The recent US$200 million international placement of 10-year subordinated notes by Komercni Banka, the Czech Republic's largest commercial bank, was in many respects a watershed. The transaction constituted the first international offering by a bank in central and eastern Europe of subordinated debt that qualifies for inclusion in the bank's regulatory capital base. At a time when Komercni Banka, like most other Czech banks, was required to increase its provisions for classified loans, the issue of the notes enabled the bank to shore up its balance sheet and maintain an acceptable risk capital ratio without issuing new equity. From a legal perspective, the transaction presented a number of novel issues requiring innovative solutions. One of the most vexing challenges was structuring a subordination clause that satisfied both the international marketplace and Czech regulators, because neither existing banking regulations nor the Czech Bankruptcy Act recognized a concept of subordination consistent with international practice and standards. This article examines how the lawyers on the transaction managed to fit a square peg into a round hole to accomplish this feat.
September 30 1998