Pledge agreement, 2021, 2022 - Pledge and mortgage agreement

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PLEDGE AGREEMENT ____________ "____"____________ 20____ __________________________________________________________________________ (full name of the borrower organization) acting on the basis of the Charter, represented by _____________________________________ (full name, position) hereinafter referred to as “Pledgor” ________________________________________________ (full name of the creditor bank) acting on the basis of the Charter, represented by _____________________________________ (F .I.O., position) hereinafter referred to as the “Pledgee”, have entered into this agreement as follows: 1. Under the loan agreement No. _____________ dated “___”____________ 20____. The creditor bank provided ___________________________________________________ ___________________________________________________________________ (full name of the borrower organization) a loan in the amount of _____________ thousand rubles with a repayment period of up to ________________. 2. To ensure timely repayment of the loan, as well as interest for using the loan, including compensation for losses caused to the creditor bank by improper execution of the loan agreement, the Pledgor pledged ____________ ______________________________________________________________________________ ______________________________________________________________________________ (description of the pledged property) An inventory of the pledged property is attached. 3. The pledged property remains with the Pledger ________________________ ____________________________________________ or is transferred to the Pledgee. (location of the pledged property) 4. The pledged property is assessed by the parties in the amount of ________ thousand rubles. The mortgagor guarantees that the property pledged by him, according to the inventory, has not been previously pledged anywhere, is free from debts and is not subject to withholding. The pledged property belongs to the Pledgor with the rights of _________________________. 5. The pledgor undertakes: - to ensure proper storage, not to pledge or sell them to other legal entities and individuals before the expiration of the current obligation. Provide the Pledgee with the opportunity to check the safety of the pledged property. — in the event of the sale of the pledged property, replenish it in the amount of the value of the disposed pledge with the corresponding property or repay the loan received in this amount. 6. The pledgee has the right: - to check the intended use of the loan issued by him on security, as well as the condition and conditions of storage of the pledged property; — in case of failure to repay the received loan, interest within the terms established by the loan agreement, satisfaction of the creditor’s claim from the value of the pledged property is carried out, unless otherwise established by legislative acts, by a court decision. 7. The pledge agreement is terminated with the termination of the obligation secured by the pledge. 8. When the mortgagor is reorganized, the obligations under this agreement extend to his legal successor. 9. The agreement is drawn up in two copies, one of which remains with the Pledgee, the other is issued to the Pledgor. 10. Legal addresses of the parties: Pledgor Pledgee ________________________ __________________________ ________________________ __________________________ ________________________ __________________________

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Item

The section on the subject is the basic component of any document. It indicates what exactly the parties agree on. So, the provisions related to the subject of the agreement are written in the text of the document as follows:

In accordance with this agreement, the Counterparties agreed to conclude a purchase and sale agreement for a residential building by January 21, 2023. The residential building is located at the address: Tyumen region, Sovetsky village, Chaika residential complex, building 7. The characteristics of the alienated property are presented in Appendix 1 to this agreement. The price of a residential building is 2,000,000 (Two million) rubles 00 kopecks. After concluding this agreement, the Buyer transfers to the Seller a sum of money in the amount of 500,000 (Five hundred thousand) rubles 00 kopecks as a deposit. The deposit is included in the payment for the cost of the residential building. The owner of the residential building is the Seller. This fact is confirmed by an extract from the State Register. The seller guarantees that the alienated property. The subject of this agreement is not encumbered by the rights of third parties, is not pledged or under arrest.

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Insurance of the collateral by the pledgor

Income tax
Since the costs of voluntary property insurance also include insurance premiums for voluntary insurance of other property used in activities aimed at generating income (clause 7, clause 1, article 263 of the Tax Code of the Russian Federation), then the costs of insuring the collateral property realized by the mortgagor can be taken into account when taxing profits (Letters of the Ministry of Finance of Russia dated 02/15/2008 N 03-03-04/1/103, dated 02/15/2008 N 03-03-06/1/103 and dated 03/02/2006 N 03 -03-04/4/42).

At the same time, the costs specified in Art. 263 of the Tax Code of the Russian Federation, voluntary types of insurance are included in other expenses in the amount of actual costs (Article 263 of the Tax Code of the Russian Federation).

The courts adhere to a similar point of view in the Resolutions of the Federal Antimonopoly Service of the Ural District dated May 6, 2009 N F09-2737/09-S3 and the Northwestern District dated July 25, 2005 N A52-7567/2004/2.

Thus, the pledgor has the right to insure the pledged property and take into account the costs of insuring the pledged property when taxing profits in full.

Accounting

In accounting, the pledgor reflects the costs of insuring the collateral on account 76 “Settlements with other debtors and creditors” as follows:

Debit 76-1 “Settlements with other debtors and creditors” Credit 51

The insurance premium has been paid;

Debit 91-2 Credit 76-1 “Settlements with other debtors and creditors”

The insurance premium is included in other expenses;
Example
According to the terms of the pledge agreement, insurance of the pledged property is carried out by the pledgor.

In this regard, the pledgor organization entered into an insurance agreement and paid a one-time insurance premium in the amount of 100,000 rubles.

In the accounting of the pledgor organization, the costs of insuring the collateral should be reflected as follows:

Contents of operations	Debit	Credit	Amount, rub.	Primary document
Insurance premium paid	76-1	51	100 000	Bank account statement
Insurance costs are recognized as other expenses	91-2	76-1	100 000	Insurance policy, Accounting certificate

Financial sector

In the practice of banks, especially in project financing, situations often arise when it is necessary to accept movable property as collateral that has not yet been assembled and is not accounted for as fixed assets. In addition, one of the types of security may be a pledge of property, the ownership of which at the time of concluding the pledge agreement has not transferred to the pledgor.

One of the essential terms of the pledge agreement is a description of the property being pledged, which must contain all its individual characteristics, allowing: a) to comply with the essential terms of the pledge agreement relating to the description of the subject of the pledge, and to exclude subsequently the emergence of disputes between the pledgor and the pledgor about the property that is the subject of a pledge; b) foreclose on the pledged property (identify and identify the pledged property by a bailiff).

In project financing, the borrower purchases a large number of movable property items using loan proceeds. As a rule, these are technological lines, which are complex equipment made up of various components, the delivery and installation of which is carried out in stages. Thus, after issuing a tranche for the purchase of equipment, banks are interested in minimizing the risks associated with the lack of collateral until the conclusion of a pledge agreement for the installed equipment.

Taking into account the strict requirements of Russian collateral legislation and conservative judicial practice, it is necessary to pay special attention to the development of issues related to methods of transferring equipment as collateral at stages when it is not yet an object of fixed assets or the ownership of which has not yet transferred to the pledgor. This article will discuss approaches to concluding such collateral agreements, which can be combined depending on the characteristics of the project being financed.

Pledge of equipment being installed

Acceptance of such property as collateral assumes that the ownership of it has already transferred to the pledgor, but has not been accepted on the balance sheet as fixed assets. Equipment requiring installation is accounted for on account 07 “Equipment for installation”1. When concluding a pledge agreement, various difficulties arise related to the initial inspection, identification and proper description of the property.

The initial inspection may be difficult or even impossible if the supplied equipment is in packaging (boxes) at the time of concluding the pledge agreement. This circumstance does not allow us to establish the individualizing characteristics of the components included in the equipment, indicated on the nameplate (manufacturer’s number/serial number/article, etc.). Thus, it will not be possible to reliably establish the presence of the property (if it is impossible to open the package), as well as check its functionality.

The above risks must be accepted and tried to minimize them as much as possible. For example, packaging units may have their own identification (numbers). In this case, it is necessary to compare this data with the information contained in the submitted property documents (for example, waybills and/or customs documents) and use it when describing the equipment in the pledge agreement.

In their practice with collateral, banks, taking into account established judicial practice, as the main characteristics, in addition to the direct name and description of each item in the collateral agreement, indicate the following information: inventory number, factory and/or serial number, article number (if available), year of manufacture, name and country of origin. As an additional description, it is possible to indicate the details of title documents (purchase and sale agreements, supply agreements, etc.).

Equipment accounted for on account 07 does not have an inventory number. During the initial inspection, it is necessary to identify all possible identifiers of each item (factory, serial numbers) and indicate them in the initial inspection report. When describing property, sources of information, in addition to title documents, can be technical documentation (technical passports, instructions), an extract from account 07 “Equipment for installation”, documents on payment for property.

It should be noted that if there is a dispute, the court, when making a decision, will analyze the description of the subject of pledge in the pledge agreement, as well as other evidence presented by the pledgee indicating that the description of the subject of pledge corresponds to its existing characteristics.

In particular, in the Ruling of the Supreme Court of the Russian Federation dated November 17, 2016 No. 304-ES15-17531 (3), it was noted that when resolving a dispute about establishing collateral seniority and resolving the issue of the identity of property pledged to different creditors, the court had to examine the documents submitted by the pledgor , namely: reports on the pledgor’s fixed assets, from which it follows that the debtor did not have any other similar equipment that was not pledged to the bank; a report estimating the market value of equipment that uses both serial and inventory numbers to describe the same item.

It should be taken into account that if the mortgagor owns similar/similar property that is not pledged (for example, purchased at his own expense or at the expense of loan funds from another bank), when foreclosure on the property a dispute may arise about the subject pledge, if the pledge agreement does not contain precise identification of each item (for example, by serial numbers).

Registration of a notice of pledge of such movable property in the manner prescribed by Art. 339.1 of the Civil Code of the Russian Federation and Chapter XX.1 of the Fundamentals of the Legislation of the Russian Federation on Notaries. If it is possible to identify the serial numbers of the equipment, they must be indicated in the notice as an identifier of the pledged property. If such information is not available, entering information into the register of notifications about the pledge of movable property without indicating an identifier may lead to possible disputes with other pledgees regarding the priority of the pledge if such property is pledged and identified by indicating other information.

It is also worth paying attention to the fact that, in accordance with Art. 488 of the Civil Code of the Russian Federation, in the case where the purchase and sale agreement provides for payment for the goods a certain time after its transfer to the buyer (sale of goods on credit), the buyer must make payment within the period stipulated by the agreement. Unless otherwise provided by the purchase and sale agreement, from the moment the goods are transferred to the buyer and until payment, goods sold on credit are recognized as being pledged by the seller to ensure the buyer fulfills his obligations to pay for the goods.

Thus, if the payment for the equipment by the pledgor is not made in full, there is a risk that the pledge agreement concluded with the bank will be recognized as a subsequent pledge agreement. At the same time, the absence of a record of a pledge in favor of the seller in the register of notifications of pledge of movable property does not eliminate this risk, since in accordance with Art. 339.1 of the Civil Code of the Russian Federation, in relations with third parties, the pledgee has the right to refer to the right of pledge belonging to him only from the moment of making an entry on the registration of the pledge, except in cases where the third party knew or should have known about the existence of the pledge earlier. Considering that the bank issued a loan for the purchase of the relevant equipment, it obviously should have been informed of all the terms of the purchase and sale agreements, which, in turn, presupposes the bank's knowledge of the incomplete payment of the property and the existence of collateral.

To eliminate the above risk (which is also typical for collateral of completed installation of equipment), it is recommended that the credit agreement provide for mandatory conditions that all equipment supply contracts that provide for installment payment must contain a condition that no collateral arises in favor of the seller.

It is also necessary to note the possible legal destruction of the collateral. On the one hand, in accordance with paragraphs. 1 item 2 art. 345 of the Civil Code of the Russian Federation, regardless of the consent of the pledgor or pledgee, new property that belongs to the pledgor and was created or arose as a result of processing or other changes in the pledged property is considered to be pledged. On the other hand, it does not clearly follow from the judicial practice of applying this rule that the pledge applies to the created property “automatically”.

At the same time, it contains the uncertainty of paragraphs. 3 p. 1 art. 352 of the Civil Code of the Russian Federation, according to which the pledge is terminated in the event of the destruction of the pledged item or termination of the pledged right, if the pledgor did not exercise the right provided for in paragraph 2 of Art. 345 of the Civil Code of the Russian Federation. What right should the mortgagor exercise if the above norm directly states that the consent of the parties to the pledge agreement to extend the pledge to the formed property is not required?

Thus, the best way to minimize this risk is to timely conclude amendments to pledge agreements that clarify the composition of the property pledged. At the same time, it is necessary to take into account that property that has become an integral part of a real estate property loses its independence and cannot be a separate subject of pledge (the issue of classifying movable property as elements of a real estate property requires independent analysis and does not relate to the topic of this article).

Pledge for equipment purchased in the future

A pledge agreement for movable property acquired in the future differs from a regular pledge agreement in that at the time of the conclusion of such an agreement, the ownership of the property being pledged does not belong to the pledgor. This type of pledge is provided for in paragraph 2 of Art. 336 of the Civil Code of the Russian Federation. Moreover, in accordance with paragraph 2 of Art. 341 of the Civil Code of the Russian Federation, the right of pledge on such property arises from the moment of its acquisition.

The conclusion of such a pledge agreement may be a condition for the provision of a tranche under a credit line to pay for the relevant equipment. However, when describing the subject of pledge, the bank is limited by the data contained in the relevant contracts/agreements for the purchase and sale of property, which, as a rule, do not contain all the necessary information to identify the subject of pledge (the description of the supplied property may only contain requirements for the configuration and basic characteristics). At the time of placing the equipment as fixed assets on the mortgagor’s balance sheet, the description of each item may differ significantly from the one named in the pledge agreement concluded in relation to the future property.

The terms of the loan agreement and the pledge agreement must provide for the obligation to conclude an addendum to the pledge agreement in order to properly identify the subject of the pledge (indicating all the identification features of the property listed above). The obligation to conclude such an addition can be conditioned by the fact that the property is accepted on the balance sheet of the mortgagor as fixed assets. If a long stage of installation and commissioning of this equipment is expected, the conclusion of a pledge agreement, which is described in paragraph 1 of this article, can be provided as an additional obligation.

Pledge agreement for rights (claims) under an equipment supply agreement

An agreement on the pledge of rights under relevant supply contracts can act as an additional way to secure obligations. It can be called a pledge of movable property very conditionally (and legally incorrect), since the subject of such a pledge agreement is the right to demand the seller to supply the corresponding equipment. This type of security is common in leasing operations, when a loan is provided to a leasing company for the purchase of property intended for lease.

A pledge of rights under an equipment supply agreement arises on the date of conclusion of the pledge agreement. Of course, this type of security is relevant and valid until the seller fulfills its obligations to supply the relevant equipment to the pledgor. In this situation, it is necessary to understand that the subject of the pledge is only the right to demand the provision of property, as well as other payments under the contract that are due to the buyer (for example, penalties, compensation for losses). Thus, the property itself is not encumbered with a pledge, and if grounds for foreclosure arise, the pledgee, having received such a right, only takes the place of the purchaser of the equipment.

If there are problems with fulfilling payment obligations under the loan agreement, there is a high probability that in the relationship with the counterparty under the equipment supply agreement, not everything may go smoothly either. For example, if we assume that the money received by the borrower did not reach the supplier, then in this case the supplier did not have an obligation to supply equipment. Thus, the agreement for pledging the right of claim under an equipment supply agreement will remain valid until the equipment is transferred to the pledgor and can only “work” if the borrower properly fulfills its obligations to the seller.

Pledge of all or part of the pledgor's property

The so-called total pledge was introduced by Federal Law No. 367-FZ of December 21, 2013 “On amendments to part one of the Civil Code of the Russian Federation and the recognition as invalid of certain legislative acts (provisions of legislative acts) of the Russian Federation,” which provides for the possibility of descriptions in the pledge agreement of the subject of pledge by indicating all the property of the pledgor, a certain part of his property, or property of a certain kind or type - in any way that allows identifying the property as the subject of pledge at the time of foreclosure (Clause 2 of Article 339 of the Civil Code of the Russian Federation) .

However, in practice, the above type of pledge is not widespread, although in relation to movable property that does not require special registration of rights (unlike, for example, real estate or securities), it is less problematic to apply such a model for describing the pledge, since it does not require establishing specifications for the creation of a pledge (registration in the register). At the same time, establishing a pledge of all property in practice requires solving a number of issues.

Firstly, it seems very impractical to register a notice of pledge of all (or part) of property in the register of notices of pledge of movable property without indicating the identifying characteristics of such property. On the one hand, a bona fide purchaser, having checked this register in relation to a legal entity, must establish that all property is already encumbered with a pledge. On the other hand, if the acquirer chooses another verification option - based on identification features that are not available in this register (if the parties to the pledge agreement decided not to enter such information for each item and/or such information is generally not available due to the specifics of the equipment that has not been installed yet), Will he be considered dishonest? I believe that there is a high probability of termination of the pledge of movable property due to paragraphs. 2 p. 1 art. 352 of the Civil Code of the Russian Federation in connection with the acquisition of property by a bona fide purchaser.

Secondly, given that when pledging all (or part) of the property, the collateral regime is preserved during the alienation of the property (unlike the pledging of goods in circulation), practical issues arise of monitoring the presence and condition of such property, agreeing on the alienation of any property of the pledgor, making changes to register of notifications of pledge of movable property (if information about each item was entered). In addition, it should be noted that judicial practice has a negative attitude towards deviations from the principle of specialty of collateral. A good illustration is a dispute related to the pledge of rights of claim under a contract, when funds received under the contract were mixed with other funds in the account (in the absence of a special pledge account)2. Despite the fact that in this case the subject of the pledge was the rights of claim under the contracts, there is a high probability that such a conservative position of the court can be applied in the event of a dispute under a “total” pledge agreement.

To summarize, it should be noted that in any case, until the property is pledged with completed installation and all signs of identification, the bank bears risks. Reducing them is the task of the collateral and legal services of banks, and the task of the person responsible for structuring the project is to provide such financing conditions that, on the one hand, would be convenient for the recipient of the funds, and on the other hand, would guarantee the bank the maximum opportunity to satisfy claims using the pledged property . For example, in the collateral structure, in addition to the pledge of purchased equipment, real estate under construction or reconstruction, shares/participatory interests in the authorized capital of the borrower, one can provide for guarantees of the beneficiaries of the recipient of funds and/or legal entities included in the group of companies, pledge of rights under contracts for the receipt of funds with simultaneous opening collateral accounts.

The table below shows the above described methods of transferring movable property as collateral before it is put on balance as a fixed asset. Banks can choose one method or another, and, as noted above, different combinations of them are possible depending on the conditions of the project being implemented.

Subject of collateral	Features and risks	Recommendations
Equipment being installed	• Failure to fully identify and verify equipment • The risk of legal destruction of individual units included in the subject of pledge upon completion of installation work	• Additional identification in the pledge agreement based on information about packing places • Receipt from the pledgor of statements on all accounting accounts (01, 07, 08) • Conclusion of an addendum to the pledge agreement upon completion of installation work in order to indicate all identification features of the property
Property acquired in the future - clause 2, art. 341 Civil Code of the Russian Federation	• The right of pledge arises only from the date of acquisition of ownership of the subject of pledge by the pledgor • Lack of equipment identification features in the pledge agreement	• If there are signed specifications, indicate the information contained in them when describing the subject of pledge • Conclusion of an addendum to the pledge agreement in order to indicate all identification features of the property (upon delivery, upon completion of installation)
Pledge of rights of claim under a supply agreement - Art. 358.1 Civil Code of the Russian Federation	• The subject of the pledge is the right to demand delivery of property, and not the property itself • The pledge terminates upon delivery of the equipment to the pledgor	• Consider this type of pledge only as additional until the conclusion of a pledge agreement for the property delivered to the pledgor • Provide for the extension of the right of pledge to also receive payments due to the pledgor (fines, penalties, compensation for losses, etc.)
Pledge of property of a certain kind or type (part of the property) or all of the property of the pledgor - para. 2 p. 2 art. 339 Civil Code of the Russian Federation	• There is no need to describe each piece of property • Absence of an identifier for each item in the register of notifications of pledge of movable property	• Consider this type of pledge as additional before concluding a pledge agreement for property registered as fixed assets

1. See Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n “On approval of the chart of accounts for accounting of financial and economic activities of organizations and instructions for its application.”

Civil relations

If the debtor fails to fulfill the obligation secured by the pledge, foreclosure may be applied to the pledged property to satisfy the demands of the pledgee (creditor) (clause 1 of Article 348 of the Civil Code of the Russian Federation).
The pledged property, which is foreclosed on the basis of a court decision, is sold through public auction in the manner established by the Civil Code of the Russian Federation and procedural legislation (Clause 1, Article 350 of the Civil Code of the Russian Federation, Chapter 9 of Federal Law dated October 2, 2007 N 229-FZ "On enforcement proceedings").

The procedure for the sale of pledged property when foreclosure is applied to it out of court is established by Art. 350.1 Civil Code of the Russian Federation.

Thus, if the foreclosure of the pledged property is carried out extrajudicially, then its implementation is carried out through a sale at auction held in accordance with the rules provided for by the Civil Code of the Russian Federation or an agreement between the pledgee and the pledgor (clause 1 of Article 350.1 of the Civil Code of the Russian Federation).

Unless otherwise provided by law or contract, the pledge secures the claim in the amount it has at the time of satisfaction, in particular interest, penalties, compensation for losses caused by delay in execution, as well as compensation for the necessary expenses of the pledgee for the maintenance of the subject of the pledge and related to foreclosure on the subject of the pledge and its implementation of expenses (Article 337 of the Civil Code of the Russian Federation).

If the funds from the sale of the pledged item turned out to be insufficient to satisfy the requirements of the pledgee, he has the right to receive the missing amount from the other property of the debtor.

If the amount received from the sale of the pledged property exceeds the amount of the secured obligation, the difference should be transferred to the pledgor.

In this case, the obligation of the pledgor is terminated, and the pledge is also terminated (clause 4, clause 1, article 352 of the Civil Code of the Russian Federation).

Accounting with the mortgagee

Let's consider the accounting and tax accounting of transactions involving the sale of property at auction from the mortgagee.

Accounting

On the date of receipt of funds proceeds from the sale of the pledged property, the pledgee makes an entry in the debit of account 51 “Settlement accounts” in correspondence with account 76 “Settlements with various debtors and creditors” (Instructions for using the Chart of Accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n).

The offset of the received amount towards the repayment of the mortgagor's debt (secured by the pledge) is reflected by an entry in the debit of account 76 in correspondence with the credit of the accounts on which the specified debt was recorded (for example, accounts 62, 58 “Financial investments”, sub-account “Loans provided”, 76, etc. .).

Termination of a pledge in connection with the repayment of the obligation secured by it is reflected by writing off the value of the pledged item agreed upon by the parties from off-balance sheet account 008 “Securities for obligations and payments received.”