Legal alerts / 8.07.2020

Procurement of a loan from an SRO – a new measure of support for development companies

The development industry is one of the main industries hoping for an early exit from the economic difficulties associated with the pandemic. It should be noted that development companies, subject to certain conditions, were able to continue to work during the nationwide non-working period this spring [1].

Additional support measures for the development industry came into force on July 8, 2020 [2] and these provide an opportunity for members of Self-Regulatory Organizations (SRO) (in the field of engineering surveys, architectural and construction design, construction, reconstruction, and capital repair) to obtain a loan from the SRO’s compensation fund.

We remind you that, as a general rule, mandatory membership of SROs is provided for, including for companies undertaking the following:

  • performing the functions of a technical customer;
  • working under “direct” agreements for the performance of engineering surveys / for the preparation of design documentation / for the construction, reconstruction, capital repair, or demolition of capital construction facilities concluded with the developer or technical customer

The maximum loan amount for one member of an SRO may not exceed 15% of 50% of the compensation fund [3]. The interest rate for using the loan cannot exceed half of the key rate of the Central Bank of the Russian Federation on the day the loan is issued. The maximum term during which a loan must be granted cannot be more than 1 year from the date when the loan agreement is concluded, and if the loan is required for the purchase of building materials, structures, or equipment for the performance of work under agreements for work and labor, the maximum term is no more than 5 business days from the date specified in the relevant agreement for the performance of obligations under it.

A loan may be issued to an SRO member to cover solely the following expenses:

(i) the payment of salary to employees;

(ii) the purchase of building materials, structures, and equipment for the performance of work and labor agreements concluded before April 1, 2020 for:

  • the preparation of design documentation / engineering surveys;
  • the construction, reconstruction, capital repair, or demolition of capital construction facilities, or the preservation of items of cultural heritage [4];
  • agreements concluded for the construction of apartment buildings / other real estate facilities [5].

(iii) the payment of remuneration to the bank for the issuing of a new bank guarantee (amending a previously issued bank guarantee), securing the performance of the contractor’s obligations.

 

A member of an SRO must conform to the following requirements for a loan to be granted to it:

  • as of April 1, 2020, it must have no debts in relation to the payment of salaries;
  • as of the first day of the month, it must not have debts in respect of the payment of taxes, fees, penalties in an amount of more than 300,000 rubles;
  • it must not be in a state of liquidation / must not have a court decision declaring it insolvent (bankrupt);
  • it must not be subject to an administrative suspension of its activities in connection with an administrative offense;
  • it must not be in the registers of bad-faith suppliers;
  • the performance of obligations under the loan agreement must be secured (by a pledge of property with a value exceeding the loan amount by at least 30 percent or by the assignment of a claim of monetary obligations under work and labor agreements for the amount of the requested loan, or by a guarantee of the founders (participants) or the sole executive body of a legal entity borrower, or a guarantee of other persons);
  • it must have a concluded bank account agreement with a credit institution in which the funds of the compensation fund for the granting of a loan are placed;
  • it must have a plan for spending the loan indicating the purpose of use and the persons in whose favor payments will be made using the loan funds;
  • it must meet the other requirements specified in Resolution No. 938.

 Control over the use of the loan

The borrower must provide to the SRO:

  • monthly – (1) documents confirming compliance of the use of borrowed funds with the terms of the loan agreement, (2) a certificate from the tax authority about the borrower’s open bank accounts with credit institutions on the last day of the month before the reporting month;
  • within 5 days from the date of receipt of a request from the SRO – (1) additional information on expenses incurred using the loan, (2) the bank account statements of the borrower issued by the credit institution.

If the SRO detects an inconsistency between the expenses incurred by the borrower and the purpose for which it obtained a loan, the SRO sends a notification to the credit institution about the rejection of the debt funds and sends the borrower a request for the early repayment of the loan and interest.

We note that the possibility for a developer to obtain a loan from an SRO is a temporary support measure and to obtain a loan agreement, such agreement must be concluded before January 1, 2021 [6].

 

[1] For more details read our Review

[2] Resolution No. 938 of the Government of the Russian Federation dated June 27, 2020 “On approving the Regulation on certain conditions for the issuing of loans to members of self-regulatory organizations and the procedure for the control the use of funds issued for such loans” (“Resolution No. 938”)

[3] Provided that the issuing of such loans does not lead to a decrease in the size of the compensation fund below its size determined on the day when the SRO makes a decision to issue a loan based on the actual number of members of the SRO and their level of responsibility for obligations.

[4] In accordance with (1) Federal Law No. 44-FZ dated April 5, 2013 “On the contract system in the field of the procurement of goods, works, services for provisioning governmental and municipal needs”, (2) Federal Law No. 223-FZ dated July 18, 2011 “On the procurement of goods, works, and services by certain types of legal entities”, (3) Resolution No. 261of the Government of the Russian Federation dated July 1, 2016 “On the procedure for attracting contractors to provide services and/or perform work involving the capital repair of common property in an apartment building and the procedure for the procurement of goods, works, and services in order to  perform the functions of a specialized non-profit organization carrying out activities aimed at performing the capital repair of common property in apartment buildings.”

[5] In accordance with the Federal Law No. 214-FZ dated December 30, 2004 “On participation in the shared construction of apartment buildings and other real estate facilities and on amendments to certain legislative acts of the Russian Federation”.

[6] Clause 17 of Art. 3.3 of Federal Law No. 191-FZ dated December 29, 2004 “On the implementation of the Town Planning Code of the Russian Federation”

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