Project Finance 2022

Last Updated September 23, 2022

Taiwan

Law and Practice

Authors



LCS & Partners is an elite corporate law firm in Taiwan and regularly advises top-tier domestic and international clients on complex and innovative transactions. LCS has more than 80 attorneys licensed to practise in Taiwan, China, Canada and the United States, with numerous members having received LL.M., J.D. and/or S.J.D. degrees from law schools in the United States. Since being founded in 1998, LCS has advised domestic and international clients on the largest and most significant deals in Taiwan, and has been a market leader in areas such as banking, M&A, capital markets, cross-border transactions, energy, real estate, fund formation, antitrust and intellectual property. The attorneys pride themselves on being able to handle the largest and most complex transactions.

The institutions participating in project finance differ slightly depending on the type of project. For public-private partnership transactions, the sponsors vary between projects; lenders are usually domestic banks.

As renewable energy is the main policy in Taiwan, the project sponsors for offshore wind farm projects in Taiwan are internationally renowned developers such as WPD, CIP, Swancor, Mitsui, Orsted and Northland Power. In solar projects, both local developers (eg, JV holding) and foreign developers (eg, Vena Energy) are the main sponsors.

In the past, due to the non-recourse or limited recourse nature of project finance, most of the Taiwanese banks did not actively participate in project finance; project financing was usually arranged or funded by foreign banks (including MUFG, BNP Paribas, HSBC and DBS, through their respective Taipei branches or otherwise). As there are more and more precedents in project financing and the market practice has gradually built up, large local banks (such as CTBC Bank, Taipei Fubon Bank, Cathay United Bank, E.SUN Bank and SinoPac Bank) have also been active recently in project financing relating to renewable energy.

Nonetheless, the state-owned banks (eg, Bank of Taiwan, Cooperative Bank) have a risk-averse mindset and have not actively participated in project finance. In general, local banks are reluctant to participate in projects they are not familiar with, and state-run banks are even more conservative about providing funding in large-scale projects.

As public-private partnerships (PPP) became popular in Taiwan (with of the most famous cases being Taiwan High Speed Rail and the Electronic Toll Collection System for highways), the Act for Promotion of Private Participation in Infrastructure Projects (the "PPP Act") was enacted in 2000 and most recently amended in 2018, covering various types of infrastructure, such as sanitation, medical facilities, common conduits, environmental pollution prevention and water supply. The Act is governed by the Ministry of Finance. It not only establishes a set of fair bidding procedures but also offers many incentives, such as favourable rentals or tax exemptions.

To reduce the foreign exchange issues as listed in 4.1 Restrictions on Foreign Lenders Granting Loans, there will be TWD-denominated base facilities and foreign currency-based facilities.

In addition, there are often equity contribution requirements, which may take the form of shareholder loans or subscriptions for shares in the project companies. To secure the rights of the lenders, shareholder loans usually take the form of unsecured subordinated loans.

For syndicated loan projects (which are also common in Taiwan), the obligation of the borrower is usually joint and several. There will be one or several facility agent(s) to manage such syndicated loan, and intercreditor clauses (or a separate intercreditor agreement) to set out the rights and obligations among multiple lenders.

For projects with more than one project company, the lenders sometimes request each project company to be co-borrowers and to be jointly and severally liable by way of guarantee for the other project company’s obligations under the finance documents. In addition to the syndicated loans, the project companies may enter into a two-way intercompany loan agreement between themselves to allow for intercompany transfers where necessary.

In respect of securities, there is usually a security agent (which is in practice a bank with a local presence) among the creditors to manage the onshore collateral, due to certain restrictions in Taiwan.

Consistent with a typical project financing, the recourse of the debt finance parties is usually expressly stated as being limited to the assets, rights and cash flows of the project companies and their share ownership.

Renewable energy projects and their financing have been active in Taiwan recently, and are expected to be more active in the coming year.

Among the ongoing solar projects and onshore and offshore wind farm projects, the landmark cases were the Formosa 1 Offshore Wind Power Project (F1), which was the first offshore wind farm project in Taiwan and closed in 2018, followed by subsequent milestone projects including Yunlin Offshore Windfarm Project, which closed in 2019, and the Greater Changhua SE offshore wind farm, which reached financial close in November 2021. Ongoing offshore wind farm project financings include the syndicated loan extended for the Hailong Projects and other ongoing financing deals for upcoming wind farm projects, solar projects or energy storage projects.

In addition, since solar projects have been the major type of renewable energy utilised in Taiwan, various project financings for solar projects are also growing in the market.

A novel market for project financing is energy storage projects. As the new energy trading platform of Taipower (ie, the national transmission enterprise in Taiwan) launched in Taiwan to take care of the energy transformation of the national grid and stable power consumption nationwide, it is also expected that there will be project financing in respect of such projects.

The following assets are typically available as collateral to lenders:

  • mortgage of real estate (land) and chattel mortgage/pledge over plant, machinery and equipment (eg, turbine, switch board);
  • assignment of receivables under material contracts signed by the project company (eg, project contracts, land lease agreements and insurances);
  • pledge over cash deposited in bank accounts; and
  • pledge over shares in companies incorporated in Taiwan.

The applicable formalities and perfection requirements are outlined below.

General

In respect of each collateral listed above, the security agent and the project company should enter into an agreement to identify the respective assets/rights to be pledged/mortgaged. Since there is no “floating charge” concept under Taiwan law, a general security agreement in which no specific asset is identified may not be enforceable under Taiwan law.

Real Estate Mortgage

To create a real estate mortgage, the mortgagee is not required to possess the real estate. However, registration with the competent authority would be necessary to create such real estate mortgage under Taiwan law. The registration is material for determining the priority of the mortgage.

Chattel Pledge/Mortgage

To create a chattel pledge, the mortgagor is not required to deliver the possession of the machinery and equipment.

This is also the case for a chattel mortgage. However, registration with the competent authority would be necessary in order for the mortgagee to claim the chattel mortgage against a bona fide third party.

It is more common to create a chattel mortgage instead of a chattel pledge in Taiwan, since the security agent does not have to possess the machinery and equipment, and the chattel mortgage is registered with the authority as a matter of public record.

Assignment of Receivables Under Material Contracts

In addition to the execution of relevant assignment agreements, delivery of the notice of assignment is required under Taiwan law. If the notice of assignment is not delivered, the assignment will not be effective against the debtor until the debtor has been notified. It should also be noted that, although it is commonly requested by the lenders, the acknowledgement of assignment by counterparties is not a legal requirement for the assignment.

Pledge Over Cash Deposited in Bank Accounts

Since there is no “floating charge” concept under Taiwan law, a general security agreement in which no specific asset is identified may not be enforceable under Taiwan law. Therefore, if a pledge is set on a specific bank account, then the scope of the guarantee will be limited to the amount at the time the pledge is set. In practice, the creation of a pledge is valid between the pledgee and the pledgor when the certificates of the shares have been endorsed and delivered to the pledgee. However, the creation of the pledge cannot be claimed against the company unless the company is notified of the creation of the pledge.

Securities

A Taiwan-incorporated private project company may determine whether to issue paper share certificates at its will, but it is market practice that the security agent requests to pledge the shares in the form of paper share certificates. In this respect, according to Article 908 of the Taiwan Civil Code, if the subject of a pledge is shares for which no holder is named, the creation of the pledge becomes effective by physical delivery of the shares to the pledgee. If the subject of a pledge is shares for which a holder is named, the following applies:

  • such holder must endorse the back of the shares;
  • such shares must be physically delivered to the pledgee; and
  • the pledgee’s name or residence address must be listed on the company registry in order to assert its rights against the company.

A lien cannot be created in favour of a security agent unless it is created under law in Taiwan; see 2.6 Absence of Other Liens for details.

As mentioned in 2.1 Assets Available as Collateral to Lenders, there is no “floating charge” concept under Taiwan law.

No notarisation or stamp duty is required for the creation of security over different types of assets. Whether registration is required depends on the type of assets provided as security.

Both a chattel mortgage and a real estate mortgage require registration.

The registration fee for creating a chattel mortgage over a movable asset is TWD900. The registration fee for creating a mortgage over real property is equivalent to 0.1% of the total amount secured by the mortgage.

There is no registration requirement for the assignment of receivables under material contracts, pledges over cash deposited in bank accounts and pledges over shares in companies.

There is no “floating charge” concept under Taiwan law.

To create a chattel mortgage, the mortgagor is not required to deliver the possession of the machinery and equipment. However, registration with the competent authority would be necessary in order for the mortgagee to claim the chattel mortgage against a bona fide third party.

As floating charges are not feasible under Taiwan law, the pledge covers only the cash in the bank account when such pledge is created and notified to the account bank. The pledge will not cover the cash deposited in the bank account after the account bank is notified of the pledge. To deal with this issue, the pledgor, in practice, will be required to periodically (usually one to three months) confirm with the account bank and the pledgee that the amount of cash in the bank account is still subject to the pledge, to ensure a continuing pledge covering the cash deposited after the creation of the pledge.

In order to create a pledge over shares of a Taiwan company, an agreement in writing is required. According to Article 908 of the Taiwan Civil Code, if the subject of a pledge is shares for which no holder is named, the creation of the pledge becomes effective by physical delivery of the shares to the pledgee. If the subject of a pledge is shares for which a holder is named, the following applies:

  • such holder must endorse the back of the shares;
  • such shares must be physically delivered to the pledgee; and
  • the pledgee’s name or residence address must be listed on the company registry in order to assert its rights against the company.

The creation of a pledge is valid between the pledgee and the pledgor when the certificates of the shares have been endorsed and delivered to the pledgee. However, the creation of the pledge cannot be claimed against the company unless the company is notified of the creation of the pledge.

For projects subject to the PPP Act, approval of the authority in charge of the PPP project is required before project assets are encumbered for the purpose of project finance.

In general, only statutory liens are available under law in Taiwan and cannot be created by agreement between the parties. Under Taiwan law, a lien is the right of a creditor who is in possession of the movable property of another to retain that movable property if there is a connection between the occurrence of the creditor’s claim and that property and the creditor has not received payment upon maturity of the claim – ie, the possession of the property by the creditor and the fact that there is some connection between the creditor’s claim and the property are two mandatory requirements for the creation of this type of security. No written agreement or registration is required.

These liens are not centrally recorded nor searchable.

The release of each type of security generally depends on whether the security interests are registered.

For security interests that are registered with the relevant authorities (such as a mortgage over real property or a chattel mortgage), the parties would generally need to apply to cancel the registration of the security. Usually, the authority requires the parties to submit either a release/termination agreement or written confirmation to serve as proof.

For security interests that are not registered, the following applies in addition to a release agreement or a termination agreement:

  • if the pledge is created over movable property, the pledgee should deliver possession of the movable property back to the pledgor; and
  • if the pledge is created over securities, the certificates of the pledged securities must again be endorsed by both the pledgee and the pledgor indicating release of the pledge and the certificates delivered back to the pledgor.

The general enforcement procedures for different collaterals are as follows.

Real Property

If compulsory enforcement of real property is required under Taiwan law, the court will conduct the auction according to the Compulsory Enforcement Act.

Taiwan law also allows agreements to be made where the ownership of the collateral will be transferred to the mortgagee upon expiry of the mortgage, if the loan has not been fully paid off. However, such agreements must be registered so that a claim can be made against a third party. If the value of the collateral exceeds the secured creditors’ rights, the mortgagee should return the excess to the mortgagor.

Chattel

The granting of security over chattels can be divided into two types: pledge and mortgage. Pledges over chattels require physical possession. For equipment such as general machinery, guarantees will be provided in the form of a chattel mortgage.

If a debtor defaults on a pledge over chattels, the law provides the following ways for a pledgee to execute the pledge.

  • The ownership of pledged collateral will be transferred to the pledgee upon failure to pay the amount owed at maturity if previously agreed to by the pledgee and the pledgor, and the pledgee shall obtain ownership of the pledged collateral. Any portion of the property's value in excess of the claimed amount secured shall be returned to the pledgor; if the amount is insufficient to repay the claimed amount secured, the pledgee may further demand repayment of the remaining unpaid portion from the pledgor.
  • If the pledgee and the pledgor do not have any agreement in advance, the pledgee who has not received payment upon maturity of the claim may enter into a contract after the default to acquire the ownership of the pledged collateral or dispose of the pledged collateral by any means other than an auction, unless doing so would be prejudicial to the interests of the other pledgees.
  • If payment is not received upon the maturity of the claim and no agreement has been reached between the parties as indicated in the previous points, the pledgee may also choose to sell the pledged collateral by auction and receive payment from the proceeds of the sale, provided the pledgee notifies the pledgor before the sale.

If a debtor defaults on a chattel mortgage, the mortgagee can take immediate possession of the movable asset. If the asset is likely to depreciate to such an extent that the mortgagee's interest will be damaged, the mortgagee can immediately dispose of the asset. Otherwise, the debtor has ten days to redeem the property and pay the mortgagee's costs. If the debtor does not redeem the property, the mortgagee can sell the property via public auction, which can be either a court auction following an enforcement order, or a public auction attested by a notary public, police authority or certain other institutions. The mortgagee must publicly announce the intended sale, giving at least five days' notice.

Please note that a promise to transfer ownership of the collateral of a mortgage prior to the end of the liquidation period will not be valid under Taiwan law. However, such a promise will be valid if it is made after the liquidation period has ended, even if the loan has not been paid off. A promise to transfer ownership of the collateral of a pledge prior to the end of the liquidation period prior to full repayment of the loan is allowed under certain circumstances.

Receivables

If the security provider agrees, a pledgee can enforce its security interest without court proceedings; if the security provider does not agree, the pledgee must obtain a court order to enforce its security interest.

According to Taiwan law, if the enforcement is made based on the debtor’s claim of a third party’s monetary debt to the debtor, the court should issue a seizure order prohibiting the debtor from collecting or otherwise disposing of the monetary debt. In this scenario, the enforcing court may seek the opinion of the creditor, issue orders allowing the creditor to collect, or transfer such debt to the creditor. If deemed appropriate, the court may order the third party to pay to the court, which will transfer the money received to the creditors. If compliance with these provisions proves difficult, then the enforcement will be executed by auction or sale, similar to the enforcement provisions for a chattel pledge.

Securities

The pledgor and pledgee can agree in principle to sell the pledged securities at public auction. Also, after the maturity of the loan, the pledgor can agree to transfer title to the securities to the pledgee or to dispose of the securities by a method other than public auction, as long as it is not detrimental to other security interest holders (if any).

If the pledgor does not agree to these methods, the pledgee must apply to the courts and obtain an execution title to enforce the auction of the collateral. The pledgee may then receive payment from the proceeds of the sale.

Taiwan laws have established processes for the recognition of foreign judgments or arbitral awards.

For a foreign judgment to be recognised in Taiwan, such judgment must not:

  • be rendered by a foreign court that lacks jurisdiction under Taiwan law;
  • be a default judgment rendered against the losing defendant (unless otherwise permitted by applicable laws);
  • violate the public order and morals of Taiwan; and
  • be rendered by a foreign country with no mutual recognition between such foreign country and Taiwan.

For a foreign arbitral award to be recognised in Taiwan, such arbitration must not violate the public order and morals of Taiwan, and the matter at dispute must be arbitrable under Taiwan law.

Any foreign judgments or arbitral awards that violate the provisions listed in 3.2 Foreign Law will not be recognised in Taiwan. Under Taiwan law, parties may generally agree to submit their disputes to a foreign court or an arbitral tribunal located outside of Taiwan. If the matter does not fall under the following circumstances, the court does not usually rule out such decision:

  • it would be unfair for the subject matter to be adjudicated by the chosen jurisdiction;
  • the consent of a party to submit to the chosen jurisdiction is obtained by fraud, duress or other unlawful means;
  • the parties are not on an equal footing when they enter into the submission-to-jurisdiction agreement;
  • it would be inappropriate or inconvenient for the chosen jurisdiction to adjudicate the subject matter; and
  • the country of the chosen jurisdiction does not recognise and enforce judgments of the Taiwanese courts on a reciprocal basis.

Taiwanese courts recognise arbitration agreements requiring the submission of disputes to arbitration institutions or ad hoc arbitration outside of Taiwan. The arbitral awards rendered under such arbitration agreements are generally recognised and enforceable, unless any of the grounds for denial of recognition or enforcement prescribed under the Arbitration Act applies.

In principle, there is no restriction on a foreign lender’s ability to enforce its rights over security created under Taiwan law. However, a foreign lender would have to prepare a notarised/legalised version of the certificate of incorporation (or any similar official documents) with a Chinese translation of the documents to prove its identity and/or its appointment of an attorney to present on behalf of such foreign lender in Taiwan. All other documents to be filed with the Taiwanese court must also be in Chinese or be accompanied by a Chinese translation.

Any exchange of TWD amounts into any other currency in excess of the equivalent of USD50 million (annual aggregate settlement amount) requires prior written approval from the Central Bank of Taiwan. This FX regulation is triggered only by an exchange of TWD-denominated amounts; it does not apply if the transfer to/by a company is not in TWD and there is no currency exchange from TWD. As an example, where the borrower receives USD-denominated loan and makes a payment in USD, there is no foreign exchange and the FX regulations would not be relevant.

In practice, the Central Bank of Taiwan is unwilling to issue approvals in the context of loan transactions as its general policy is to promote funding via domestic financial institutions (without a need to exchange currency).

In addition to the restrictions set forth in 3.1 Enforcement of Collateral by a Secured Lender, if the chattel/real estate mortgagee is a foreign company, it must at least have a branch office established in Taiwan before the competent authority will allow the registration of the mortgage to be made.

Foreign Investment Approvals from the Investment Commission of the Ministry of Economic Affairs of Taiwan (the IC) are required for foreign investment. According to the Statute for Investment By Foreign Nationals:

It shall be deemed a foreign investment if one of the following circumstances apply: (i) holding shares issued by an ROC company, or contributing to the capital of an ROC company; (ii) establishing a branch office, a proprietary business or a partnership in the territory of the Republic of China; and (iii) providing loan(s) to the invested business referred to in the preceding two Paragraphs for a period exceeding one year.

Approval from the IC must be obtained before any foreign investment may be implemented. As such, approval from the IC must be obtained regardless of whether the foreign investor is subscribing to new shares issued by Taiwanese companies, purchasing existing shares of Taiwanese companies, increasing investments in Taiwanese companies, or providing loans for more than one year to Taiwanese companies it has invested in.

Under the Company Act, in general a company should not pay dividends unless and until its losses have been covered, a legal reserve has been set aside, and there are surplus earnings left over. If a company pays dividends in violation of these requirements, creditors of the company may request the nullification of the dividend distribution and demand compensation for losses incurred. If the dividends are paid to a foreign parent company, they will be subject to withholding tax.

Any remittance and repatriation of funds to a party in another jurisdiction will be subject to foreign exchange control in Taiwan, as mentioned in 4.1 Restrictions on Foreign Lenders Granting Loans.

A project company may open and maintain a foreign currency account as long as it provides all the documents required by the bank for opening an account. Taiwan law does not prohibit a Taiwanese company from opening an offshore account in any other jurisdiction.

No registration is required for the financing or project agreements, except that certain security interests have to be perfected by registration as mentioned in 3.1 Enforcement of Collateral by a Secured Lender.

Stamp Tax

According to Article 5 of the Taiwan Stamp Tax Act, the following are subject to stamp tax:

  • receipts for monetary payments;
  • deeds for the sale of movables;
  • contracting agreements (agreements executed for the completion of a specifically ordered task); and
  • contracts for the sale, transfer and partition of real estate.

If none of the above types of documents will be issued, then stamp tax is not required.

Generally, borrowers will not issue receipts to lenders, and will not request lenders to issue receipts. Furthermore, the levy of stamp tax only occurs when receipts are issued within the territory of Taiwan: if the lender issues a receipt outside of Taiwan, such issuance will not be subject to stamp tax.

For the ownership of lands, the general rule under Taiwanese law is that, as long as there are reciprocal laws in a foreign country that give Taiwanese the same rights, an entity from such foreign countries may acquire land in Taiwan.

Foreign entities may not own forest land, land with mineral deposits, water sources or other pieces of land with similar resources. Aside from these restrictions, a foreign entity with a branch in Taiwan may acquire pieces of land in Taiwan if its home country grants reciprocity to Taiwanese nationals and entities.

The extraction of natural resources requires a licence under the Mining Act, and the operation of pipelines (for water, electricity, gas, etc) also requires a licence under the relevant laws and regulations governing such public utilities.

As general practice for a syndicated loan, syndicate member banks will appoint an agent bank to act for and on behalf of the syndicate member banks, including registering the agent bank as, for instance, a mortgagee and foreclosing the mortgaged property. In addition, there will be a clause in the syndicated loan agreement to the effect that the syndicate member banks’ claims against the borrower under the syndicated loan agreement are joint and several. Given this, the agent bank may claim the whole amount of the loan from the borrower and enforce the security and apply the proceeds from the security to the claims of all the lenders.

Nevertheless, under Taiwan law, it is questionable whether a third party that is not a creditor/lender could validly hold the collateral as a trustee or a security agent for other creditors/lenders. Pursuant to the Civil Code of Taiwan, a mortgage/pledge would not be validly created in favour of the creditor/mortgagee/pledgee if the mortgagee/pledgee does not have underlying credit against the debtor.

In general, the priority of competing security interests in Taiwan will be determined by the timing of perfection of such security interest.

If the debtor’s property is insufficient to pay off all debts, the order and distribution of the creditors’ repayment must be considered. To secure the rights of the lenders, the shareholder loans are usually in a form of unsecured subordinated loans, which will be subordinated to the secured lenders.

Although it is feasible in Taiwan and the lenders usually enter into intercreditor agreements to further determine the priority of competing security interest, under Taiwan law certain rights should take precedent over the settlement of secured claims, such as land value-added tax, land value tax, housing tax (subsection 2, Article 6 of the Tax Collection Act), wages of less than six months owed under labour contracts, pensions and severance payments (Article 28 of the Labour Standards Act).

The local law requirements depend on the type of project. For example, the Electricity Business Act requires an electricity business (ie, one that is involved in electric power generation, transmission and distribution, and retailing) to be a company limited by shares, unless it is a renewable energy enterprise.

The typical legal form of a project company for project finance is a “company limited by shares” under Taiwan law.

However, for PPP transactions, the participating private institution is a company established under the Company Act or any private juristic person approved by the competent authority.

Under Taiwan law, there are three types of insolvency proceedings:

  • bankruptcy proceedings;
  • special liquidation proceedings; and
  • corporate reorganisation proceedings.

Among those proceedings, special liquidation proceedings and corporate reorganisation proceedings are only available to a company limited by shares.

Bankruptcy Proceedings

When a company becomes insolvent, both the creditor and the company can file for bankruptcy with the court. However, please note that there is a rare situation in which the court may announce bankruptcy on its own initiative. After the filing, the court’s review period will last several months.

After the court determines that the liability of the company exceeds its assets and that the company has more than one creditor, the court would announce that the company is “bankrupt”. According to the Bankruptcy Act, the company will lose its management and disposal right of its asset. However, the ownership of its asset will not be impacted.

After the initiation of the bankruptcy process, the creditor must declare its claim within the period prescribed by the court, and the meeting of creditors convenes.

For the disposal of company assets, it is common for the court to hold auctions in accordance with the procedures set forth in the Taiwan Compulsory Enforcement Act. Although it is relatively uncommon, the Bankruptcy Act provides another approach whereby the company can propose a settlement proposal for review by the bankruptcy administrator, and submit such for the approval of the meeting of creditors; such plan should further approved by the court before the completion of the full bankruptcy procedure.

Special Liquidation Proceeding

Where circumstances exist that apparently impede the execution of liquidation, the court may, upon the application of any creditor, liquidator or shareholder, order the company to institute a process of special liquidation. The same shall apply where there is a suspicion that the liabilities of the company exceed its assets but, in such a case, only the liquidators may file an application.

However, if the liquidator finds the company to be insolvent, the liquidator should apply for bankruptcy.

Reorganisation Proceeding

Under Taiwan law, the following entities of a public company limited by shares are eligible to file a reorganisation proceeding to the court:

  • shareholders who have been continuously holding shares representing 10% or more of the total number of issued shares for a period of six months or longer;
  • creditors of the company who have claims equivalent to 10% or more of the capital from the total number of issued shares;
  • labour unions; or
  • two thirds or more of the employees of a company.

To approve the reorganisation proceeding, the court should determine whether the company is in financial difficulties, ceases its business or is likely to cease operations but is able to be re-established.

A reorganisation plan, which normally contains a restructuring of the company’s debts, will be prepared by the reorganisation administrators and should be agreed by the secured creditors’ meeting, unsecured creditors’ meeting and shareholders’ meeting, respectively (note that each meeting is adopted by a majority vote), and subsequently approved by the court. The shareholders’ meeting will not have a voting right if the liability of the company is larger than its assets. The reorganisation plan approved by the court is binding on the company and all its creditors and shareholders.

If the project company enters a bankruptcy proceeding, the security owned by the project company will become part of the bankruptcy estate; all enforcement actions against the project company will be stayed and all unsecured creditors must follow the bankruptcy proceeding.

For a company that enters into an insolvency process as listed in 6.1 Company Reorganisation Procedures, the priority of creditors is generally as follows.

  • Fees incurred in connection with the respective process – eg, for the reorganisation proceeding, the debts incurred for continued operation of the business of the company and expenses incurred in the process of reorganisation. For bankruptcy proceedings, the debts incurred for the management and distribution of the assets of the company and expenses incurred in the process of bankruptcy, etc.
  • Preferential creditors’ rights – see 5.4 Competing Security Interests for examples.
  • Secured creditors’ rights – lenders whose loans are secured by a real estate mortgage, a chattel mortgage, a chattel pledge or an account pledge fall under this category. However, guarantee or assignment of contract rights are not included. Please note that if the sale proceeds (from court auction through compulsory enforcement proceedings) are insufficient to repay the claims in full, a secured creditor may participate pari passu in the next rank (unsecured creditors’ rights).

•       Unsecured creditors’ rights.

•       Shareholders’ rights.

Under the Taiwan Bankruptcy Act, if the borrower is pronounced insolvent, the lenders could request the Taiwan court to revoke a transaction conducted by the borrower before it declared bankruptcy. The lender is also entitled to revoke the following actions conducted by the borrower:

  • the provision of security interest over existing debts within six months prior to the borrower's declaration of bankruptcy; and
  • prepayment of debt prior to its maturity within six months before the debtor's declaration of bankruptcy.

The following may apply for bankruptcy adjudication:

  • natural persons;
  • juristic persons; and
  • partnerships and any other incorporated association with a representative or an administrator.

An unincorporated association without a representative or administrator is excluded from a bankruptcy proceeding, and there is no special legislation applicable to such an entity.

Foreign insurance companies may not sell insurance policies in Taiwan unless they obtain a licence to do so from the Financial Supervisory Commission (FSC). In addition, for selling any new insurance policies in Taiwan, insurance companies must submit the terms and conditions of the proposed insurance policies to the FSC for approval before selling them in the market. Once licensed and approved, they will not be subject to any special restrictions or controls on their sale of insurance policies over project assets. If the insurance premium on the project assets is paid by a Taiwanese company or the Taiwan branches of a foreign company, such Taiwanese entity may have to bear the tax withholding obligation.

The insurance policies over project assets are payable to foreign creditors. Since the 1 November 2018 amendment to the Company Act, which recognised that a foreign company shall have the same capacity and enjoy the same rights as a local company, a foreign company should be able to be a pledgee under a pledge of the insurance policy in Taiwan.

For foreign lenders (ie, non-Taiwan residents or profit-seeking enterprises without a fixed place of business in Taiwan), the withholding tax rate for interest applicable to a corporate borrower is 20%, but the withholding tax rate for interest earned is 15%. Most tax treaties provide a reduced income tax withholding rate of 10%. Taiwan currently has tax treaties with 32 jurisdictions, so certain foreign lenders may enjoy a reduced income tax withholding rate based on the respective treaties between Taiwan and their country of incorporation. If the interest is paid to the foreign company, the borrower located in Taiwan is the party responsible for withholding such withholding tax.

Under the Income Tax Act, any interest income that is deemed Taiwan-sourced income is subject to Taiwan income tax in general. Typically, the interest paid by a local borrower to a foreign lender will be deemed Taiwan-sourced income.

According to Article 5 of the Taiwan Stamp Tax Act, receipts for monetary payments, deeds for sale of movables, contracting agreements (agreements executed for the completion of a specifically ordered task) and contracts for the sale, transfer and partition of real estate are subject to a levy of stamp tax. If none of the above types of documents will be issued, then stamp tax is not required.

According to Taiwan Civil Code and judicial judgements, the following applies.

  • If the agreed rate of loan interest exceeds 16% per annum, the exceeding part and the relevant compound interest would be invalid.
  • Other than the loan interest permitted under Taiwan law, the creditor should not request any interest from the debtor by making discounts or in any other way.
  • There are court precedents indicating that the interest of a loan would not be considered compound interest unless otherwise agreed by the parties in writing. In such cases, the creditor may add interest to the principal after such interest has been in arrears for more than one year and has not been paid despite the demand of the creditor, or if there is a market practice.
  • If a part of loan interest is withheld from the loan amount, the principal amount on which interest will be calculated should be based on actual payments rather than the nominal "payments" to the borrower as prescribed in the loan agreement – ie, the principal amount of the loan should be the amount actually delivered to the borrower after the deduction of withheld interest.

With regard to PPP projects, the PPP Act shall prevail. Unless otherwise specified in the PPP Act, the rights and obligations between the authority in charge and the project company shall be governed by the concession agreement; for matters not specified in the concession agreement, the relevant provisions under the Civil Code of Taiwan shall apply.

In Taiwan, parties to a contract are generally free to choose the governing law of the contract. It is common in practice for the parties to choose Taiwan, Singapore or English law as the governing law for projects in Taiwan.

However, it is worth noting that the government counterpart to an investment agreement under the PPP Act does not usually accept a foreign law as the governing law. However, there have been engineering, procurement and construction contracts involving international contractors that have been governed by Singapore law or English law.

In recent wind farm project financing, the common terms agreement, the respective facility agreements and the arrangement between the various creditors are commonly governed by English law.

However, as to onshore collateral, the relevant security documents are governed by Taiwan law.

Shareholder agreements in respect of the project company (or the joint venture company), power purchase agreements with Taipower, security agreements, insurance policies procured locally and land-related agreements (including lease agreements and relevant land use permits issued by state-owned enterprises) are typically governed by domestic law.

LCS & Partners

5F., No. 8
Sec. 5, Sinyi Rd
Taipei City
Taiwan

+886.2.2729.8000

+886.2.2722.6677

arthurchang@lcs.com.tw www.lcs.com.tw
Author Business Card

Trends and Developments


Authors



LCS & Partners is an elite corporate law firm in Taiwan and regularly advises top-tier domestic and international clients on complex and innovative transactions. LCS has more than 80 attorneys licensed to practise in Taiwan, China, Canada and the United States, with numerous members having received LLM, JD. and/or SJD. degrees from law schools in the United States. Since being founded in 1998, LCS has advised domestic and international clients on the largest and most significant deals in Taiwan, and has been a market leader in areas such as banking, M&A, capital markets, cross-border transactions, energy, real estate, fund formation, antitrust and intellectual property. The attorneys pride themselves on being able to handle the largest and most complex transactions.

Project Finance in Taiwan: Recent Developments and Major Cases

Major project finance transactions within the past year include the following:

  • two solar power plants under Santi Group obtained TWD8.2 billion in syndicated loans (March 2022);
  • solar power plant under Sunnyrich Group obtained TWD8.88 billion in syndicated loans (August 2022);
  • AU Optronics obtained more than TWD10 billion for its solar business (August 2022);
  • Starlux Airlines obtained TWD3.82 billion for the purchase of new aircraft (September 2022); and
  • solar power plants under Chailease Holding Company Limited obtained TWD12.4 billion in syndicated loans (September 2022).

Renewable energy project development

Renewable energy projects and their financing have been active in Taiwan recently. In response to the international trend toward green finance, Taiwan's government began implementing the energy transition principle, to "promote green energy, increase natural gas, reduce coal-fired, achieve nuclear-free" to ensure a stable power supply and to reduce air pollution and carbon emissions. The objective is to transform Taiwan into a green, low-carbon economy boasting green investment along with green consumption and lifestyles. Taiwan is aiming to be nuclear-free by 2025, with 20% of its energy mix coming from renewable energy.

The landmark case among the ongoing solar and onshore and offshore wind farm projects was the Formosa 1 Offshore Wind Power Project (F1), which was the first offshore wind farm project in Taiwan and closed in 2018. Subsequent milestone projects include the Yunlin Offshore Wind Farm Project (Yunlin), which closed in 2019, and the Greater Changhua SE offshore wind farm, which reached financial close in November 2021. Ongoing offshore wind farm project financing includes the syndicated loan extended for the Hailong Projects. Various solar project financings are also growing in the market, since solar power has been the major type of renewable energy utilised in Taiwan.

To take the policy of offshore wind for example, the Bureau of Energy (BOE) announced that a capacity of 1.5 GW will be awarded each year between 2026 and 2035, representing an increase in the total awarded capacity from 10 GW to 15 GW. The auctions for Zonal Development will be divided into two stages. The first stage (between 2026 and 2031) will be further separated into three phases (two years per phase), awarding a total of 9 GW. In the second stage (between 2032 and 2035), the BOE will award a total of 6 GW on a rolling basis by reviewing the developers’ execution and performance from the first stage.

Unlike the two previous phases (ie, the “Demonstration Phase” and the “Transition Phase” – collectively the “Previous Phases”), it is now under the developers’ own discretion to choose their own sites and apply to the Ministry of Economic Affairs (MOEA) for site planning approval. For developers to be awarded capacity to develop, a two-tier auction process composed of “Qualification Review” followed by “Price Competition” should be undertaken.

In addition, a total capacity of 15 GW will be released between 2026 to 2035 during the Zonal Development phase. It is important to note that the application for the auction of 3 GW capacity for the first stage release (ie, to be connected between 2026 and 2027) has commenced in Q3 of 2022,and the result will come in Q4.

Green Finance Action Plan

The Financial Supervisory Commission (FSC) released the "Green Finance Action Plan 3.0" in September 2022, which covers five key areas of promotion:

  • promoting financial institutions' carbon review and climate risk management;
  • developing guidelines for the recognition of sustainable economic activities;
  • promoting the integration of ESG and climate-related information;
  • strengthening professional training on sustainable finance; and
  • collaborating to build a net zero consensus, to deepen Taiwan's sustainable development and move towards net zero.

The FSC has been promoting "green finance" since 2017, from Plan 1.0 in 2017 to Plan 2.0 in 2020, and Plan 3.0 in September 2022. Plan 1.0 encourages financial institutions to invest in the green energy industry, and Plan 2.0 expands the scope to include green and sustainability concepts. According to the FSC, Plan 2.0 has gained market attention since its launch.

According to the FSC, the vision of the Green Finance Action Plan 3.0 is to "integrate financial resources to support the transformation of net zero", with three core strategies, five promotion directions and a total of 26 specific measures to promote (four of which are ongoing measures of Plan 2.0). The main contents in connection with project finance are as follows.

  • Deployment: to promote financial institutions to understand their carbon emission situation and that of their investment and financing portfolios, to plan medium- and long-term carbon reduction targets and strategies, to assess and identify the possible impacts of climate change on individual financial institutions and the overall market, and to formulate strategies to address climate-related risks as early as possible.
  • Funding: to continuously develop the "Guidelines for the Recognition of Sustainable Economic Activities", to encourage corporations to draw up transformation plans based on the Guidelines, to encourage the financial sector to incorporate the Guidelines into their investment and financing decisions, and to continuously invest funds in green and sustainable development areas to promote the development of green and sustainable economic activities and markets in Taiwan. There are seven specific measures.

According to the reports recently issued by the FSC, the material results for the performance of project financing are as follows.

  • Encourage financial institutions to invest in and finance green industries:
    1. promote the “Incentive Programme for Domestic Banks to Handle Loans for the Six Core Strategic Industries” (including renewable energy industries) – the balance of loans from domestic banks to such sector is NTD2.14 trillion (as of the end of June 2022);
    2. encourage offshore wind project financing – the amount of executed commitment to offshore wind power local financing is around NTD348.1 billion (as of the end of June 2022); and
    3. encourage investment in renewable energy by insurance companies – the total amount of approved insurance funds for investment in renewable energy plants is about NTD14.8 billion (as of the end of June 2022).
  • Development of sustainable financial instruments – sustainability-related bonds:
    1. the TPEx established a green bond market in 2017 and a Sustainable Bond in May 2021;
    2. green bonds, social responsibility bonds and sustainability bonds have been issued in 85, 9 and 18, respectively, and the total issuance amounts of each category are approximately NTD234.8 billion, NTD18.1 billion and NTD18.1 billion.
  • Green insurance products:
    1. provide incentive measures of guaranty fund allocation differentiation to encourage the property insurance industry to carry out "offshore wind turbine installation and operation-related insurance" and "agricultural insurance";
    2. 13 property insurance companies participated in offshore wind power-related insurance, with an accumulated insurance premium income of about NTD6.8 billion; and
    3. about 22 types of commercial agricultural insurance policies have been developed by property insurance companies, with an accumulated insurance premium income of about NTD800 million.

The data on sustainable bonds and ESG-related thematic funds is correct as of June 2022. The data on green insurance products is correct as of March 2022.

Green and sustainability-linked loan principles

Financial institutions are paying more and more attention to green and sustainability-linked loan principles (eg, Equator Principles) and are increasingly requesting relevant clauses to be incorporated into facility agreements.

The Taiwan Bank Association has referred to the International Equator Principles Association's announcement of the fourth edition of the Equator Principles (Equator Principles 4.0), which includes the importance of climate change, the disclosure of greenhouse gas emissions and the enhancement of environmental and social risk management, etc, and incorporated them into Article 20(5) of the Members' Credit Guidelines; such guidelines were reported to and approved by the FSC in April 2022, to guide credit-granting enterprises to pay attention to ESG principles through the financial mechanism and to encourage industries to pursue sustainable development and achieve carbon reduction goals. The key points of the regulation are as follows.

  • The banks should establish an internal project review team for large-scale project financing cases to conduct project evaluation reviews and post-closing monitoring of environmental and social impacts.
  • The banks should confirm that creditors have assessed and analysed their potential exposure to climate-related physical risks for large-scale project financing cases with high environmental and social risks concerning the "Task Force on Climate-related Financial Disclosures (TCFD)" framework. In addition, they should evaluate and analyse the climate-related transformation risks for large-scale project financing cases with high carbon emissions.
  • The banks should confirm that the creditor has referred to the "United Nations Guiding Principles on Business and Human Rights (UNGP)" framework to assess the potential impact of a large project financing case on relevant stakeholders (including local communities, residents, employees, etc).
  • The banks should confirm whether the creditors of large-scale project financing cases have conducted a greenhouse gas inventory of the project in accordance with the regulations of the competent authorities.
  • The credit agreement for large-scale project financing shall include the terms and conditions of the borrowers' commitment to environmental and social issues and the measures to deal with the borrowers' failure to meet the terms and conditions of the commitment.
  • If a large-scale project financing case is handled in the form of a syndicated loan, the agent bank should assist the participating bank in obtaining information on the environmental and social impact assessment and post-loan monitoring reports of the project financing.
  • When handling large project financing cases, banks may, depending on the needs of the case, ask the creditors to appoint third-party professional organisations or independent professional consultants to assist in the relevant evaluation operations.

As of 16 September 2022, 17 domestic banks and one financial holding company have signed the Equator Principles. For other banks that have not joined the Equator Principles, the nature of the Equator Principles should be considered in the credit review process following the aforementioned credit criteria. The FSC will continue to promote and encourage financial institutions to participate in, sign or follow international initiatives and principles related to sustainable finance.

The growth of the corporate power purchase agreement (CPPA)

Following the amendment of the Electricity Business Act in 2017, it is now allowable to sell renewable energy directly to a corporate offtaker. Policies such as the finalised Plan for Zonal Development Auction now set the bidding price cap at TWD2.49/kWh and the lower price cap at TWD0/kWh, which has encouraged developers to secure project finance and future price negotiations with potential CPPA offtakers.

In addition to large-scale CPPAs such as TSMC’s offtake of the full production from Ørsted’s 920 MW Greater Changhua 2b & 4 offshore wind farm, there is also a need for smaller enterprises to purchase renewable energy. Thus, the government's new policy in the future is to allocate a certain proportion of green power in the "retail market" to public land lease for photoelectric project sites and Round 3 offshore wind farm development at a fixed rate so that small and medium-sized enterprises can purchase it. In other words, green power could no longer be sold in batches to a single manufacturer.

Due to the difference between the national offtaker (Taipower) and a corporate offtaker, there are some issues to be considered when entering into a CPPA. For example, if any corporate offtaker is insolvent, there is usually a material breach of the CPPA by the relevant corporate offtaker, and subsequently a potential event of default will occur under the finance documents, subject to certain remedies and cure periods.

In the termination of a CPPA, the relevant project company will be required to enter into a Taipower Backup PPA and/or replacement CPPA on certain terms and with a counterparty that is reasonably acceptable to the finance parties within a period of such termination. Failure to remedy within the applicable cure period will result in an event of default under the finance documents. However, if the developers are going to sell electricity to smaller enterprises with lower credit ratings, as planned by the government, the finance parties may consider there to be no incentive to provide project financing, compared to the projects that sell electricity to Taipower. This is an issue worth noting in the near future.

The newly introduced national guarantee system

As foreign developers as well as foreign suppliers/contractors are involved in the construction of offshore wind projects, guarantees from export credit agencies (ECAs) from each respective country (eg, the Danish Export Credit Agency, UK Export Finance, Atradius, K-sure and Nippon Export and Investment Insurance) are an important factor for the successful development of the offshore wind power industry in European countries, and are now gaining support in Taiwan.

Most ECAs are supported by the state. With reference to the international financing guarantee model, the Taiwanese government has also been progressing with establishing a national financing guarantee mechanism since September 2020, under which the government will fund TWD6 billion, with banks providing a further TWD4 billion, to contribute to a green energy industry in the following aspects:

  • green energy construction – a domestic enterprise engaged in domestic green energy construction and development or a domestic EPC contractor that directly signs contracts with a green energy developer;
  • green energy equipment and services – a domestic enterprise supplying green energy construction and development for domestic use or export; and
  • major public construction – a domestic enterprise participating in the government's major public construction and prospective infrastructure design.

According to the government, the objectives are as follows:

  • to improve the willingness of financial institutions to support major domestic economic construction financing plans, so as to facilitate the achievement of Taiwan's energy transition policy goals and the implementation of various major public constructions as scheduled;
  • to cultivate professional financial talents for the financing and guarantee of large-scale construction projects in Taiwan, and enhance the service capacity and competitiveness of the financial industry; and
  • to establish a national export financing guarantee agency in the medium and long term, and expand the international market in conjunction with the industry, so as to build Taiwan into a strong exporter of green energy and engineering industries.

This plan will be jointly funded by the National Development Fund and the financial institution, and a special bank account of the National Financing Guarantee Mechanism will be opened to handle financing guarantee business in a special-purpose, accounting-independent manner.

LCS & Partners

5F., No. 8
Sec. 5, Sinyi Rd
Taipei City
Taiwan

+886.2.2729.8000

+886.2.2722.6677

arthurchang@lcs.com.tw www.lcs.com.tw
Author Business Card

Law and Practice

Authors



LCS & Partners is an elite corporate law firm in Taiwan and regularly advises top-tier domestic and international clients on complex and innovative transactions. LCS has more than 80 attorneys licensed to practise in Taiwan, China, Canada and the United States, with numerous members having received LL.M., J.D. and/or S.J.D. degrees from law schools in the United States. Since being founded in 1998, LCS has advised domestic and international clients on the largest and most significant deals in Taiwan, and has been a market leader in areas such as banking, M&A, capital markets, cross-border transactions, energy, real estate, fund formation, antitrust and intellectual property. The attorneys pride themselves on being able to handle the largest and most complex transactions.

Trends and Development

Authors



LCS & Partners is an elite corporate law firm in Taiwan and regularly advises top-tier domestic and international clients on complex and innovative transactions. LCS has more than 80 attorneys licensed to practise in Taiwan, China, Canada and the United States, with numerous members having received LLM, JD. and/or SJD. degrees from law schools in the United States. Since being founded in 1998, LCS has advised domestic and international clients on the largest and most significant deals in Taiwan, and has been a market leader in areas such as banking, M&A, capital markets, cross-border transactions, energy, real estate, fund formation, antitrust and intellectual property. The attorneys pride themselves on being able to handle the largest and most complex transactions.

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