프로젝트금융의 법적 쟁점

Abstract

The limited recourse structure of the project finance plays an important role in funding and promoting a risky project by shifting to the lenders certain risks which would otherwise be assumed by the sponsor. In this article, the author briefly reviews the meaning, characteristics and structure of the project finance as well as the sharing of the risks in the project finance. Then, after reviewing the control of the risks in the project finance by the provisions of a loan agreement, this article analyzes major legal issues involving the creation of various security interests in favor of the lenders and the related credit support measures, including the additional financial support of the sponsor and the lenders’ step-in rights under the so-called“direct agreement.” The special features of the legal issues in the project finance may be reviewed in the following three respects: Firstly, it is crucial to prepare the documentation which accurately reflects what the relevant parties have agreed concerning the sharing of risks. Various risks exist in the project finance before and after the completion of the project. The sharing of such risks between the project company and the other project participants is made by the project related contracts. In this regard, although the lenders are not party to the project related contracts, they can control the contents of the project related contracts indirectly by the provisions of the loan agreement. The remaining risks which have not been addressed by the project related contracts and the insurance policies may be shared between the sponsor and the lenders by negotiation. Through this negotiation, it will be determined whether and to what extent the additional financial support is to be provided to the project by the sponsor. Secondly, in the project finance, it is very important to obtain security interests in the rights to the future cash flow generated from the project (e.g., future receivable under an off-take contract) since such cash flow will be the major resources for repayment of the loan. Since the Supreme Court precedents have imposed rather strict requirements for transferability of future claims, however, there are legal uncertainty and inconvenience in creating security interest in future claims for the long term project finance. The Supreme Court precedents need to be changed as soon as possible. Finally, it is necessary to obtain security interests in the important assets of the project which will generate future revenues. Currently, in the project finance for power plant construction, factory foundation mortgages (Kong-Jang-Jae-Dan-Jeo-Dang) are commonly used. It is necessary to improve factory foundation mortgage system so that such mortgage may be created faster and more easily. Usually the market value of the project assets would be rather low and therefore, in the event that the project faces financial difficulties, the lenders had better restructure the project rather than relying on foreclosure on the security interests in the project assets. It is a special feature of the project finance that the lenders procure contractual measures for such restructuring, such as curing of a default committed by the SPC, change of the sponsor and transfer of the project to a third party, in order to continue the project.