foreign creditors, subject to the underlying agreement of the parties.

Hungary does not levy withholding tax on payments made to companies. Therefore, payments made to lenders would not be subject to withholding tax.

Hybrid mismatch rules were recently introduced to the Hungarian legislation that would chiefly be relevant for borrowers, as they may impact the deductibility of certain payments from their corporate income tax base.

These rules aim to tackle double deductions or deductions without inclusion outcomes that result from the differences in the legal characterisation of payments, financial instruments and entities, or in the allocation of payments under the laws of two or more jurisdictions.

Hungarian tax rules do not limit the interest that can be charged per se. Nonetheless, the following regimes may limit the deductibility of interest payments of borrowers who are subject to the Hungarian corporate income tax.

Interest Deduction Limitation Rules

From 1 January 2019, Hungarian tax law has provided for interest limitation rules in line with the EU Anti-Tax Avoidance Directive (Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market).

Excess financing costs (ie, the amount of the net financing costs exceeding the higher of the following) would qualify as non-deductible and consequently increase the pre-tax profit when determining the corporate income tax base:

  • 30% of the earnings before interest, tax, depreciation and amortisation (EBITDA); or
  • the statutory threshold of HUF939.81 million (approximately EUR2.647 million).

The amount of the net financing costs is equal to the positive difference between (i) the financing costs and (ii) interest income and other economically equivalent taxable income (including amounts with which the corporate income tax base is increased pursuant to a transfer pricing adjustment).

The following items should be taken into account as financing costs:

  • interest expenses;
  • any costs and expenses that are economically equivalent to interest; and
  • costs and expenses incurred in connection with the raising of finance (also covering amounts with which the corporate income tax base is decreased pursuant to a transfer pricing adjustment and amounts included in the historic cost of an asset).

The above tax base increasing item does not have to be applied by a borrower as long as it qualifies as either a financial institution, investment enterprise, alternative investment fund, management company of undertakings for collective investment in transferable securities, insurance company or reinsurance company.

The unused interest deduction capacity can be carried forward (ie, the amount can be used to reduce the excess financing costs in the subsequent tax year or years), but this reduction cannot exceed the amount of the excess financing costs. The interest deduction capacity of a given tax year is 30% of the pertaining EBITDA minus the net financing costs incurred for that tax year. Unused interest deduction capacity should be utilised on a FIFO-basis (first in, first out) and can only be carried forward for five tax years.

If the corporate income tax base was increased in accordance with the above, it can be reduced by up to the amount of such increase in the subsequent tax year or years; however, the amount may not exceed the interest deduction capacity calculated for the tax year in which such reduction is applied.

Special rules may apply to a borrower that is a member of a Hungarian corporate income tax group or a consolidated group for financial accounting purposes.

Transfer Pricing

Interest payments between related parties should be in line with the arm's-length principle and generally supported with appropriate transfer pricing documentation.

The project agreements are usually governed by the laws of incorporation of the relevant contractor/supplier or Hungarian law.

If the contractor or the supplier is incorporated in a third country (outside the EU), the parties may set English law as the governing law of the relevant project document.

The governing law of the financing agreements mainly depends on the composition of the lender group.

If only one Hungarian lender is involved in the financing, the governing law of the financing agreements is Hungarian.

If there are more lenders, it is more likely that the governing law of the financing agreements (in particular, the facility agreement) is governed by the laws of the jurisdiction where most of the lenders are domiciled (in Hungary this is usually Austrian or German law).

Occasionally (especially if the project is of high value), the governing law of the financing agreements could be English.

Security documents are usually governed by Hungarian law, except sometimes in the case of guarantees, where the laws of the jurisdiction in which the guarantor is incorporated. Please see 9.2 Financing Agreements.

Wolf Theiss

Kálvin tér 12-13
Budapest
H-1085
Hungary

+36 1 4848 800

+36 1 4848 825

budapest@wolftheiss.com www.wolftheiss.com
Author Business Card

Law and Practice

Authors



Wolf Theiss has been present in the Hungarian market since November 2007. The Budapest team of 30 professionals has used its local and international experience to handle complex domestic and multi-jurisdictional matters, and regularly advises foreign investors on setting up new businesses, or on equity or asset acquisitions from existing businesses, as well as on arranging joint ventures with local partners in Hungary and the CEE/SEE region. The lawyers provide client-focused and industry-driven advice in all aspects of investment and business law, including M&A, banking and finance, restructuring, projects and infrastructure, each in combination with first-class tax advice if so desired. The main strength of the Budapest office is energy law. The team also has a particular strength and niche expertise in handling matters arising in the regulated industries, such as energy, banking, real estate and environmental law, capital markets transactions, telecommunications and life sciences.

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