5 April 2023 07:45

Opinions

Financing of business in Poland in a nutshell

Karolina Turko

Advocate and senior associate in Osborne Clarke's Banking and Finance practice

Poland presents a particularly compelling destination for relocating of Ukrainian companies, not only because of its neighboring geographical location, but also due to Poland's strong economy, stable banking system and supportive government policies. While there is a range of benefits for Ukrainian businesses looking to move their operations, one of the most significant challenges might seem securing the necessary financing to support business growth and stability. It is worth exploring how Ukrainian companies can take advantage of the financing options being offered in Poland to facilitate their relocation across the border in the smoothest way possible.

Types of business financing in Poland

Every entrepreneur operating on the Polish market can take advantage of a number of sources of financing their business. Below are some examples of such sources:

Bank Financing

One of the most common types of financing businesses relocating to Poland is bank financing. Usually to obtain a loan, the business must have a solid business plan and a good credit score. Bank loans may be secured and require collateral. It is important to note that banks in Poland may have different requirements and regulations than those in Ukraine, so it is essential to research and understand these differences before applying for financing – the easiest way would be to meet with local bank representative and discuss options and procedures.

Leasing

Leasing is another financing option that can be used to acquire equipment or other assets when relocating a business to Poland. This involves renting the equipment or asset for a set period of time, with the option to purchase the asset at the end of the lease term, and may require a security deposit. Leasing can be a suitable option for businesses that need to acquire equipment or other assets but do not have the capital to purchase them outright. There are many firms that provide leasing which allows a business to choose the best option.

Factoring

Factoring is a financing option that allows businesses to sell their receivables to a third-party, known as a factor. Simply put, factoring consists in the quick conversion of invoices issued by the company into cash. This can be a useful option for businesses relocating to Poland that need quick cash flow. The factor provides the business with immediate cash, while assuming the responsibility of collecting payments from customers who owe the receivables. There are several firms on the market that provide factoring services.

Private Financing (Investors)

Private financing is another option for businesses relocating to Poland. Private investors, such as business angels or venture capitalists, may provide funding in exchange for equity in the business. Private investors may also provide guidance and expertise to help the business grow in its new location.

EU Funding

The European Union provides a variety of funding options for businesses based in the EU, including grants, loans, and equity financing. Some specific financing programs include tasks in the field of support for foreigners looking for a job, as well as those planning to open a business in Poland. There are specialized consulting companies operating on the Polish market, which advise not only on the selection of the type of funding, but also fill in and submit applications in the name of the applicant. It is worth noting that receiving EU funding also imposes the need to maintain activity (in EU, in this case in Poland) in the so-called durability period, which is 3 years for small and medium-sized enterprises and 5 years for large enterprises.

Other Financing Options

In addition to the financing options listed above, there are also other financing options available to businesses relocating to Poland. These may include crowdfunding, which involves obtaining funding from a large number of people through an online platform, or invoice financing, which allows businesses to borrow money against their outstanding invoices.

Collaterals

When discussing providing companies with loans by banks, the description of collaterals that lenders usually require to be established in their favor cannot be overlooked. Creating a security on a company's assets is beneficial for both the borrower and the lender. For the borrower, it provides access to financing that might not otherwise be available. For the lender, it reduces the risk of default and provides a way to recover the loan amount if the borrower fails to repay.

Essentially, the type of collateral required depends on the nature of the loan and the borrower's creditworthiness. That being said, a company with a strong credit rating may be allowed to provide fewer security assets than a company of a weaker position.

The main forms of security in Polish jurisdiction are:

mortgage over real property;
civil law pledge over movables or rights;
financial pledge over the rights to cash resources, credit receivables and financial instruments;
registered pledge over movables, rights or collections of movables or rights;
surety;
guarantee;
bank guarantee;
assignment of rights;
security transfer of ownership;
security deposit;
statement on submission to enforcement (in form of notarial deed);
promissory note/bill of exchange.

The details of most common collaterals are highlighted below.

Registered pledge over movables, rights or collections of movables or rights

This type of security is created by way of a written agreement between the pledgor (borrower) and the pledgee (bank) and entry into the pledges register maintained by the registry court. It is also possible to create registered pledge over future assets as these will be encumbered by the registered pledge upon their acquisition by the pledgee. If a registered pledge is created over a collection of varying set of assets, the pledgor is usually required to update the list of pledges assets from time to time and file the updated list with the registry court. The drawbacks of this security is long registration process, court fees and still-inconsistent practice of the registry courts with respect to non-typical objects of pledge.

When it comes to asset pledge, the bank has a priority claim over the company's assets in case of default, so it can liquidate the pledged assets to recover the loan amount.

Establishing a registered pledge on shares involves several additional steps that need to be taken to ensure the enforceability of the pledge. Apart from the standard requirements, the extra obligations include reviewing and amending the articles of association of a limited liability company, which may impose limitation on creation of such security (i.e. obtaining consent of the shareholders may be necessary). The effectiveness of establishment of share pledge, as against the company in which the shares are being held, depends on the prior notification of the company. The company's share register also needs to be updated to reflect the pledge.

Assignment of rights from existing agreements

This collateral is established by way of a written agreement between the assignor (borrower) and the assignee (bank). The lender is entitled to demand the payment of assigned receivables upon fulfilment of the conditions set forth in the assignment agreement (e.g. occurrence of event of default). The cons are that the debtors under the assigned receivables should be notified of the assignment – if many contracts are assigned, such notification procedure may be burdensome and time-consuming. If the debtor has not been notified of such assignment, any payment made to the assignor will cause discharge of debt.

In case of assignment of future contract to the bank (e.g. receivables under the future lease agreements in a real estate finance transaction), it is advisable to contractually oblige the assignor to confirm the assignment of such claims as they arise.

It is crucial that the agreement will be effective in insolvency of the assignor only if it has a certified date.

Mortgage over real property

The only security over real property that is valuable for the bank is mortgage. It is established on the basis of an agreement between the mortgagee (bank) and the mortgagor (borrower) and entry into the land and mortgage register. The benefits of such collateral is that it gives the mortgagee the right to satisfy its cash receivables from sale of the real property in priority to other creditors of the debtor. Also, mortgage may secure existing, conditional and future receivables and it can also secure more than one receivable. The drawbacks are time-consuming registration proceedings and cost of establishment.

Overall, creating a security in favor of the lender can be a complex process that requires careful planning, legal expertise and consideration of the pros and cons of providing a specific collateral. By following the necessary steps and ensuring compliance with Polish law and regulations, but also with standard market practice in Poland, parties can help ensure the security is properly established and enforceable in the event of default. It is important to note that establishing a specific collateral can also have some drawbacks. For example, it can limit the company's ability to use the secured assets for other purposes, such as selling or leasing them. It can also reduce the company's flexibility in obtaining additional financing in the future.

How to start applying for funding?

When applying for funding, there are several important activities that are required to ensure a smooth process. These activities include opening a bank account and building creditworthiness and credibility, which are another factors that can greatly impact the success of a funding application.

Some tips on opening a bank account and building financial credibility are described below.

Opening a Bank Account

One of the first activities that must be completed prior applying for funding (and one of the requirements to open a business in Poland in general) is opening a bank account as most funding sources require a business bank account to receive funds. When opening a bank account, it is advised to research different banks and their offerings to find the best fit for one's business.

When selecting a bank, factors such as fees, interest rates, and customer service must be considered. Most Polish banks have prepared solutions for Ukrainian citizens, such as the abolition of certain fees, commissions, simplification of the process of opening accounts for companies, transfers to banks in Ukraine and vice versa completely free of charge and hotline services in Ukrainian. Once a bank has been selected, the necessary documentation must be provided to open the account. This documentation may include corporate documents such as Articles of Association, business registration documents and tax identification numbers.

Standard regulations such as KYC and AML will also require banks to ask for additional documents to confirm, in particular, chain of ownership:

KYC regulations require banks to verify the identity of their customers and collect certain information about them. In the case of a business, this would typically include the company's name, registration number, address, and tax identification number. In addition, banks may request information about the company's owners (ultimate beneficial owner), such as their names, addresses, and identification documents;
To comply with AML regulations, banks are required to monitor their customers' transactions for suspicious activity and report any such activity to the relevant authorities. This may involve collecting additional information about the nature of the company's business, the source of its funds, and the purpose of its transactions.

What is also typically required is the company's registration documents, such as its Articles of Association and registration certificate, as well as identification documents for the company's owners and authorized signatories. Banks may also request additional information, such as financial statements or business plans, depending on the nature of the company's business.

It is also worth stressing that banks may periodically request updated information or documentation to ensure that they continue to comply with KYC and AML regulations.

In Poland, typically the representatives of the company are authorized to sign the bank documents and manage the accounts. Therefore, it is important to ensure that the authorized representatives are accurately reflected in the company's documentation that is being provided to the lending bank. The information on the company in the commercial register may not always be up-to-date, and it is possible for individuals who are no longer authorized to represent the company to still be listed as such in the register.

Building Creditworthiness and Credibility

Another important activity when applying for funding is creditworthiness and credibility. Lenders and investors look at a business's credit score, financial history and reputation before approving funding.

Establishing a positive payment history is probably most crucial when it comes to building creditworthiness. This involves making on-time payments on loans, credit cards, and other financial obligations. Late payments can negatively impact one's credit score and make it harder to access loan in the future.

Other tips on how to build creditworthiness is to keep debt levels low, pay down existing debts and maintain a low credit utilization ratio. Making credit enquiries to multiple banks may also lower the credit score.

Funding-seekers should not underappreciate the paperwork — keeping accurate financial records can help establish credibility and demonstrate financial responsibility. This includes keeping track of expenses, income and profits, and filing taxes on time.

As a Polish market standard, lending bank's preferred seniority of the company would be a minimum of 6 to 12 months with regular income, but it can vary depending on the particular bank.

Building credibility involves establishing a positive reputation in the business community. This can be done by networking with other businesses and building a strong online presence. A positive reputation can help to build trust with lenders and investors, making it easier to secure funding.

Submitting a Credit Application

Contacting a customer adviser from the bank is the first step in applying for investment loans for companies. Such adviser can also help negotiate the terms of the loan.

Prior submitting a loan application, it is needed to gather documentation that supports a company's financial position and ability to repay the loan. This may include financial statements, tax returns, business plans, financial projections and other relevant information.

After the loan application is submitted, obtaining a decision from the lender may take several weeks or longer, depending on the complexity of the loan and the lender's internal processes.

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In conclusion, Polish market offers wide range of financial support for Ukrainian businesses being relocated to Poland. From traditional bank loans to private investors and EU funding, there are a variety of funding options available to ease this transition. However, it is important for Ukrainian-originated businesses to do their research, carefully assess their funding needs, ensure their financial credibility and understand the collateral requirements. By keeping accounting and corporate records up-to-date, maintaining low debt ratio and establishing a solid security in favor of lenders, such companies can position themselves as trustworthy from Polish lenders' perspective and will navigate the challenges and opportunities of relocating to Poland.

Authors:

Karolina Turko – advocate and senior associate in Osborne Clarke's Banking and Finance practice. She advises on banking and finance projects, with particular emphasis on energy and real estate projects. Karolina assists clients in preparation of structure of transaction, prepares and negotiates transactional documents.

Rafał Strzępek – a trainee attorney-at-law and junior associate in Osborne Clarke's Banking and Finance practice. He advises on banking and finance projects, with particular emphasis on energy and real estate projects. Rafał prepares transactional documents, and advises lenders and borrowers on establishing security interest.