In the conflict between the co-owners of the BKF bank, the former spouses of Olga Mirimskaya and Alexei Golubovich, a new turn arose. The court restored the bank's obligations on the subordinated loan taken more than ten years ago from the Cypriot Netcore Solutions for $ 11.15 million. A year ago, the BCF refused to pay the loan and the structures of Ms. Mirimskaya challenged the very fact of the funds being issued in court. In the summer they were supported by the court of first instance. But now the situation has changed. The bank is still not going to pay off the loan, appealing to some "investigative actions" against Mr. Golubovich regarding the withdrawal of funds from the BCF. However, the businessman himself assured Kommersant that he knew nothing about this.
On December 2, the Ninth Arbitration Court of Appeal overturned the lower court's decision to invalidate the subordinated loan agreement between Cypriot Netcore Solutions and BCF. More than ten years ago, a Cypriot company provided financing to BCF in the form of a subordinated loan in the amount of $ 11.15 million.On 24 October 2019, it matured. But a month before that, the BKF shareholder companies filed a lawsuit with the Moscow Arbitration Court to invalidate the subordinated loan agreement. We are talking about structures close to one of the bank's beneficiaries, Olga Mirimskaya.
In the summer of 2020, the court declared the deal invalid, having seen it as an interested party deal, but recently this decision did not stand up to appeal. The Ninth Arbitration Court of Appeal overturned the decision of the lower court - the decision entered into force, but has not yet been published. The BKF confirmed this.
22.2% of shares of BKF are owned by Lantres, Stardom Management, Maxima Capital Management and Simplex by Olga Mirimskaya, another 9.6% - by Alexey Golubovich. Golubovich and Mirimskaya are divorced. The bank ranks 182nd in terms of assets in the Interfax rating at the end of the third quarter (9.9 billion rubles), and its capital is 1.38 billion rubles.
Netcore Solutions itself tried to collect the debt through the courts. However, the case on the claim for the recovery from the BKF bank of the debt under the loan agreement for 704.6 million rubles. was suspended due to a counterclaim. Now there are grounds for resuming the proceedings on this claim, says Anton Pulyaev, partner of the De Jure Bar Association.
The BCF is theoretically ready to pay funds: “The amount required to fulfill obligations is reserved in the bank's accounts. Lawyers study the documents on this decision, after which a decision will be made on further actions. " However, the bank stressed, the court's decision in itself does not mean the onset of an obligation to immediately transfer funds to repay the loan. “As the bank's management knows, investigative actions are being carried out upon the withdrawal of funds by Aleksey Golubovich to a foreign company controlled by him,” they added. Mr. Golubovich, however, told Kommersant that he did not know anything about the investigative actions.
$ 11.15 million
is the amount of the disputed subordinated loan of BKF-Bank from the Cypriot company Netcore Solutions
Dmitry Yakushev, lawyer of Andrey Gorodissky & Partners, notes that “loan repayment may carry certain risks for the bank if the Central Bank intervenes in this situation and subsequently revokes the license, since in this case the loan repayment can be challenged under the provisions of the bankruptcy law, after what the creditors will demand to return this loan to the bankruptcy estate, which in the long term creates the risks of subsidiary liability for the bank's managers and affiliated persons ”.
In practice, there have been no cases of shareholders or participants challenging subordinated loans as related-party transactions, says Elena Kravtsova, Director of the Corporate Law Department of RKT. Subordinated loans always entail additional risk for the lender in the form of the possibility of their default, she adds. An attempt at criminal prosecution, if it really exists, notes Ms. Kravtsova, in this case looks like a way to "put pressure on one of the parties to the corporate conflict."