RESOLUTION OF THE CABINET OF MINISTERS OF UKRAINE

of July 1, 2020 No. 541

About approval of the Replacement procedure of the private partner (concessionary) in the agreement signed within public-private partnership, to concession treaties)

According to part six of article 17 of the Law of Ukraine "About public-private partnership" and parts one of article 29 of the Law of Ukraine "About concession" the Cabinet of Ministers of Ukraine decides:

1. Approve the Replacement procedure of the private partner (concessionary) in the agreement signed within public-private partnership, to concession treaties) which is applied.

2. Recognize invalid:

the resolution of the Cabinet of Ministers of Ukraine of April 26, 2017 No. 298 "About approval of the Replacement procedure of the private contractual partner, concluded within public-private partnership" (The Official Bulletin of Ukraine, 2017, No. 38, the Art. 1206);

Item of 179 changes which are made to resolutions of the Cabinet of Ministers of Ukraine, approved by the resolution of the Cabinet of Ministers of Ukraine of November 6, 2019 No. 916 (The Official Bulletin of Ukraine, 2019, No. 90, the Art. 3000).

Approved by the Resolution of the Cabinet of Ministers of Ukraine of July 1, 2020 , No. 541

Replacement procedure of the private partner (concessionary) in the agreement signed within public-private partnership, to concession treaties)

1. This Procedure determines the mechanism of replacement of the private partner (concessionary) in case of attraction by the private partner (concessionary) of financing of the project performed on the terms of public-private partnership (concession) (further - the project), based on the agreement on financing.

2. In this Procedure terms are used in the value given in the Laws of Ukraine "About public-private partnership" and "About concession".

3. Replacement of the private partner (concessionary) by other private partner (concessionary) can be performed:

at the initiative of the state partner (concessor) - in case of the fundamental breach by the private partner (concessionary) of terms of the contract concluded within public-private partnership (concession treaty) (further - the agreement);

according to the address of the creditor according to the procedure of the address of collection on the property rights of the private partner (concessionary) following from the agreement which were pledged for the purpose of ensuring agreement performance about financing in case of fundamental breach by the private partner (concessionary) of the obligations of financial nature provided by such agreement.

4. The right of replacement of the private partner (concessionary) to other private partner (concessionary) at the initiative of the state partner (concessor) and/or in the address of the creditor shall be provided by the agreement and the direct agreement.

The bases, procedure and terms of replacement of the private partner (concessionary) are determined by the direct agreement.

5. In case of initiative of the state partner (concessor) concerning replacement of the private partner (concessionary) the state partner (concessor), and in case of the address of the creditor on replacement of the private partner (concessionary) the creditor in time provided by the direct agreement sends respectively to the creditor / to the state partner (concessor) the notification on initiation of replacement of the private partner (concessionary) (further - the notification) which copy also goes to the private partner (concessionary).

The notification shall contain:

the bases for replacement of the private partner (concessionary) which are determined by the direct agreement which provide the right of initiation of such replacement;

data of rather authorized representative (representatives) for participation in work of working group on questions of replacement of the private partner (concessionary) (further - working group) in the case provided by the direct agreement;

data on the authorized person which is temporary, before determination of the new private partner (concessionary) fulfills obligations of the private partner (concessionary) in the agreement if it is provided by the direct agreement.

Together with the notification copies of the relevant supporting documents which are determined by the direct agreement are represented. It is forbidden to require any other documents which are not provided by the direct agreement.

6. Within ten working days from the moment of receipt of the notification or during other term provided by the direct agreement the state partner (concessor)/creditor shall consider the notification and agree to replacement of the private partner (concessionary) or motivated refusal.

7. The state partner (concessor)/creditor can refuse provision of consent to replacement of the private partner (concessionary):

in case of specifying in the notification of unreliable information;

in case of discrepancy of the notification to the requirements specified in Item 5 of this Procedure;

in other cases provided by the direct agreement.

8. In case of the consent of the creditor and the state partner (concessor) to replacement of the private partner (concessionary) the state partner (concessor) within five working days from the moment of provision of such consent by other party makes the decision on the beginning of the procedure of replacement of the private partner (concessionary) and reports about such decision to the private partner (concessionary).

If other is not established by the direct agreement, are provided in the decision on the beginning of the procedure of replacement of the private partner (concessionary):

creation of working group and statement of its structure. Working group representatives of the creditor and the state partner (concessor) are included;

data on the authorized person which is temporary, before determination of the new private partner (concessionary) fulfills obligations of the private partner (concessionary) in the agreement if it is provided by the direct agreement;

the other actions directed to replacement of the private partner (concessionary).

9. If other is not established by the direct agreement, within 180 calendar days from decision date about the beginning of the procedure of replacement of the private partner (concessionary) the creditor shall submit to the state partner (concessor) the proposal on replacement of the private partner (concessionary) (further - the offer) which contains:

information of the new private partner (concessionary) who is rather offered by the creditor according to provisions of the direct agreement;

the offer on conditions of the additional contract between the state partner (concessor) and the new private partner (concessionary) which provides assignment of rights and obligations under the agreement to the new private partner (concessionary) (further - the additional agreement).

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