Request for a guarantee agreement. Bank guarantees and guarantees
Now it is difficult to find a person who has not taken a loan from a bank at least once in his life. But it's one thing - to buy household appliances in installments. And it is quite another thing to issue a guarantee. If the amount is large, the bank may ask for additional guarantees. Whom should I contact if I need to issue a loan guarantee? What responsibility is imposed on the participants in the transaction? You will learn the answers to these questions from this article.
Definition
Guarantee (Civil Code of the Russian Federation) - the obligation of one person to answer to the debtor's borrower for the latter's fulfillment of the terms of the transaction. The need for such a guarantor most often arises in long-term lending. In the example of a mortgage, this means that the guarantor must return the money to the bank if the borrower cannot do it on their own. In taking on such responsibility, one must be prepared for the consequences.
Why do you need a loan guarantee?
The most interested person in this business is the bank. The credit institution lowers interest rates on loans, the consumer can conclude a profitable deal, and the guarantor provides an additional guarantee for the return of funds. Although the law provides for special benefits for such persons, their responsibility is also high.
The guarantee agreement is concluded between the bank and the guarantor. The written consent of the debtor is not required. Although in some cases banks may ask for it.
The guarantee agreement includes the following items:
Obligation of a guarantor;
The scope of the guarantor's liability;
The amount of guarantees (the amount of the collateral object);
Rights, duties and responsibilities of the parties.
Let's take a closer look at the most important of them.
Loan guarantee: liability
A guarantor and a co-borrower are not the same thing. In the second case, both parties to the contract equally share the rights to the acquired property and obligations. The main difference lies in maximum amount transaction, which the bank will calculate based on the total income of the debtor and co-borrower. cash receipts guarantors cannot increase the credit "ceiling", but their size must be higher than the monthly payments.
IN mortgage lending joint and several liability is used more often. This means that the bank may require the fulfillment of obligations from the borrower and the guarantor, both in full and in part. Credit organisation can shift the responsibility to the guarantor. Contracts with subsidiary liability are less often concluded. In this case, the right to recover the unpaid amount from the bank appears only if the borrower cannot return it on his own. First, claims are presented to the principal debtor. At the same time, the bank is obliged to make sure that the borrower cannot repay the loan himself: collect all the evidence, obtain the appropriate court decision, wait a certain period, and only after that apply to the guarantor. The problem is also that the main debtor can disappear without a trace. Then it will be impossible to prove his insolvency. Claims against the guarantor disappear together with the debtor. Therefore, such contracts are extremely rare.
Rights and obligations of the guarantor
When the bank asks you to repay the loan:
As soon as the borrower stops paying;
If the value of the debtor's property is not enough to repay the loan;
In the event of the borrower's death.
The bank may demand from the guarantor:
Pay off the principal amount of the debt;
pay off interest;
Pay fines and court fees.
Although the guarantor assumes great responsibility, he also has a number of rights. They are spelled out in Art. 365 of the Civil Code of the Russian Federation. The most important of them is that if the guarantor has fulfilled all obligations, then he receives the rights of the creditor. That is, it can require the debtor to compensate him for all losses, including interest under the contract. In this case, the bank is obliged to provide him with all the documents certifying the requirements for the borrower.
Decision-making
A loan guarantee is a big responsibility. Therefore, before signing a contract, you need to carefully analyze your income and expenses. If the borrower evades its obligations, the bank "switches" to the guarantor. First, they try to recover the debt in money, then in movable and real estate. But sometimes the sequence can change. For example, if the borrower took a loan for a car, but he does not have his own housing, then by a court decision, the bank will be able to collect the debt from the guarantor's living space if the latter does not have a car of equal value.
But if the apartment was purchased by mortgage loan, and the guarantor has no other habitable property, the court will refuse the request. On the other hand, after the fulfillment of all obligations to the credit institution, the guarantor acquires the right to demand compensation for material damage from the borrower, including judicial order. In this case, the bank is obliged to transfer all documents to it and notify the debtor about this.
Failure to fulfill the obligations undertaken by the guarantor will put an end to the possibility of taking a loan in the future. Therefore, the decision must be approached very carefully. It is worth re-reading the contract several times in a calm atmosphere (a sample guarantee can be obtained from bank employees for the period of making a decision). It is necessary to assess not only the solvency of the debtor, but also your own. It will be very difficult in the future to take a loan without collateral and guarantee to a person who acts as a guarantor.
How to be saved
The hardest thing to evade obligations is if the spouse acts as a guarantor. Things are even worse if the guarantors are retired parents who are not currently working. There are only three ways out of this situation: to ask for debt restructuring, credit holidays ah or sell mortgaged property. Most often, such issues are settled through the courts. If the bank wins the case, the decision will be referred to the state executive service. If the guarantor does not have a source of income, a car or housing, then after 6 months the GIS will return the decision to credit institution without execution. A second appeal may be unsuccessful if the guarantor does not acquire work or property.
The court will not allow the bank to take all the money down to the penny. If the family has two minor children or disabled relatives who have filed for alimony, then up to 70% of income can be spent on their maintenance. That is, it is quite legal to do so that the bank will receive crumbs. But in such cases, the credit institution and collectors will try to find "gray" income from the debtor.
Everything must be done on time
The bank may force the guarantor to repay the borrower's debt no later than six months after the termination of payments. In this case, the credit institution is obliged to demand a refund in writing. Litigation can drag on for a long time. Usually the situation is as follows: the borrower does not make payments for 2-3 months, another 30 days are spent on resolving the issue of credit holidays and debt restructuring. Even more time is spent on transferring the case to collectors and "hunting" for the borrower. Therefore, after receiving an official letter from the bank, the first thing to do is to ask when your partner last made a payment for a loan. There is a chance that the train has left, and the bank has no right to demand anything.
But if the court...
Even if the request arrived on time, you should not panic. Even bankers admit that the main purpose of a conversation with a guarantor is to psychologically influence him in order to make the borrower pay. In such cases, lawyers advise to carefully review the contract again. Sometimes it is possible to legally oblige the bank to sign an additional agreement with the conditions necessary for the guarantor, referring to the fact that the old provisions are contrary to the law.
Extreme lovers can try to file a lawsuit on behalf of relatives to recognize the guarantor as incompetent. Then all disputes will be resolved in the presence of the board of trustees, which will not allow the property to be taken away from their “patient”. But even if such extremals are found, the bank may require a forensic examination to confirm the diagnosis.
When does the surety terminate?
The Civil Code of the Russian Federation provides for several reasons:
bank in unilaterally made changes to the contract;
The credit institution has not received the written consent of the guarantor;
The borrower, which is a legal entity, has been liquidated;
The debtor is dead.
However, obligations under a surety agreement may be inherited. But in this case, there are concessions. Successors are obliged to repay the debt if its amount does not exceed the value of the property received.
Responsibilities are inherited:
From civil law contracts;
Compensation for material losses;
For payment of a penalty, fine or penalty;
Expenses for the burial of the testator.
Obligations from civil law contracts, which only the testator could fulfill, do not pass by inheritance.
Cancellation of the loan guarantee can be initiated by the guarantor himself, if he has doubts about the solvency of the partner. In this case, you need to find another candidate, contact the bank and draw up annexes to the contracts. This will work if the borrower is still fulfilling its obligations. If the debtor does not want to re-sign the contract, then it can be terminated in court. Previously, the guarantor should re-register all property to relatives.
You can challenge a loan guarantee in Ukraine (as well as in Russia) if:
The bank applied later than 180 days after the delay in payments;
The guarantor is a family member, and the pledged property is joint;
The guarantor did not personally sign the contract;
The guarantor is an incompetent person;
70% of the guarantor's income goes to child support;
The guarantor is unemployed and does not own property.
What about enterprises?
A guarantee for a loan of a legal entity provides only joint and several liability of partners. Finding such a guarantor is very difficult. First, he must have a stable financial position to pay the bank if needed. Secondly, the guarantor himself must have a good credit history in past. Most often, the guarantor in such cases is another entity. Guarantees, obligations and the procedure for signing documents are the same as for individuals. First you need to get the written consent of the guarantor. Then submit documents to the bank. This:
Application form;
State registration certificate;
Documents on the registration of the taxpayer;
Financial statements for the last year.
After all the formalities are settled, you can start signing the documents. IN entrepreneurial activity such a contract is used to secure the obligations that arise from the contract of sale.
Legislation
The loan guarantee is regulated by art. 361-367 of the Civil Code of the Russian Federation. But in practice, lawyers often have disputes about the legality of attracting a guarantor. According to Art. 361, the guarantor undertakes to be responsible to the debtor's creditor for the performance of obligations in whole or in part. The agreement is consensual. Obligations arise only from the guarantor. He cannot unilaterally refuse them, if this is not provided for in the document. If necessary, the guarantor is obliged to reimburse the principal debt, interest for its use, legal costs. The liability of the guarantor is additional in nature, that is, it occurs only if the debtor has not fulfilled his obligations.
One of the controversial issues is bringing the guarantor to liability after the liquidation of the debtor. Example: a borrower - an organization that did not fulfill its obligations under the loan, was declared bankrupt and liquidated. Should the guarantor be liable to the bank? IN judicial practice There are many cases in which the court satisfied such requirements. But how right is this decision?
According to Art. 419 of the Civil Code of the Russian Federation, with the liquidation of the organization, all its obligations are terminated. Claims to collect money from the guarantor cannot be satisfied by the court. Exceptions are cases when legal acts the fulfillment of the obligation is assigned to another person (a claim for compensation for harm caused to health or life).
The guarantor is not a joint and several debtor to the creditor. He is responsible for the fulfillment by the principal debtor of obligations in full or in part. Because of this accessory nature, the liability of the guarantor cannot exist separately from the main obligation. If it does not exist, then, in accordance with Art. 367 of the Civil Code of the Russian Federation, the guarantee also terminates. Therefore, the assertion that the guarantor remains obligated until the debt is paid is contrary to law.
Summary
From all of the above, one conclusion can be drawn: if there is a need for borrowed funds, then it is better to take a loan without guarantors. It will be very difficult to find those willing to risk all their property. Yes, and the responsibility of the guarantor is high. Such transactions are regulated by the Civil Code of the Russian Federation. It spells out the conditions for the emergence, transfer of obligations and the consequences for their non-fulfillment. You can refuse after signing the documents, but it will be very difficult to do this. Therefore, if possible, it is better to take a loan without guarantors.
________________ "____" ____________ 201___
_______________ , hereinafter referred to as the "Bank" or "Guarantor", represented by ____________________________________________, acting on the basis of __________________, on the one hand, and _________________________________, hereinafter referred to as the "Guarantor", on the other hand, have entered into this agreement as follows:
1. THE SUBJECT OF THE AGREEMENT
1.1. In accordance with this agreement, the Guarantor undertakes to be responsible to the Bank for the fulfillment by the Limited Liability Company __________________________________ (location: _______________________________________, TIN ________________, PSRN ____________________), hereinafter referred to as the “Principal”, of all obligations under Agreement No. ___________ to provide bank guarantee dated "___" __________ 201__ (hereinafter referred to as the "Agreement"), concluded between the Guarantor and the Principal.
1.2. The Guarantor is familiar with all the terms of the Agreement and agrees to be responsible for the fulfillment by the Principal of his obligations in full, including under the following terms of the Agreement:
1.2.1. The Guarantor assumes the obligation to provide the Principal with a bank guarantee (hereinafter referred to as the "Bank Guarantee") on the terms provided for in clause 1.3. of this agreement, in favor of ______________________________________ (address: ____________________________________________, TIN _____________, KPP _________________) (hereinafter referred to as the "Beneficiary"), which ensures the fulfillment of all obligations of the Principal to the Beneficiary specified in the State Contract for the supply of _____________________________ (hereinafter referred to as the "State Contract"), concluded between the Beneficiary and the Principal following the results of an open auction in electronic form, (registry number of the auction _________________________, protocol dated "___" __________ 201__, address of the electronic site: ____________), within the stipulated time, including the payment of a penalty and / or the Principal's refusal to return the received advance payment under the state contract.
1.3. Main conditions of the Bank Guarantee:
1.3.1. The amount of the Bank Guarantee is: _______________________________________________;
1.3.2. The bank guarantee comes into force from the date of conclusion of the State contract and is valid until "___" ___________ 201__.
1.3.3. The Guarantor undertakes to pay to the Beneficiary cash within the amount specified in clause 1.3.1 of this Agreement, in case of non-fulfillment or improper fulfillment by the Principal of the obligations stipulated State contract, no later than 10 (Ten) days from the date of receipt of the Beneficiary's written request containing an indication of what the Principal's violation of obligations, in security of which the Bank Guarantee is issued, consists of.
Claim of the Beneficiary to the Guarantor for payment sum of money under the Bank Guarantee must be signed by the head of the Beneficiary or a person authorized by him and certified by the seal of the Beneficiary. The original Bank Guarantee must be attached to the claim, except for cases when the claim for payment under the Bank Guarantee is submitted for an amount less than total amount Bank Guarantee (in this case, a copy of the Bank Guarantee certified by the authorized person of the Beneficiary is provided), and copies of the following documents certified by the authorized person of the Beneficiary and the seal of the Beneficiary:
- confirming the authority of the person who signed the demand for payment of the amount of money under the Bank Guarantee, if the demand is not signed by the head of the Beneficiary;
- a copy of the State contract certified by the Beneficiary.
A written request for payment under the Bank Guarantee must be received by the Guarantor at the place of its issue by registered mail with acknowledgment of receipt or by courier service at the address: _____________________________.
1.3.4. The bank guarantee includes the obligation of the Guarantor to pay the Beneficiary the funds within the amount specified in clause 1.2.1 of this agreement in case of non-performance or improper performance by the Principal of all obligations under the State Contract.
1.3.5. The obligations of the Guarantor to the Beneficiary, stipulated by the Bank Guarantee, are limited to the amount for which it is issued.
1.3.6. The liability of the Guarantor to the Beneficiary for non-fulfillment or improper fulfillment by the Guarantor of the obligation under the Bank Guarantee is limited to the amount for which it was issued.
1.4. In case of failure to fulfill its obligations in accordance with paragraphs. 2.2.1., 2.2.2. and 4.1. of the Agreement, the Principal undertakes to pay the Guarantor a penalty in the amount of 0.1% (Zero point one percent) of the amount of the defaulted obligation for each day of delay.
1.5. For the issuance of the Bank Guarantee, the Principal pays the Guarantor a fee of 1.5% (One point five) per annum of the amount of the Bank Guarantee on the date of signing the Agreement.
2. RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1. The Guarantor undertakes to be liable to the Bank jointly with the Principal for the fulfillment of obligations under the Agreement, including the fee for issuing a bank guarantee, reimbursement of documented expenses and losses incurred in servicing the Bank Guarantee, payment of a penalty, reimbursement of court costs and other losses of the Bank caused by non-performance or improper performance by the Principal of its obligations under the Agreement.
2.2. The Guarantor is obliged, no later than the next business day after receiving a written notice from the Bank about the Principal's improper performance of its obligations under the Agreement, to pay the Bank the amount specified in such notice and payable by the Principal in accordance with the terms of the Agreement.
2.3. The Guarantor is obliged to notify the Bank of changes in passport data, registration (registration) address, actual place of residence, work, last name or first name, and the occurrence of circumstances that could affect the Guarantor's fulfillment of obligations under this Agreement and the Agreement no later than 1 (One) business day from the date of these changes, with the provision within 5 (Five) working days of copies of supporting documents duly certified.
2.4. The Guarantor who has fulfilled the obligation for the Principal under the Agreement shall transfer the Bank's rights under this obligation to the extent that the Guarantor satisfied the Bank's demand.
2.5. The Guarantor shall not have the right to unilaterally withdraw from the obligations assumed under the Agreement without the consent of the Bank or change its terms. Any agreement between the Guarantor and the Principal in relation to the Agreement does not affect the obligations of the Guarantor to the Bank under this agreement.
2.6. The Guarantor is not entitled to raise any objections against the Bank's claims that the Principal could submit.
2.7. The guarantor guarantees that he has received the consents of third parties necessary for the conclusion of this agreement, and also that between him and his wife (husband) no special regime of common property of spouses has been established, as a result of which he is not entitled to conclude this transaction independently or without spouse's consent.
3. RESPONSIBILITIES OF THE PARTIES
3.1. For improper performance of obligations under this agreement, the parties are liable in accordance with current legislation.
4. TERM OF THE CONTRACT
4.1. The agreement comes into force from the date of its signing by the parties.
4.2. The contract terminates in the following cases:
- full performance by the Principal of all its obligations to the Bank under the Agreement;
- full fulfillment by the Guarantor of all its obligations to the Bank in accordance with this agreement;
- acceptance by the Bank of compensation (in accordance with Art. 409 Civil Code Russian Federation);
- termination of the Principal's obligation under the Agreement on other grounds;
- in other cases stipulated by the current legislation of the Russian Federation.
4.3. Unilateral termination of this Agreement by the Guarantor is not allowed.
5. OTHER TERMS
5.1. All changes and additions to this agreement are valid only if they are made in writing and signed by authorized persons on both sides.
5.2. Any notice or other communication sent by the parties to each other under this agreement must be made in writing. Such notification or message shall be deemed to have been properly sent if it is delivered to the addressee by courier, registered mail, telex or telefax to the postal address specified in this agreement and signed by an authorized person.
5.3. If one of the parties changes its address or details, then it is obliged to inform the other party about this no later than 1 (One) business day from the date of these changes, with the provision of duly certified copies of supporting documents within 5 (Five) business days .
5.4. All disputes arising from this agreement are subject to consideration in accordance with the procedure established by the legislation of the Russian Federation.
5.5. This agreement is made in two copies, having the same legal force, one copy for the Bank, for the Guarantor.
6. LOCATION AND DETAILS OF THE PARTIES
Bank:
Guarantor:
7. SIGNATURES OF THE PARTIES
Bank |
Guarantor |
|
_______________________________ |
________________________________________ |
|
___________________ /_______________/ |
(FULL NAME. fully) ________________________________________ (signature) |
Document type: Guarantee agreement
Document file size: 9.5 kb
The surety agreement obliges a third party to be liable for the fulfillment of obligations by the borrower. It is concluded by the creditor and the guarantor. It doesn't have separate sections, all conditions are listed. The paper is an addition to the loan agreement, which is concluded at the moment when the funds are provided to the borrower.
What is included in the guarantee document?
The registration number and the date of drawing up the loan agreement, which is the main one, as well as the loan amount are indicated. According to the contractual terms, the guarantor, if the borrower fails to fulfill its obligations, must reimburse:
- the amount lent;
- interest accrued for the period of use of funds;
- forfeit;
- creditor's losses.
It is important that the document clearly indicates the maximum amount to which the liability of the third party is limited. Further, the deadlines for the fulfillment of obligations by the guarantor are specified. Here are the penalties for non-compliance.
Features of the agreement
The document provides that in the conditions of a decrease in the fee for a loan, the number of claims decreases. In case of full or partial satisfaction of the needs of the creditor, he is obliged to inform the guarantor about this, having done this immediately.
When the guarantor fulfills all the obligations of the borrower, the rights of the creditor pass to him. Accordingly, he receives documents certifying this. All disputes between the parties are resolved in arbitration.
Surety agreement form (standard form)
Sample surety agreement (standard form) (filled out form)
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GUARANTEE AGREEMENT No.
in a person acting on the basis of , hereinafter referred to as " Creditor”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ Guarantor”, on the other hand, hereinafter referred to as “ Parties”, have concluded this agreement, hereinafter referred to as the “Agreement”, as follows:- This Agreement is an integral part of the loan agreement No. from "" of the year, under which the Lender provided the Borrower (aka the Debtor) with a loan in the amount of rubles up to "" of the year.
- The Guarantor undertakes to the Lender to bear (solidary or subsidiary) liability for the fulfillment by the Borrower of its obligations under the above loan agreement and reimburse the Lender in case of untimely performance by the Borrower of its obligations:
- received loan amount in the amount of rubles;
- interest for using a loan in the amount of rubles or without specifying the amount;
- a penalty in the amount of rubles;
- losses of the Lender;
- the liability of the Guarantor is limited to the amount of the issued loan and interest on it;
- the liability of the Guarantor is limited to the maximum amount of rubles.
- The obligations stipulated by clause 2 of this agreement must be fulfilled by the Guarantor within days from the date of receipt of a notice from the Lender about the violation by the Borrower of its obligations to repay the loan.
- The Guarantor, who has not fulfilled the requirements of clause 3 of the Agreement on time, is obliged to pay the Lender a penalty in the amount of % of the amount to be reimbursed for each day of delay.
- When changing the terms of the loan agreement in terms of reducing the fee for the loan, the amount of claims against the Guarantor in case of default by the Borrower of its obligations is reduced accordingly.
- The Creditor who has received satisfaction in full or in part of his claims from the Borrower is obliged to immediately notify the Guarantor of this.
- If the Borrower fulfills the obligations secured by the surety, and the Guarantor, regardless of the Borrower, fulfills the obligation, then in accordance with Art. 366 of the Civil Code of the Russian Federation, the Guarantor has the right to recover from the Creditor what was received unjustifiably.
- All rights of the Lender shall be transferred to the Guarantor who has fulfilled the obligations for the Borrower. The latter in this case is obliged to transfer to the Guarantor all documents certifying the claims against the Borrower, and the rights that ensure these claims, as well as confirmation that the Borrower (Debtor) has been notified in writing of the transfer of the Creditor's rights to the Guarantor.
- Disputes between the parties are considered in the Arbitration Court of the city.
- This agreement comes into force from the date of crediting the funds transferred by the Lender to the current account of the Borrower.
- This agreement terminates:
- with the termination of the loan agreement secured by the guarantee;
- in the event of a change in the terms of the loan agreement, entailing an increase in liability or other adverse consequences for the Guarantor, without his consent;
- if the Guarantor does not give consent to the Creditor to be responsible for the new Debtor in the event of a debt transfer;
- if the Lender refuses to accept due performance offered by the Borrower or Guarantor;
- after the expiration of the specified period in the surety agreement for which it is given;
- if no deadline has been set and if the Creditor does not file a claim against the Guarantor within a year from the date of the due date for the performance of the secured loan agreement;
- if the deadline for the performance of the main obligation is not specified, cannot be determined by the moment of demand and if the Creditor does not bring a claim against the Guarantor within two years from the date of conclusion of the surety agreement.
LEGAL ADDRESSES AND BANKING DETAILS OF THE PARTIES
Creditor
- Legal address:
- Mailing address:
- Phone fax:
- TIN/KPP:
- Checking account:
- Bank:
- Correspondent account:
- BIC:
- Signature:
Guarantor
- Legal address:
- Mailing address:
- Phone fax:
- TIN/KPP:
- Checking account:
- Bank:
- Correspondent account:
- BIC:
- Signature:
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The institute of guarantee is gradually being abolished and less and less used by banks in the form of an additional type of guarantee. Large ones can be obtained without the involvement of guarantors in a number of credit organizations in the country.
At the same time, the largest organizations such as Sberbank, VTB Banking Group, Alfa-Bank, Rosselkhozbank and others allow or require the mandatory involvement of guarantors for a number of their credit programs. The procedure for attracting a guarantor, his rights and obligations, as well as the degree of possible liability, are regulated by law.
Who are guarantors and why are they needed?
An exhaustive interpretation of this term is given in Art. 361 of the Civil Code of the Russian Federation. So, the guarantor in the loan agreement is a third party who is responsible for the fulfillment by the borrower of his obligations in full or in a certain part of them. The guarantor is accepted as a guarantor of the debtor's performance of his direct obligations.
The essence of the concept of "guarantee" is that in case of non-performance (or improper performance) by the title borrower of his obligations, the responsibility under the contract is shifted to the guarantor. Prior to this, the credit institution takes all legal measures to recover funds from the title borrower.
When attracting a guarantor, the borrower increases his chances not only for actually obtaining a loan, but also for more profitable terms under contract. The presence of a guarantor sharply reduces the possible credit risks bank, so the application is more likely to be approved. In particular, this applies to contracts under which large loan amounts are allocated.
Who can act as a guarantor
Legislatively, the circle of persons who can be guarantors is not fixed anywhere. Claims against such persons are under the exclusive jurisdiction of credit institutions. This preference is assigned to banks, which have the right to decide for themselves who can act as a guarantor for their loan programs.
Taking into account the general indicators and requirements of banks, it is possible to describe the range of requirements that apply to potential guarantors. Based on these requirements, one can roughly imagine who is considered by banks as guarantors. The list of requirements is as follows:
- the presence of family ties - some banks insist that the guarantor and the title borrower be in close family ties;
- solvency - exactly the same requirements are imposed on the guarantor that apply to the solvency of the borrower;
- age - as a rule, the age of the guarantor must meet the age requirements for obtaining this loan;
- place of residence - the region of residence of the guarantor and the borrower must match;
- documentary security - the guarantor provides the same documents and certificates that the title borrower provides to the bank;
- credit history - standard requirements, according to which the credit history should not show gross violations, both under the guarantee and under agreements where the potential guarantor acted as a borrower.
Also, the guarantor must not have a criminal record, be officially employed. The presence of open credit obligations from a potential guarantor will lead to the bank's refusal to conclude an agreement. A credit institution must be sure that the guarantor will be able to properly fulfill its obligations. Therefore, the presence of outstanding loans is considered as a significant obstacle to the normal performance of obligations.
Refusal to admit a specific guarantor is not a refusal to conclude loan agreement. In this case, the borrower will be directed to attract another candidate for the role of the guarantor. It makes no sense to demand to voice the reason for the refusal, since, as in the case of a refusal to issue a loan, it is never voiced by credit organizations.
Individuals and legal entities can act as guarantors under any credit agreements. According to established practice, banks give more preference to the first option. In some cases, a credit institution imposes a ban on attracting a company or organization as a guarantor. And such a ban cannot be considered a violation.
Rights and obligations of the guarantor
Aggregate rights and obligations are delimited in two directions: by virtue of law or under the terms of the contract. The first direction cannot be reviewed by the parties, as it has an imperative (obligatory) character. In the second case, the conditions are assigned by the parties - de facto, the credit institution assigns these conditions solely, at its own discretion.
The preferences and obligations of the current guarantor begin to operate from the moment the supplementary agreement is concluded. At the same time, the use of rights or the fulfillment of obligations by the guarantor is always linked to the actions (or inaction) of the title borrower.
Obligations of the guarantor
If the main borrower fails to fulfill its previously assumed obligations, then the credit institution puts forward aggregate requirements for the guarantor. The volume of requirements includes the repayment of all obligations presented to the main borrower. That is, the guarantor will have to repay all payments under the agreement, including penalties that the bank imposes on the title borrower. The accrual of penalty interest in respect of the borrower is equated to the accrual in respect of the guarantor.
For the normal performance of duties and for obtaining additional guarantees, the credit institution, in the process of fulfilling the contract, makes the same requirements for guarantors as for title borrowers. Therefore, in addition to paying off debt, guarantors are required to:
- at the request of the bank, submit any documents, certificates, other data, within the prescribed period;
- inform the creditor about changes in the current financial situation that make it difficult to fulfill obligations - loss of a job, obtaining a loan from a third-party organization, sale of liquid property;
- inform the organization about the change of place of permanent residence;
- report the initiation of a criminal case or the filing of a civil lawsuit against oneself, or the imposition of sanctions on liquid property;
- provide data on a significant deterioration in physical condition - awarding a degree of disability, long-term disability;
- perform any other actions at the first request of the credit institution.
The guarantor also undertakes to inform the credit institution about the whereabouts of the title borrower if the latter does not contact the organization for a long time. Failure to fulfill these obligations gives the bank the right to appeal to the courts. When filing a claim against the title borrower, the current guarantor bears joint and several liability, with the possible recovery of his liquid property.
Rights of the guarantor
To equalize the position of all persons involved in the execution of the contract, the law provides for a list of rights that guarantors can use regardless of the bank in this regard. First of all, the guarantor enjoys the same rights as the main borrower. This means that he has the right to demand any documents and other information from the bank, and the bank, at the first request of the person, undertakes to provide the requested data.
In addition, the guarantor may raise objections to the requirements of the bank, both in the pre-trial order and in the framework of the proceedings. In the process of interacting with the borrower, the guarantor may make claims against the latter and interact with him in any other way.
Considering that it is impossible to refuse the guarantee, after fulfilling the requirements of the bank, the current guarantor may apply to the court to recover the amount paid by the bank from the main borrower (Article 365 of the Civil Code of the Russian Federation). If the guarantor duly fulfills his obligations, the courts, when considering such issues, take their side.
: Finally, the guarantor has the right not to fulfill its obligations in terms of full / partial payment of the debt of the main borrower, if there is reason to believe that the bank can satisfy its requirements in actions directed against the debtor.
Conclusion of a guarantee agreement
To conclude a guarantee agreement, the relevant legislation puts forward certain requirements. It should be noted that a separate agreement is concluded with the approved guarantor, which has the appropriate name. The loan agreement should have a section indicating the presence of a third party in the legal relationship, with a reference to the surety agreement.
An additional contract may be concluded simultaneously with the main one, or after the conclusion of the main contract. The first option is used more often - immediately after the conclusion of the loan agreement, supplementary contract guarantees. The text of the document maintains the following structure:
- details of the guarantor - full data, indicating the initials and place of permanent residence;
- the name of the contract under which the guarantee is provided - information with amounts, terms, penalties;
- information about the bank and the borrower - an excerpt from the main agreement is given;
- the degree of responsibility of the attracted guarantor;
- cases in which the creditor makes claims against the guarantor;
- the responsibility of the parties;
- links to additional documents.
Like any other agreement, a guarantee agreement is concluded only with the free will of the potential guarantor. The conclusion is provided only in writing. If the written form is not observed, the supplementary agreement shall be deemed void. If the loan agreement is declared invalid, the guarantee agreement is automatically recognized as invalid.
In the opposite direction, this rule does not work. If the guarantee agreement is declared invalid, this may not imply the invalidity of the main agreement. To a greater extent, the position of the credit institution itself is taken into account here.
If the potential guarantor is officially married, then the consent of the second spouse to conclude a guarantee agreement is not required. Credit institutions cannot require such consent. By definition, the effect of the surety agreement begins simultaneously with the effect of the loan agreement, therefore both agreements are concluded on the same day.
If the amount is large, the bank may ask for additional guarantees. Whom should I contact if I need to issue a loan guarantee? What responsibility is imposed on the participants in the transaction? You will learn the answers to these questions from this article.
Definition
Guarantee (Civil Code of the Russian Federation) - the obligation of one person to answer to the debtor's borrower for the latter's fulfillment of the terms of the transaction. The need for such a guarantor most often arises in long-term lending. In the example of a mortgage, this means that the guarantor must return the money to the bank if the borrower cannot do it on their own. In taking on such responsibility, one must be prepared for the consequences.
Why do you need a loan guarantee?
The most interested person in this business is the bank. The credit institution lowers interest rates on loans, the consumer can conclude a profitable deal, and the guarantor provides an additional guarantee for the return of funds. Although the law provides for special benefits for such persons, their responsibility is also high.
The guarantee agreement is concluded between the bank and the guarantor. The written consent of the debtor is not required. Although in some cases banks may ask for it.
The guarantee agreement includes the following items:
The scope of the guarantor's liability;
The amount of guarantees (the amount of the collateral object);
Rights, duties and responsibilities of the parties.
Let's take a closer look at the most important of them.
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Loan guarantee: liability
A guarantor and a co-borrower are not the same thing. In the second case, both parties to the contract equally share the rights to the acquired property and obligations. The main difference lies in the maximum amount of the transaction, which the bank will calculate based on the total income of the debtor and co-borrower. The guarantor's cash receipts cannot increase the credit "ceiling", but their amount must be higher than the monthly payments.
In mortgage lending, joint and several liability is more often used. This means that the bank may require the fulfillment of obligations from the borrower and the guarantor, both in full and in part. The credit institution may shift the responsibility to the guarantor. Contracts with subsidiary liability are less often concluded. In this case, the right to recover the unpaid amount from the bank appears only if the borrower cannot return it on his own. First, claims are presented to the principal debtor. At the same time, the bank is obliged to make sure that the borrower cannot repay the loan himself: collect all the evidence, obtain the appropriate court decision, wait a certain period, and only after that apply to the guarantor. The problem is also that the main debtor can disappear without a trace. Then it will be impossible to prove his insolvency. Claims against the guarantor disappear together with the debtor. Therefore, such contracts are extremely rare.
Rights and obligations of the guarantor
When the bank asks you to repay the loan:
As soon as the borrower stops paying;
If the value of the debtor's property is not enough to repay the loan;
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In the event of the borrower's death.
The bank may demand from the guarantor:
Pay off the principal amount of the debt;
Pay fines and court fees.
Although the guarantor assumes great responsibility, he also has a number of rights. They are spelled out in Art. 365 of the Civil Code of the Russian Federation. The most important of them is that if the guarantor has fulfilled all obligations, then he receives the rights of the creditor. That is, it can require the debtor to compensate him for all losses, including interest under the contract. In this case, the bank is obliged to provide him with all the documents certifying the requirements for the borrower.
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Decision-making
A loan guarantee is a big responsibility. Therefore, before signing a contract, you need to carefully analyze your income and expenses. If the borrower evades its obligations, the bank "switches" to the guarantor. First, they try to recover the debt in money, then movable and immovable property. But sometimes the sequence can change. For example, if the borrower took a loan for a car, but he does not have his own housing, then by a court decision, the bank will be able to collect the debt from the guarantor's living space if the latter does not have a car of equal value.
But if the apartment was purchased on a mortgage loan, and the guarantor has no other habitable property, then the court will refuse the request. On the other hand, after the fulfillment of all obligations to the credit institution, the guarantor acquires the right to demand compensation for material damage from the borrower, including in court. In this case, the bank is obliged to transfer all documents to it and notify the debtor about this.
Failure to fulfill the obligations undertaken by the guarantor will put an end to the possibility of taking a loan in the future. Therefore, the decision must be approached very carefully. It is worth re-reading the contract several times in a calm atmosphere (a sample guarantee can be obtained from bank employees for the period of making a decision). It is necessary to assess not only the solvency of the debtor, but also your own. It will be very difficult in the future to take a loan without collateral and guarantee to a person who acts as a guarantor.
How to be saved
The hardest thing to evade obligations is if the spouse acts as a guarantor. Things are even worse if the guarantors are retired parents who are not currently working. There are only three ways out of this situation: ask for debt restructuring, loan holidays or sell collateral. Most often, such issues are settled through the courts. If the bank wins the case, the decision will be transferred to the state executive service. If the guarantor does not have a source of income, a car or housing, then after 6 months the GIS will return the decision to the credit institution without execution. A second appeal may be unsuccessful if the guarantor does not acquire work or property.
The court will not allow the bank to take all the money down to the penny. If the family has two minor children or disabled relatives who have filed for alimony, then up to 70% of income can be spent on their maintenance. That is, it is quite legal to do so that the bank will receive crumbs. But in such cases, the credit institution and collectors will try to find "gray" income from the debtor.
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Everything must be done on time
The bank may force the guarantor to repay the borrower's debt no later than six months after the termination of payments. In this case, the credit institution is obliged to demand a refund in writing. Litigation can drag on for a long time. Usually the situation is as follows: the borrower does not make payments for 2-3 months, another 30 days are spent on resolving the issue of credit holidays and debt restructuring. Even more time is spent on transferring the case to collectors and “hunting” for the borrower. Therefore, after receiving an official letter from the bank, the first thing to do is to ask when your partner last made a payment for a loan. There is a chance that the train has left, and the bank has no right to demand anything.
But if all the same court.
Even if the request arrived on time, you should not panic. Even bankers admit that the main purpose of a conversation with a guarantor is to psychologically influence him in order to make the borrower pay. In such cases, lawyers advise to carefully review the contract again. Sometimes it is possible to legally oblige the bank to sign an additional agreement with the conditions necessary for the guarantor, referring to the fact that the old provisions are contrary to the law.
Extreme lovers can try to file a lawsuit on behalf of relatives to recognize the guarantor as incompetent. Then all disputes will be resolved in the presence of the board of trustees, which will not allow the property to be taken away from their “patient”. But even if such extremals are found, the bank may require a forensic examination to confirm the diagnosis.
When does the surety terminate?
The Civil Code of the Russian Federation provides for several reasons:
The Bank unilaterally amended the agreement;
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The credit institution has not received the written consent of the guarantor;
The borrower, which is a legal entity, has been liquidated;
However, obligations under a surety agreement may be inherited. But in this case, there are concessions. Successors are obliged to repay the debt if its amount does not exceed the value of the property received.
Responsibilities are inherited:
From civil law contracts;
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Compensation for material losses;
For payment of a penalty, fine or penalty;
Expenses for the burial of the testator.
Obligations from civil law contracts, which only the testator could fulfill, do not pass by inheritance.
Cancellation of the loan guarantee can be initiated by the guarantor himself, if he has doubts about the solvency of the partner. In this case, you need to find another candidate, contact the bank and draw up annexes to the contracts. This will work if the borrower is still fulfilling its obligations. If the debtor does not want to re-sign the contract, then it can be terminated in court. Previously, the guarantor should re-register all property to relatives.
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You can challenge a loan guarantee in Ukraine (as well as in Russia) if:
The bank applied later than 180 days after the delay in payments;
The guarantor is a family member, and the pledged property is joint;
The guarantor did not personally sign the contract;
The guarantor is an incompetent person;
70% of the guarantor's income goes to child support;
The guarantor is unemployed and does not own property.
What about enterprises?
A guarantee for a loan of a legal entity provides only joint and several liability of partners. Finding such a guarantor is very difficult. Firstly, he must have a stable financial position in order to pay off the bank if necessary. Secondly, the guarantor himself must have a good credit history in the past. Most often, another legal entity acts as a guarantor in such cases. Guarantees, obligations and the procedure for signing documents are the same as for individuals. First you need to get the written consent of the guarantor. Then submit documents to the bank. This:
Documents on the registration of the taxpayer;
Financial statements for the last year.
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After all the formalities are settled, you can start signing the documents. In business, such an agreement is used to secure obligations that arise from a sales contract.
Legislation
The loan guarantee is regulated by Art. Civil Code of the Russian Federation. But in practice, lawyers often have disputes about the legality of attracting a guarantor. According to Art. 361, the guarantor undertakes to be responsible to the debtor's creditor for the performance of obligations in whole or in part. The agreement is consensual. Obligations arise only from the guarantor. He cannot unilaterally refuse them, if this is not provided for in the document. If necessary, the guarantor is obliged to reimburse the principal debt, interest for its use, legal costs. The liability of the guarantor is additional in nature, that is, it occurs only if the debtor has not fulfilled his obligations.
One of the controversial issues is bringing the guarantor to liability after the liquidation of the debtor. Example: a borrower - an organization that did not fulfill its obligations under the loan, was declared bankrupt and liquidated. Should the guarantor be liable to the bank? In judicial practice, there are many cases when the court satisfied such requirements. But how right is this decision?
According to Art. 419 of the Civil Code of the Russian Federation, with the liquidation of the organization, all its obligations are terminated. Claims to collect money from the guarantor cannot be satisfied by the court. Exceptions are cases when, by legal acts, the fulfillment of an obligation is assigned to another person (a claim for compensation for harm caused to health or life).
The guarantor is not a joint and several debtor to the creditor. He is responsible for the fulfillment by the principal debtor of obligations in full or in part. Because of this accessory nature, the liability of the guarantor cannot exist separately from the main obligation. If it does not exist, then, in accordance with Art. 367 of the Civil Code of the Russian Federation, the guarantee also terminates. Therefore, the assertion that the guarantor remains obligated until the debt is paid is contrary to law.
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Summary
From all of the above, one conclusion can be drawn: if there is a need for borrowed funds, then it is better to take a loan without guarantors. It will be very difficult to find those willing to risk all their property. Yes, and the responsibility of the guarantor is high. Such transactions are regulated by the Civil Code of the Russian Federation. It spells out the conditions for the emergence, transfer of obligations and the consequences for their non-fulfillment. You can refuse after signing the documents, but it will be very difficult to do this. Therefore, if possible, it is better to take a loan without guarantors.
Guarantee agreement between a bank and an individual to secure obligations under a loan agreement (an agreement on opening a credit line)
2. RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1. The Guarantor is responsible to the Lender for the Borrower's fulfillment of the terms of the loan agreement (agreement on opening a credit line) dated "__" _________ ____, N ____ in the same amount as the Borrower, including payment of interest for using the loan and penalties, payment of fees for conducting operations on loan account and user fees open limit line of credit, reimbursement legal costs for the collection of debt and other expenses of the Lender caused by non-fulfillment or improper fulfillment of obligations under the loan agreement by the Borrower.
2.2. In case of non-fulfillment or improper fulfillment by the Borrower of obligations under the specified loan agreement, the Guarantor and the Borrower shall be jointly and severally liable to the Lender (option: subsidiarily) 1 .
2.3. The Guarantor agrees to the Lender's right to demand from both the Borrower and the Guarantor early return the entire amount of the loan, interest for the use of the loan, penalties and other payments under the loan agreement (agreement on the opening of a credit line) in cases provided for by the loan agreement (agreement on the opening of a credit line).
2.4. The Guarantor is obliged to notify the Lender within 3 (three) days of a change in the address of registration (propiska), actual place of residence, work, surname or name, and the occurrence of circumstances that could affect the fulfillment by the Guarantor of obligations under this Agreement.
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2.5. The Guarantor, who has fulfilled the obligation of the Borrower under the loan agreement (agreement on opening a credit line) dated "__" ______ ____, N ____, shall transfer all the rights of the Lender under this obligation.
2.6. The Guarantor is not entitled, without the consent of the Lender, to unilaterally refuse the obligations assumed under this Agreement or change its terms.
Any agreement between the Guarantor and the Borrower in relation to this Agreement shall not affect the obligations of the Guarantor to the Lender under this Agreement.
2.7. The Guarantor is not entitled to raise objections against the Lender's claims that the Borrower could submit (option: the right to raise objections against the Lender's claims that the Borrower could submit) 2 .
3. OTHER TERMS
3.1. This Agreement shall enter into force from the date of its signing by the Parties.
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3.2. The guarantee is terminated with the termination of all obligations of the Borrower under the loan agreement (agreement on opening a credit line) dated "__" _______ ____, N ____, as well as in other cases provided for by the legislation of the Russian Federation.
3.3. Any disputes and disagreements under this Agreement will be considered in the manner prescribed by the legislation of the Russian Federation.
3.4. This Agreement is made in 3 (three) copies, one for each of the Parties and one for the Borrower.
3.5. Any changes and additions to the Agreement are valid if made in writing and signed by duly authorized representatives of the Parties.
All notices and communications under the Agreement must be sent by the Parties to each other in writing.
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3.6. For all other issues not covered by this Agreement, the Parties shall be guided by the current legislation of the Russian Federation.
4. ADDRESSES, DETAILS AND SIGNATURES OF THE PARTIES:
1 According to paragraph 1 of Art. 363 of the Civil Code of the Russian Federation in case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the surety, the surety and the debtor shall be jointly and severally liable to the creditor, unless the law or surety agreement provides for subsidiary liability of the surety.
2 According to Art. 364 of the Civil Code of the Russian Federation, the guarantor has the right to raise objections against the creditor's claim that the debtor could submit, unless otherwise follows from the surety agreement.
Bank guarantee agreement
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The civil legislation of the Russian Federation establishes a number of cases where liability for non-performance or improper performance of a loan agreement, in part or in full, may be borne by a third party, and not just the debtor (Article 361 of the Civil Code of the Russian Federation). These persons are the guarantor and the guarantor, who perform the function of ensuring the timely repayment of the loan.
The surety agreement is concluded between the surety and the creditor for the main obligation. The legislation includes a requirement for without fail guarantee agreements in writing.
Failure to comply with the written form in accordance with Article 362 of the Civil Code of the Russian Federation entails the invalidity of the surety agreement.
When drawing up a guarantee agreement, creditors are required to indicate clearly for the fulfillment of which obligation the guarantee is given. The presence of a reference in the surety agreement to a specific loan agreement, for which the guarantor has undertaken to fulfill, also makes it possible to determine the scope of the guarantor's liability, and therefore, if this link is present, the surety agreement is concluded.
Example. Commercial Bank entered into a loan agreement with the enterprise, according to which he undertook to provide a loan for a certain period. The debtor, in securing the repayment of the loan, provided a letter of guarantee from the company, which was addressed to the creditor bank, in which the guarantor guaranteed the return of loans that were issued or should be issued to the debtor by the creditor bank before the deadline specified in the letter.
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There is no information in the guarantee agreement that a guarantee was given under any loan agreement and what is the amount of the loan to be transferred to the debtor. However, the bank informed the guarantor of its acceptance of the letter of guarantee.
When considering the bank's claims for the repayment of the loan, which were presented to the debtor, the arbitration court dismissed the claim, noting that the suretyship agreement does not contain data on the obligation to secure which the suretyship is given, it must be considered not concluded.
The guarantor is liable to the creditor in the same way as to the guarantor who has fulfilled his obligations, the debtor, to the extent that the guarantor has satisfied the creditor's claims. The guarantor has the right to raise objections against the claims of the creditor, which the debtor may present, unless otherwise arises from the guarantee agreement. The guarantor does not lose the right to these objections even if the debtor refuses them or acknowledges his debt (Article 364 of the Civil Code of the Russian Federation). He also has the right to demand from the debtor payment of interest on the amount paid to the creditor and compensation for other losses incurred in connection with the debtor's liability. All the rules mentioned above shall apply unless otherwise provided by law, other legal acts or by an agreement between the guarantor and the debtor.
The guarantee terminates when:
- expiration of the application period;
- changing the main obligation, which entails consequences unfavorable for him, without the consent of the guarantor;
- termination of the main obligation;
- refusal of the creditor to accept proper performance;
- transfer of debt on the main obligation without the consent of the guarantor.
Provisions of the Civil Code regarding suretyship
The Civil Code of the Russian Federation established that the term of the guarantee is directly determined by the text of the contract. When this period is not established by the agreement, the creditor has the right to bring a claim against the guarantor within a year from the date of the obligation's performance. When the term for the fulfillment of the main obligation is not indicated and the moment of demand cannot be determined or determined, the creditor has the right to bring a claim against the guarantor within two years from the date of conclusion of the surety agreement (paragraph 4 of Article 367 of the Civil Code of the Russian Federation). With the expiration of these terms, the obligations of the guarantor to creditors are terminated, while specified dates are restrictive and cannot be restored, even when they are missed for a good reason, therefore the rules for calculating deadlines limitation period(the ability to restore them, take a break, suspend, and so on) cannot be applied.
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An important clarification on the guarantee (form of guarantee) was given by the Supreme Arbitration Court of the Russian Federation in a letter dated 20.05.1993. When the surety relationship is not a formalized agreement signed by two parties, the evidence of the conclusion of this agreement may be a written (letter, telegram, telephone message) message to the surety from the creditor that he has accepted the text of the surety. In a situation where the creditor did not give such a written message about the reason for the guarantee, the proof of the conclusion of the guarantee agreement is a reference to this guarantee in the main agreement between the debtor and the creditor, and in the absence of this link, the contractual relations of the guarantee, in the opinion of the Supreme Arbitration Court of the Russian Federation, “should be considered unestablished."
The Supreme Arbitration Court of the Russian Federation includes, in particular, the conditions that make it possible to determine for the fulfillment of which main agreement the guarantee is given and the amount of the obligation secured by the guarantee. Without specifying this information, the surety agreement is not concluded.
Article 363 of the Civil Code indicates that there is a joint liability of the debtor and the guarantor to the creditor if the debtor fails to fulfill the obligation that is secured by the guarantee, when the contract or law does not provide for the guarantee of subsidized liability of the guarantor.
Bank guarantee agreement template
A guarantee agreement with a bank is an agreement on the obligations of the guarantor to be responsible to the creditor for the fulfillment of obligations by a third party.
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___ (full name of the loan recipient) ___ represented by ___ (position, full name) ___, acting __ on the basis of ___ (charter, power of attorney) ___, hereinafter referred to as ___ "Borrower", on the one hand, ____ ___ (full name of the bank) ___ represented by ___ (position , full name) ___, acting __ on the basis of ___ (charter, regulation, power of attorney) ___, hereinafter referred to as __ "the Bank", on the other hand, and the Non-profit organization "Moscow Regional Guarantee Fund for Assistance in Lending to Small and Medium-Sized Businesses" represented by the Executive Director, ___ (full name ) ___, acting on the basis of the charter, hereinafter referred to as the "Guarantor", with a third party, hereinafter referred to as the "Parties", have concluded this agreement as follows.
1. THE SUBJECT OF THE AGREEMENT
1.1. The Guarantor undertakes to be responsible to the Bank for the fulfillment by the Borrower of its obligations under the loan agreement dated "___" ________ 20__ N ___:
the amount of interest for using the loan: ________ percent per annum;
loan repayment term: "___" __________ 20__;
concluded between the Bank and the Borrower (hereinafter referred to as the loan agreement) in the manner and on the terms specified in this agreement.
1.2. The liability of the Guarantor to the Bank under this agreement is subsidiary and is limited by the limit of liability in the amount of _______________ (________________________) rubles __ kopecks. At the same time, the liability of the Guarantor to the Bank cannot exceed ________ percent of the amount of obligations not fulfilled by the Borrower under the loan agreement (not returned in accordance with the procedure and term of the loan amount established by the loan agreement) at the time of the occurrence of overdue debt on the loan secured by the surety of the Guarantor.
1.3. Under this agreement, the Guarantor is not liable to the Bank for the fulfillment by the Borrower of obligations under the loan agreement in terms of paying interest on borrowed funds (Article 395 of the Civil Code of the Russian Federation), penalties (fines, penalties), reimbursement of legal costs for debt collection and other losses caused by non-performance (improper performance) by the Borrower of its obligations to the Bank under the loan agreement.
1.4. Obligations of the Borrower to:
payment of interest for the use of credit;
timely and full payment of commissions to the Bank for the granted loan;
timely and full payment of the penalty for overdue debt on the granted loan, payment of the penalty for interest and (or) commissions on the loan accrued in accordance with the loan agreement;
payment of the Bank's expenses incurred by it in connection with the execution of the loan agreement -
are provided by the Borrower independently and (or) by third parties (except for the Guarantor) on the basis of agreements concluded between them and the Bank separately.
2. REMUNERATION OF THE GUARANTOR
2.1. For the provision of the guarantee, the Borrower undertakes to pay the Guarantor a fee in the amount of _______________ (_____________________) rubles ____ kopecks, VAT exempt.
2.2. The remuneration to the Guarantor is paid by the Borrower at the expense of own funds at a time no later than 3 (three) working days from the date of entry into force of this agreement and is not subject to return.
2.3. The Borrower's obligation to pay interest is considered fulfilled at the moment the funds are received on the Guarantor's settlement account.
3. ENTRY INTO FORCE OF THE AGREEMENT
3.1. This Agreement shall enter into force upon signing by the Parties.
3.2. In case of non-payment or incomplete payment by the Borrower of the remuneration provided for in clause 2.1 of this agreement within the period established by this agreement (clause 2.2 of this agreement), the Guarantor has the right to unilaterally terminate this agreement by notifying the Parties thereof within 3 (three) working days before the date of termination .
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. The guarantor is obliged:
4.1.1. Bear subsidiary responsibility for the fulfillment by the Borrower of obligations under the loan agreement concluded with the Bank, in terms of the return of the loan amount actually received by the Borrower (principal debt) within the limits and on the terms specified in paragraph 1.2 of this agreement.
4.1.2. Notify the Bank of the receipt of remuneration from the Borrower under this agreement.
4.1.3. In case of making changes to the constituent (registration) documents of the Guarantor, provide the Bank with copies of the relevant documents within 3 (three) working days from the date of state registration such changes.
4.1.4. Immediately notify the Bank in writing of any significant fact (event, action) that, in the opinion of the Guarantor, may significantly worsen its financial condition, affect his solvency, as well as report on the measures taken by him to eliminate the consequences of these events and actions.
4.2. The guarantor has the right:
4.2.1. Raise objections against the Bank's claims that the Borrower could provide, even if the Borrower acknowledges the debt and (or) the Borrower refuses to raise its objections to the Bank.
4.2.2. Require from the Borrower and the Bank no later than 5 (five) business days from the date of receipt of the Guarantor's request to provide information on the fulfillment by the Borrower of obligations under the loan agreement, including violations of the terms of the concluded loan agreement.
4.2.3. Require the Bank (in case of fulfillment of obligations for the Borrower under the loan agreement) to provide documents and information certifying the rights of the Bank's claims to the Borrower, and the transfer of rights that ensure these requirements.
4.2.4. Require from the Borrower (in case of fulfillment of obligations for the Borrower under the loan agreement under this agreement) payment of interest on the amount paid to the Bank and compensation for other losses incurred in connection with the responsibility for the Borrower.
4.2.5. Suspend the transfer of funds in the manner prescribed by clause 5.7 of this agreement, in case of non-compliance (improper compliance) by the Bank with the requirements of clauses 5.2-5.5 of this agreement until the Bank duly fulfills the requirements of clauses 5.2-5.5 of this agreement.
4.3. The borrower is obliged:
4.3.1. Pay the Guarantor remuneration for the provision of a guarantee in the manner, terms and amount established by this agreement.
4.3.2. Not later than 1 (one) business day following the day of violation of the terms of the loan agreement, notify the Guarantor in writing of all violations of the loan agreement committed by him, including the delay in payment (return) of the principal amount (loan amount) and interest for use loan, as well as all other circumstances affecting the performance by the Borrower of its obligations under the loan agreement.
4.3.3. In the event that the Bank claims to fulfill obligations under the loan agreement, take all reasonable and available measures in the current situation for the proper fulfillment of its obligations.
4.3.4. Reimburse the Guarantor (in the event that the Guarantor fulfills obligations for the Borrower under the loan agreement under this agreement) all the funds paid to the Bank, as well as reimburse other losses incurred by the Guarantor in connection with the responsibility for the Borrower.
4.3.5. Upon receipt of a written request from the Guarantor to provide information on the fulfillment of obligations under the loan agreement, including violations of the terms of the concluded loan agreement, no later than 5 (five) working days from the date of receipt of such a request, provide the Guarantor in writing with the information specified in the request information.
4.3.6. In case of change of payment details and (or) location within 3 (three) business days, inform the Bank and the Guarantor about it in writing.
4.3.7. Immediately notify the Guarantor in writing of the fulfillment of the obligation under the loan agreement secured by this guarantee.
4.3.8. Annually during the term of this agreement, including for the year in which the guarantee was provided, no later than April 1 (first) of the year following the reporting year, provide the Guarantor with information on paper on the activities of the Borrower (according to the reporting form in accordance with with sections 1 and 2 of MP forms (for microenterprises), PM (for small enterprises), P-1 (for medium-sized enterprises), forms 1-IP (for individual entrepreneurs), approved by the order of Rosstat of Russia dated September 23, 2008 N 235).
Failure to submit or violation of the deadline for submitting the information provided for in clause 4.3.8 of this agreement may be the basis for refusing to provide the Borrower with a guarantee in the future.
4.4. The borrower has the right:
4.4.1. In case of prolongation of the loan repayment period and (or) interest for using the loan against the originally established ones, apply in writing to the Guarantor with a request to extend the term of this agreement.
4.5.1. Not later than 3 (three) business days from the date of entry into force of this agreement, provide the Guarantor with a copy of the loan agreement.
4.5.2. When changing the terms of the loan agreement, immediately, but in any case no later than 3 (three) business days following the day the changes were made to the loan agreement, notify the Guarantor in writing of these changes.
When making amendments to the loan agreement that increase the liability of the Guarantor or have other adverse consequences for the Guarantor, the Bank is obliged to obtain from the Guarantor a prior written consent to making these changes.
4.5.3. Upon receipt of a written request from the Guarantor to provide information on the fulfillment of obligations under the loan agreement, including committed violations of the terms of the concluded loan agreement, no later than 3 (three) working days from the date of its receipt, provide the Guarantor in writing with the information specified in the request.
4.5.4. Not later than 5 (five) working days notify the Guarantor in writing of the fulfillment by the Borrower of its obligations under the loan agreement in full (including in case of early fulfillment of obligations).
4.5.5. Provide no later than 5 (five) working days from the date of receipt of the request from the Guarantor (in case of fulfillment of obligations for the Borrower under the loan agreement) documents and information certifying the Bank's rights of claim against the Borrower, and transfer the rights that ensure these requirements.
The documents of the Bank shall be handed over to the Guarantor in originals, and if it is impossible to do so, in the form of notarized copies.
The transfer of documents from the Bank to the Guarantor is carried out according to the act of acceptance and transfer of documents.
4.5.6. Provide the Guarantor with copies of documents confirming that the Borrower has its own loan collateral no later than 3 (three) working days from the date of entry into force of this agreement.
4.6. The bank has the right:
4.6.1. In case of non-fulfillment (improper fulfillment) by the Borrower of its obligations under the loan agreement, submit a claim to the Guarantor to fulfill obligations for the Borrower in the manner and within the time limits established by this agreement.
4.6.2. Provide the Guarantor with documents and information regarding the Borrower, as provided for by the terms of this agreement.
5. PROCEDURE FOR THE PERFORMANCE OF THE CONTRACT
5.1. Within a period of not more than 5 (five) business days from the date of non-performance (improper performance) by the Borrower of obligations under the loan agreement to repay the principal amount (loan amount) and (or) pay interest for using the loan, the Bank shall notify the Guarantor in writing of this, indicating the type and amount of obligations not fulfilled by the Borrower and the calculation of the Borrower's debt to the Bank.
5.2. Within a period not exceeding 10 (ten) business days from the date of non-performance (improper performance) by the Borrower of obligations under the loan agreement to repay the principal amount (loan amount) and (or) pay interest for using the loan, the Bank submits a written demand (claim) to the Borrower, which indicates: the amount of existing debt on the loan and accrued interest for using the loan, the numbers of the Bank's accounts to which funds are to be credited, aimed at repaying the existing debt on the loan and accrued interest, as well as the deadline for fulfilling the Bank's requirements with an extract from the loan account attached Borrower.
At the same time, the Bank sends a copy of the above requirement to the Guarantor.
5.3. The Borrower takes all reasonable and available measures in the current situation to properly fulfill its obligations within the period specified in the Bank's request (claim).
5.4. Within a period not earlier than within 90 (ninety) calendar days from the date of non-performance (improper performance) by the Borrower of its obligations under the loan agreement, the Bank takes all reasonable and available measures in the current situation (including direct debiting of funds from the Borrower's account, foreclosure for collateral, filing a claim under a bank guarantee, guarantees of third parties (except for the Guarantor), etc.) in order to receive from the Borrower the unreturned amount of the principal debt (loan amount), pay interest on the use of the loan and fulfill other obligations stipulated by the loan contract.
5.5. Upon the expiration of the deadlines and the completion of the procedures specified in paragraphs 5.2-5.4 of this agreement, if in the manner prescribed by the loan agreement, the amount of the principal debt was not returned to the Bank, the Bank makes a claim (claim) against the Guarantor, which indicates:
details of the guarantee agreement;
details of the loan agreement;
the amount of claims, broken down by the amount of the principal debt (amount of credit, loan) and interest on it;
calculation of the Guarantor's liability under this agreement based on the actual scope of the Guarantor's liability from the amount of obligations not fulfilled by the Borrower under the loan agreement (not returned in the manner and terms established by the loan agreement, the loan amount and interest on it);
the numbers of the Bank's accounts to which the funds are to be credited, indicating the payment details and the purpose of the payment(s) for each amount claimed;
term for satisfaction of the Bank's claim.
The demand (claim) must be signed by an authorized person and affixed with the seal of the Bank.
The following shall be attached to the requirement specified in this paragraph:
a copy of the document confirming the authority of the person to sign the demand (claim), certified by a notary;
calculation of the debt of the Borrower and calculation of the liability of the Guarantor;
account statements confirming the debt of the Borrower to the Bank;
a copy of the Bank's demand (claim) sent to the Borrower in the manner prescribed by paragraph 5.2 of this agreement;
statement of the work done (diary of events) with copies of documents confirming the measures taken and the work carried out by the Bank in relation to the Borrower (including direct debiting of funds from the Borrower's account, collection of collateral, filing a claim under a bank guarantee, guarantees of third parties (except for the Guarantor ) and other measures) in order to obtain from the Borrower the outstanding loan amount, pay interest for the use of the loan and fulfill other obligations stipulated by the loan agreement.
All documents submitted with the Bank's claim (claim) against the Guarantor must be signed by an authorized person and sealed.
5.6. The Guarantor, no later than 3 (three) business days from the date of receipt of the Bank's demand (claim), but in any case before the Bank's demand is satisfied, notifies the Borrower in writing of the Bank's filing of the said demand (claim).
5.7. The Guarantor, if there are no objections and the Bank complies with the requirements of clauses 5.2-5.5 of this Agreement, undertakes to transfer funds to the accounts specified by the Bank within the period specified in the Bank's request, or no later than 10 (ten) business days from the date of receipt of the Bank's request.
If there are objections, the Guarantor shall send a letter to the Bank within 5 (five) business days indicating all the objections.
In case of non-compliance (improper compliance) by the Bank with the requirements of clauses 5.2-5.5 of this agreement, the period specified in clause 5.7 of this agreement is calculated from the moment the Bank eliminates the deficiencies identified by the Guarantor.
5.8. The Guarantor, who has fulfilled the obligations under this agreement (obligations for the Borrower under the loan agreement), shall transfer the rights of claim to the same extent in which the Guarantor actually satisfied the requirements of the Bank.
5.9. The obligations of the Guarantor shall be considered duly fulfilled from the date the Guarantor submits to the bank an instruction to transfer funds from the account if there is sufficient cash balance on it as of the date of payment to the Bank in favor of which the payment is made.
6. DURATION OF THE GUARANTEE
6.1. The term of validity of the guarantee under this agreement shall terminate after 120 (one hundred and twenty) calendar days, starting from the day following the day specified in the loan agreement secured by this guarantee as the final term for repaying the loan (the final term for fulfilling the obligation secured by this guarantee), namely "___" ___________ 20__
6.2. The validity of the guarantee under this agreement is terminated in the following cases:
6.2.1. Termination of the obligation secured by the guarantee of the Borrower under the loan agreement with the Bank (in case of proper performance by the Borrower of its obligations under the loan agreement), as well as in the event of a change in this obligation, entailing an increase in liability or other adverse consequences for the Guarantor, without the consent of the Guarantor.
6.2.2. In case the Bank refuses to properly execute the loan agreement proposed by the Borrower or the Guarantor.
6.2.3. In case of transfer of the debt to another (other than the Borrower) person under a secured obligation (loan agreement), unless the Guarantor has given the Bank a written consent to be responsible for the new Borrower.
6.2.4. In case of acceptance by the Bank of compensation.
6.2.5. In other cases provided by law.
6.3. Termination of the guarantee under this agreement entails the termination of the obligations of the Guarantor under this agreement.
7. ORDER OF INFORMATION EXCHANGE
7.1. The Borrower consents to the provision by the Bank of information about the Borrower (documents and other information) to the Guarantor in accordance with the terms of this agreement.
7.2. The Borrower consents to the use of information about him for the purposes and to the extent provided for in Article 8 federal law dated July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses in the Russian Federation".
8. DISPUTES RESOLUTION
8.1. All disputes and disagreements that may arise during the execution of this agreement shall be resolved by the Parties through negotiations.
8.2. If it is impossible to resolve disagreements through negotiations, such disagreements are subject to consideration in Arbitration Court Moscow region.
9. FINAL PROVISIONS
9.1. The persons signing this agreement guarantee that they have the authority to sign it and that there are no restrictions known to them on its conclusion by virtue of the provisions of the constituent documents, the power of attorney and the current legislation.
9.2. Any amendments to this Agreement are valid provided that they are made in writing, signed by authorized representatives of the Parties and affixed with seals of the Parties.
9.3. In case of non-compliance with the requirements of this agreement on notifying the Parties about changes to the constituent documents, about changing the head, changing the location (address), payment (banking) details, changing contact information, the uninformed (untimely informed) Party is not responsible for Negative consequences using outdated information.
9.4. This Agreement is made in triplicate, having equal legal force, one copy for each of the Parties.
9.5. In all other respects that are not regulated by this agreement, the Parties are guided by the current legislation of the Russian Federation.