SLOVENIA Law and Practice Contributed by: Vid Kobe and Peter Gorše, Schoenherr Slovenia
tioners and scholars) that parallel debt and joint and several creditorship are valid under Slovenian law. In local constellations, it is common for Slovenian lenders (when forming consortia) to employ a “secu- rity agency” structure in the form of an arrangement whereby one of the lenders (agent) is empowered to enforce security interests held by all (other) lenders/ members of the consortium, albeit with other lenders typically holding separate (direct) but equally ranking security interests over the transaction security. 3.6 Loan Transfer Mechanisms As regards the transferability of the various classes of rights stemming from a typical loan agreement, the following considerations apply. • The transfer of a loan agreement as a whole (ie, the transfer of all rights and obligations) will require the consent of the borrower – which may generally also be given upfront/by way of a provision in the underlying facility agreement. • Receivables (ie, monetary claims) may gener- ally be transferred from the original lender to the acquirer without consent of the borrower, who must be notified of the transfer (otherwise, it may validly fulfil its obligation by paying to the original lender). While good arguments can be made that the same applies to other classes of creditor rights (eg, information rights, acceleration rights), this is subject to different views amongst practitioners (at least in respect of non-accelerated/non-terminated exposures). As regards the transferability of the various classes of security (securing receivables arising from a loan agreement), the following applies: • an ordinary real estate mortgage will generally transfer together with the secured receivable, and re-registration of the mortgagee is required to achieve publicity/perfection of the transfer; • the transferability of the so-called maximum real estate mortgage ( maksimalna hipoteka ) is subject to some controversy amongst legal scholars and practitioners – in terms of market practice, the cur- rent “safe-side” approach is to obtain the debtor/ mortgagor’s consent;
• a pledge over movables, shares, IP rights and receivables will generally transfer together with the secured receivable, and re-registration of the pledgee in the relevant register (if applicable) is required to achieve publicity/perfection of the transfer; and • bank guarantees (to the extent agreed as a form of transaction security) will generally not transfer without the guarantor’s consent. See 5.1 Assets and Forms of Security as regards the requirements for the establishment of the various security interest classes. Several market-standard routes have been developed in practice for addressing (potential) transferability issues, including synthetic transfers and methods employing corporate reorganisation forms. 3.7 Debt Buyback There are no specific statutory restrictions as regards debt buybacks by borrowers or sponsors. However, creditors in multi-lender facility agreements (underly- ing syndicated lending structures) will typically seek to restrict such buybacks in terms of, inter alia: • the permissible source of funding; • permissible methods/processes of acquisition (eg, solicitation/open order); and • disenfranchisement of borrowers/sponsor affiliates in case of such buybacks. In addition, debt buybacks by sponsors may result in a risk of equitable subordination and thin capitalisa- tion (see 7.5 Risk Areas for Lenders and 4.3 Foreign Lenders or Non-Money Centre Bank Lenders ). 3.8 Public Acquisition Finance Under Slovenian law, certainty of funds is hard-wired into the takeover regime: a prospective acquirer must, as a condition for permission to publish a valid (man- datory or voluntary) takeover offer, either (i) deposit with the Slovenian Central Securities Clearing Cor- poration an amount of money equal to the offer price (price per share multiplied by the number of shares not owned by the offeror) or (ii) provide the Central Secu- rities Clearing Corporation with an irrevocable first- demand bank guarantee for an equivalent amount.
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