1. TERMS AND DEFINITIONS
1.1. Investments– own, borrowed and/or attracted funds, securities, other property invested by the Investor for the purpose of making a profit. In accordance with this Agreement, investments are means of targeted financing (paragraph 10, sub-clause 14, clause 1, article 251 of the Tax Code of the Russian Federation).
1.2. Investment activity – making investments and carrying out practical actions in order to make a profit and implement the project.
1.3. Project– the necessary design documentation developed in accordance with the legislation of the Russian Federation and standards (norms and rules) approved in accordance with the established procedure, as well as a description of the organizational and technical measures for the creation of an investment object using investments in the form of work.
1.4. Result of investment activity (object)– a cultural center being created at the address: __________________, the construction of which will be carried out in accordance with the Project.
1.5. Contractors– individuals and legal entities who carry out design and construction work under construction contracts concluded with the Customer-Developer.
1.6. Works– the entire scope of practical work on the construction of the result of investment activity, to be performed by the Customer-Developer in accordance with the terms of this Agreement.
1.7. Land plot– plot with a total area of ______ sq. m, cadastral No.____, located at the address: ________________, leased to the Customer-Developer to create the result of investment activity on the basis of ______________ for the period of development of the initial permits, design documentation and construction of the result of investment activity.
1.8. Project documentation– initial permits, technical documentation, technical conditions and passports for materials, equipment, structures and components, estimates, as well as other documentation not directly mentioned above, but necessary for the performance of work and technical operation of the result of investment activity.
1.9. Total area of the result of investment activity– the sum of areas (useful, common use, engineering) of all floors (including technical, basement and attic), measured along the internal surfaces of walls and built-in and attached premises.
2. SUBJECT OF THE AGREEMENT
2.1. Under this Agreement, the Customer-Developer undertakes to perform work and take all necessary actions to implement the Project to create the Result of investment activity (object) on a land plot, and the Investor undertakes to transfer funds to the Customer-Developer in the amount established by this Agreement for the implementation of the project and to pay Customer-Developer remuneration. Upon completion of the investment project, the Customer-Developer transfers the result of investment activities to the Investor.
2.2. Investments received from the Investor will be used to create the result of investment activities, perform all necessary work and other actions required for the implementation of the project, and monitor the implementation of work.
2.3. This Agreement contains elements of various agreements provided for by the Civil Code of the Russian Federation (mixed agreement). The rules of the Civil Code of the Russian Federation on construction contracts apply to the relations of the Parties regarding the performance of work by the Customer-Developer under this Agreement, unless otherwise provided by this Agreement. The rules of the Civil Code of the Russian Federation on agency agreements and commission agreements apply to the relations of the Parties regarding the performance of legal and other actions by the Customer-Developer on the instructions given by the Investor in this Agreement, unless otherwise provided by this Agreement. In this case, the Customer-Developer acts on its own behalf, but at the expense of the Investor.
3. SETTLEMENT PROCEDURE BETWEEN THE PARTIES
3.1. The amount of investment under this Agreement is rubles.
3.2. Investments are directed to the implementation of the Project within the time frame established by the Financing Schedule, which is an integral part of this Agreement, by transferring funds to the settlement account of the Customer-Developer specified in Section 11 of this Agreement.
3.3. Investments provided by the Investor for the implementation of the Project are considered by the Parties as targeted financing funds allocated exclusively for the implementation of the Project.
3.4. The amount of investment established by clause 3.1 of this Agreement may be increased in the following cases: .
3.5. An increase in the size of investments is made on the basis of an additional agreement to this Agreement, signed by the Parties.
3.6. For the performance of work by the Customer-Developer and the fulfillment of instructions under this Agreement, the Investor pays the Customer-Developer a remuneration in the amount of rubles.
3.7. The remuneration established by clause 3.6 of this Agreement is paid in accordance with the Remuneration Payment Schedule, which is an integral part of this Agreement, by transferring the remuneration amount to the settlement account of the Customer-Developer specified in Section 11 of this Agreement.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. The investor is obliged:
4.1.1. Provide financing under this Agreement in full and in the manner established by this Agreement, as well as pay remuneration to the Customer-Developer in the amount, manner and on the terms established by this Agreement.
4.1.2. Within one day after signing this Agreement, transfer to the Customer-Developer the Project approved by the Investor, consisting of: .
4.1.3. If necessary, take part in coordination with authorized government bodies, approval and receipt of permits and other documentation necessary for carrying out work in accordance with the Agreement.
4.1.4. Appoint representatives to participate in the work of the commission for the acceptance of the completed construction project.
4.1.5. Accept the object from the Customer-Developer under this Agreement by signing the acceptance certificate.
4.1.6. From the moment the object is accepted, bear the burden of its maintenance, including the risk of accidental death, as well as other responsibilities provided for by the current legislation of the Russian Federation.
4.1.7. Properly fulfill your other obligations provided for in this Agreement.
4.2. The investor has the right:
4.2.1. Monitor the compliance of the volume and quality of work performed by the Contractor to create the result of investment activities. When monitoring the progress of work, the Investor or his authorized person must move around the construction site, accompanied by an authorized representative of the Customer-Developer, while strictly observing safety regulations.
4.2.2. Check at any time the progress and quality of work, the compliance of the materials used, without interfering with the operational and economic activities of other subjects of investment activity.
4.2.3. With the consent of the Customer-Developer, transfer its rights and obligations under this Agreement to a third party, subject to the latter’s acceptance of the duties, conditions and obligations under this Agreement. Partial and/or complete transfer of rights and obligations is formalized by an appropriate agreement.
4.3. The Customer-Developer is obliged:
4.3.1. Using the investments made by the Investor, ensure the implementation of the Project, including:
- ensure preparation of the construction site;
- organize the execution of work by Contractors, provide the construction process with materials and equipment;
- ensure proper execution of the necessary construction and installation works by the involved Contractors;
- manage construction, monitor its progress in strict accordance with the Project and the terms of this Agreement, in accordance with SNiP, technical regulations, and other rules for construction and installation work;
- make payment for the work of the Contractors and payment for other necessary work and services;
- coordinate the activities of design, construction and installation, specialized and other organizations.
- construction work (general construction work below the “0” mark, general construction work above the “0” mark);
- Finishing work;
- arrangement of internal communications networks: heating, ventilation, control unit, plumbing work below the “0” mark, plumbing work above the “0” mark, power supply;
- installation of external communication networks: heating networks, cold and hot water supply networks;
- arrangement of access roads to the facility, landscaping of the territory.
4.3.2. Provide the Investor with access to the construction site to monitor the compliance of the volume and quality of work performed by the Contractors, accompanied by a representative of the Customer-Developer. To promptly notify the Investor of the occurrence of circumstances beyond the control of the Customer-Developer that make it impossible for the Customer-Developer to properly (high-quality and timely) fulfill its obligations under this Agreement.
4.3.3. Ensure that the facility is put into operation and handed over to the acceptance committee.
4.3.4. After putting the object into operation, transfer it to the Investor according to the acceptance certificate.
4.3.5. During the transfer of the result of investment activity, ensure that, at the request of the administrative and technical inspection and other authorized organizations, the deficiencies and defects specified in the defect report are eliminated.
4.3.6. Provide the Investor with the necessary documents (copies) available to the Customer-Developer for state registration of ownership of the result of investment activity.
4.3.7. Carry out investment activities in accordance with the current legislation of the Russian Federation, fulfill the requirements imposed by state bodies and local governments that do not contradict the norms of the legislation of the Russian Federation.
4.3.8. Exercise control over the procedure and volume of investment by the Investor in accordance with the terms of this Agreement. Use funds received from the Investor for their intended purpose.
4.3.9. Ensure that the Investor is provided with a report on the implementation of this Agreement on a quarterly basis, no later than the date of the month following the reporting quarter.
4.3.10. Fulfill other duties assigned to him by this Agreement.
4.4. The Customer-Developer has the right:
4.4.1. Require the Investor to fulfill its obligations under this Agreement.
4.4.2. Determine, in accordance with this Agreement and the project, the volumes and specific areas of use of investments.
4.4.3. Engage Contractors to perform work.
4.4.4. Ensure control over the compliance of the volume and quality of work performed.
4.4.5. With the consent of the Investor, transfer his rights and obligations under this Agreement to third parties.
5. PROJECT IMPLEMENTATION TIMELINES AND PROCEDURE FOR TRANSFERING THE RESULTS OF INVESTMENT ACTIVITIES (OBJECT) TO THE INVESTOR
5.1. The duration of the Project is and is calculated from the date of transfer by the Investor to the Customer-Developer of the Project (clause 4.1.2 of this Agreement). If necessary, this period may be extended by the Parties on the basis of an additional agreement to this Agreement signed by the Parties. The timing of certain types of work on the construction of the Facility, the timing of completion of certain stages under this Agreement are established in the Work Schedule.
5.2. Upon completion of the Project and when the object is ready for transfer, the Customer-Developer sends a corresponding notification to the Investor. The transfer of the result of investment activity (object) to the Investor is carried out according to the act of acceptance and transfer of the object. The act is signed by both Parties or their authorized representatives and certifies that the Parties have fulfilled their obligations under this Agreement and that the Parties have no mutual claims of a property or non-property nature.
5.3. The ownership of the object is formalized by the Investor independently after the transfer of the result of investment activity to him.
5.4. After transferring the property to the Investor, the Parties will take all necessary measures to formalize the Investor’s rights to the land plot.
5.5. Evidence of the quality of the result of investment activity transferred to the Investor, its compliance with construction and technical norms and rules, the Project is the signing by the acceptance committee of the acceptance certificate for the completed construction result of investment activity into operation.
5.6. When accepting the result of investment activity, the Investor is obliged to declare all the shortcomings that can be established during the usual method of acceptance. The warranty period under this Agreement is from the moment the facility is accepted for operation under the act (clause 5.5 of this Agreement).
5.7. If deficiencies are discovered within the period established in clause 5.6 of this Agreement, the Investor has the right to contact the Customer-Developer with a request to eliminate them. Elimination of deficiencies is carried out within a period of time after receiving a written application from the Investor.
6. RESPONSIBILITY OF THE PARTIES AND PROCEDURE FOR SETTLEMENT OF DISPUTES
6.1. The parties are responsible for failure to fulfill or improper fulfillment of their obligations under this Agreement in accordance with the current legislation of the Russian Federation.
6.2. If the Investor violates the deadlines for making investments under this Agreement established by the Financing Schedule, the Customer-Developer has the right to increase the deadline for fulfilling its obligations in proportion to the period of delay in fulfilling its obligations by the Investor.
6.3. The risk of consequences of damage or destruction of the result of investment activity passes from the Customer-Developer to the Investor upon signing the acceptance certificate of the object under this Agreement (clause 5.2 of this Agreement).
6.4. The Parties will strive to resolve all disputes and disagreements out of court.
6.5. If the Parties fail to reach an agreement, the dispute is referred to the court in accordance with the current legislation of the Russian Federation.
6.6. To ensure the fulfillment of its obligations, the Customer-Developer provides the Investor with...
6.7. The Customer-Developer is responsible for non-compliance of the object with the Project, building codes and regulations, including those identified after acceptance of the object, during the warranty period.
6.8. In case of non-fulfillment or improper fulfillment by the Customer-Developer of its obligations under this Agreement, the Investor has the right to present a demand to the Customer-Developer.
7. PRIVACY
7.1. Any information about the financial position of the Parties and the terms of this Agreement, as well as agreements with third parties involved in the implementation of the Project, is considered confidential and is not subject to disclosure. Other confidentiality conditions may be established at the request of any of the Parties.
8. RELEASE OF LIABILITY (FORCE MAJEURE)
8.1. The parties are released from liability for partial or complete failure to fulfill obligations under this Agreement if this failure was a consequence of force majeure circumstances (force majeure), i.e. extraordinary and insurmountable circumstances under given conditions, in particular floods, earthquakes, other natural disasters or any other natural phenomena, epidemics, terrorist acts, military operations, as well as changes in current legislation, the adoption of regulations of local authorities that make it impossible fulfillment by the Parties of their obligations. Proper evidence of the existence of the above-mentioned force majeure circumstances and their duration will be certificates issued by the competent authorities.
8.2. In case of changes in legislative and regulatory acts that worsen the situation of the Parties in comparison with their condition on the date of conclusion of this Agreement and lead to additional costs of time and money, the agreed terms for completing the work are increased in proportion to this time. The terms and cost of the Agreement in this case are specified in the additional agreement.
8.3. The period for fulfilling obligations under this Agreement increases in proportion to the time during which such circumstances and their consequences existed.
8.4. If, due to the circumstances specified in clause 8.1 of this Agreement, the delay in fulfilling obligations under this Agreement is more than , any of the Parties has the right to refuse the unfulfilled part of the Agreement. In this case, neither Party has the right to demand compensation for losses.
9. VALIDITY AND CHANGE (TERMINATION) OF THE AGREEMENT
9.1. This Agreement comes into force on the date of its signing by the Parties and terminates after the Parties have fulfilled all obligations under it and completed mutual settlements between the Parties.
9.2. The terms of this Agreement may be changed by agreement of the Parties. All changes, additions and agreements to this Agreement are an integral part of this Agreement if made in writing and signed by the Parties.
9.3. This Agreement may be terminated by agreement of the Parties, subject to agreement on mutual settlements at the time of termination, as well as in other cases provided for by the legislation of the Russian Federation.
9.4. In case of conservation of an unfinished construction facility, the Parties shall extend the validity of this Agreement or determine the conditions for its termination.
10. FINAL PROVISIONS
10.1. This Agreement is drawn up in three copies having equal legal force, one copy for each Party and one for the body that registers rights to real estate.
10.2. The notices, notices or other messages provided for in this Agreement that are important for the relations of the Parties must be delivered in person or sent by the Parties to each other by registered letters or telegrams with return receipt requested at the addresses specified in this Agreement as the legal and postal addresses of the Parties.
10.3. Registration of ownership of the object is not included in the subject of this Agreement.
10.4. In the event of a change in telephone number, place of registration, postal address, or other details, the Parties are obliged to immediately send each other notifications of these changes in the manner prescribed above. All information and correspondence sent to the telephone number and address specified in this Agreement are considered received by the Party that changed its address and telephone number and did not notify about it, which bears the risks of all adverse consequences.
10.5. Simultaneously with the signing of the Agreement, the Parties appoint their authorized representatives under the Agreement, defining their competence, and notify each other about this.
10.6. After the conclusion of this Agreement, all previous agreements between the Parties - both written and oral - are deemed to have lost their force.
10.7. In everything else that is not provided for in this Agreement, the Parties are guided by the current legislation of the Russian Federation.
11. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES
Investor
Customer-Developer Legal address: Postal address: INN: KPP: Bank: Cash/account: Correspondent/account: BIC:
12. SIGNATURES OF THE PARTIES
Investor_________________
Customer-Developer _________________
The Civil Code of the Russian Federation provides for many different agreements that can be concluded between subjects of the state. One of the articles of the document regulates free contractual relations related to the mutual desire of the parties.
What it is
An investment loan is issued on the basis of an agreement. The parties to the agreement are the investor (a person who invests money for the purpose of making a profit), the investment customer (a person involved in placing investments in certain projects) and the contractor (a person involved in the implementation of the developed project).
Thus, when concluding an investment loan agreement, three parties are involved, each of which has its own obligations to the other parties.
In most cases, an investment loan is provided for the construction of a facility, for example, a residential building or industrial premises.
The investment agreement must be accompanied by a number of documents on the basis of which the project is supposed to be implemented.
Such documents include:
- detailed project plan;
- permission to engage in a certain type of activity;
- accompanying documents, for example, a certificate of ownership of a land plot.
Like any loan agreement, an investment loan involves the transfer of funds for certain purposes, that is, it is a target agreement.
The loan agreement provides for remuneration for the use of funds, which may be charged:
- in cash (in the form of interest);
- in kind (for example, if a loan is issued for the construction of a residential building, then the investor can receive several apartments as personal property as a reward).
When concluding an investment agreement, the order and timing of loan repayment plays an important role. In most cases, an addition to the agreement is a payment schedule, which the borrower must strictly adhere to.
An investment loan agreement may also regulate penalties in case of violation of contractual obligations by one of the parties.
Investment loan agreement with an individual
Most often there are situations when individuals act as investors. For example, a person invests his funds in the construction of new housing.
Typically, such an agreement is concluded at the initial stage of construction. The company in which private individuals invest with the money invested begins to carry out work.
It is very important that any individual, before concluding an investment loan agreement, receives qualified advice on all points of the proposed agreement.
I also checked the fundamental documents of the developer company:
- a license to carry out this type of activity;
- building permit;
- documents that confirm the company’s ownership of the land plot proposed for development, and so on.
In addition to the listed documents, it is advisable to check the company’s previous activities for any unfair attitude towards the construction of facilities.
On the Internet you can find many sites and forums that contain complete information about the activities of the enterprise.
If the documents listed above are missing or for some reason the company does not want to provide them, then most likely the company is a fraudster. It is not recommended to enter into an investment loan agreement with such an organization.
When concluding an investment loan agreement, an individual should pay attention to the following factors:
- The company’s details must fully comply with the fundamental documents;
- It is advisable to indicate in the contract the exact date for completion of construction and termination of the document. Only in this case will it be possible to demand the return of funds from the company if it does not fulfill its obligations;
- contract price. The document must contain detailed information about the property being received, ownership of which is transferred to the investor after completion of construction;
Less commonly, there are situations where a company invests in an individual, such as an individual developing a substance or drug that the company needs to improve its operations.
In this case, investment loans are issued to individuals. An agreement of this type of loan will differ slightly from the standard form of the document.
The subject of the agreement will be the development of a project directly related to the activities of the individual. There may be no third party to the contract. The remaining fundamental facts of the document will remain unchanged.
Where can I get it
In accordance with the laws of the Russian Federation, an investment loan can be obtained:
- from the state. Currently, several federal programs have been developed to subsidize and invest in small businesses and private entrepreneurs;
Naturally, strict requirements are put forward to the customer in developing a detailed plan for the upcoming project or business. Age restrictions may apply.
- in a credit institution (bank). Some banks have their own programs and funds intended for investment. To receive funds, you will need to collect a large number of documents confirming the performance of the company and the benefits of the project being implemented. Most credit institutions prefer to cooperate with companies that are already operating stably. But getting an investment loan for start-up organizations is quite difficult.
An additional priority in obtaining the required amount of money may be the presence of a bank account for the borrowing company.
- in an investment company. Some people with sufficient free funds join together in companies. The purpose of such an organization is to invest. Qualified employees of the company thoroughly check the proposed projects and invest in the most promising ones. Similar organizations can be found in any city. The Internet is an assistant in searching;
- in any organization directly interested in the implementation of the proposed project. You can get an investment loan not only from credit or specialized organizations. An investor can be absolutely any firm or company;
The main thing for the customer is to convince the organization’s management of the need to invest in a certain project and offer contract terms that are beneficial for both parties.
- from a private person. In addition to organizations, investors can also be any individuals. You can search for an interested investor among your loved ones or acquaintances, as well as on specialized websites on the Internet;
When choosing an investor, one must base it on the honesty and integrity of the person or organization. Most often, money is invested in interesting and economically profitable projects. This is due to the main purpose of investment activity, which is to make a profit.
How to draw up and conclude a contract correctly
In order to conclude an investment loan agreement on optimal terms, specialist advice may be required. The average person often has many questions that are almost impossible to answer on their own.
When concluding an investment loan agreement, it is important:
- know all the parties entering into the contract and check the legality of the activities of each of them;
- clearly understand what investment funds will be spent on;
- stipulate in advance what the interest rate will be when investing, and how and for what period the investor will receive income from the invested money;
- develop a project plan as accurately as possible and strictly follow its points;
- develop measures in advance to ensure the fulfillment of the obligations of each party. Provide for a set of penalties that will be required in case of non-fulfillment or poor performance of undertaken obligations.
It is advisable to have an investment loan agreement, like other similar documents, certified by a notary. Any additions to an existing agreement can be made solely at the joint request of the parties and in the form of additional agreements.
Taxation
The Tax Code of the Russian Federation provides for some benefits related to investment activities on the territory of the state.
In addition to VAT, organizations receiving investment loans can reduce the amount of income tax by the amount of the loan received. That is, investment loans are not taken into account when calculating income tax.
Unlike organizations receiving investments, investing firms or private investors are engaged in generating profits, which are taxed as income. That is, the investor will have to pay income tax if he receives income from his activities.
Sample investment loan agreement
A standard investment loan agreement concluded between three parties is as follows:
The legislative framework
The main document regulating contractual relations is the Civil Code of the Russian Federation.
This document does not contain the concept of “investment agreement”, therefore all the nuances of concluding such an agreement are described in the document adopted on February 25, 1999. Additionally, and can be used.
However, an investment agreement in accordance with can be classified as a mixed agreement, which can be freely concluded by any state entity.
Another document regulating relations within the framework of the concluded agreement may be adopted on November 28, 2011. This document regulates the relationship between investors if the latter are not one, but several different individuals or organizations.
Investing is an integral part of modern business. With the right investment, you can earn certain income.
All processes related to investment activities are regulated by Russian legislation and an individual investment loan agreement.
Video: loan agreement
In Russian legal practice there is the concept of an investment agreement. Particularly interesting is the fact that, despite the widespread prevalence of this type of agreement, it is not officially enshrined in legislative sources. How are such agreements drawn up in practice?
Definition
According to a common interpretation, an investment agreement is an agreement, usually of a commercial nature, that defines a mechanism for the transfer of funds or material assets by a person or group of entities at the disposal of an enterprise with the aim of subsequent return of investments in the form of an interest premium or an asset endowed with a high value. By signing this type of contract, the investor transfers finances or property in favor of another person, most often for ownership or operational management.
Thus, the main purpose for which an agreement on investment activity is concluded is the subsequent receipt of commercially tangible benefits by the investor of funds or material assets. At the same time, the investor’s source of income is the activities of the organization in which he invested. The agreement in question, as a rule, assumes that the relevant activities of the recipient of the funds are of an entrepreneurial nature. Although the legal nature of such agreements can be very different.
Investments in construction
Investment agreements in construction have become especially popular. The source of financing for the activities of developers, as a rule, is funds received from outside - from citizens (if we are talking about the construction of residential buildings), organizations, the state or municipalities (if the object has a commercial purpose). An investment agreement in the construction industry implies that the investor transfers funds to the developer in exchange for receiving finished real estate upon its construction (or, as an option, the right to buy the property of interest with significant preferences).
An interesting fact is that contracts of this type are not classified in any way in the civil legislation of the Russian Federation.
From the point of view of legal status, an investment contract for construction is a sample of a mixed agreement, the legitimacy of which is guaranteed by the wording of paragraph 2 of Article 421 of the Civil Code of the Russian Federation - on the possibility of concluding contracts that may or may not have such status provided for by the laws of the Russian Federation.
The structure of such agreements, as a rule, implies the presence of elements characteristic of types of agreements in a variety of areas.
That is, construction contracts may contain language characteristic of a loan agreement, contract or, for example, a partnership, based on the specifics of the activities of the company receiving the investment.
Nuances of legislation
At the same time, the Civil Code of the Russian Federation is not the only source of law that determines the status of construction contracts (more precisely, it provides guidelines for drawing up their structure). When drawing up such agreements, the norms of the Federal Law “On Investment Activity”, as well as the RSFSR Law of a similar nature, may be applied - in those parts where the provisions do not contradict a newer legal act. For example, some of the norms set out in the said Federal Law apply if we are not talking about building an object from scratch, but, say, about its major repairs or reconstruction. Agreements of this kind are in some cases also called investment agreements. Since there is no clear definition of such contracts in civil law, this is not a mistake.
Features of investment agreements
As we noted above, the laws of the Russian Federation do not provide a clear definition of what an investment agreement is. At the very beginning of the article, we cited one of the popular interpretations of this term, but our definition is not official. At the same time, Russian lawyers identify several typical features of an investment agreement. Let's look at them.
The key criterion here is the economic content of the agreements. Some lawyers believe that it does not matter of fundamental importance whether the investment agreement is concluded between individuals, legal entities, or both - the subjects of civil rights can be anything (as well as objects). Supporters of this opinion refer to the wording of the RSFSR Law “On Investment Activity” - it says, in particular, that the objects of investment activity can be funds and working capital in all spheres and segments of the national economy.
The Federal Law, already adopted in the Russian Federation, in turn, states that the object of investment can be property in any form of ownership - private, state, municipal and others. Some lawyers pay attention to a number of secondary legal sources. For example, one of the documents of Russian arbitration practice states that an investment agreement must necessarily contain wording reflecting the goal of the investor receiving income or other preferences.
Experts identify the following several key features by which a particular contract can be classified as an “investment contract.” Namely:
- the conclusion of an investment agreement must imply the long-term nature of the relationship between the parties;
- the agreement must be mutual in nature (that is, in exchange for receiving investments, the subject transfers to the investor the result of the investment - income, real estate, preferences, etc.);
- the agreement must have a basis (in the form of project documentation, offer, commercial proposal, etc.);
- the contract must reflect the commercial interest of the parties (that is, the investor receives some remuneration).
Depending on the area of business in which the investor and the recipient of funds are collaborating, the agreement may also include language suggesting the intended use of finances and material assets transferred by the investor, as well as the general or shared nature of ownership of the property that is transferred to the investment subject.
Investment partnership
In 2012, the institution of investment partnership was legislated in Russia, reflecting a special form of joint activity of partners. What are the features of the agreements concluded between them? The investment partnership agreement, first of all, has a specific subject matter.
In most cases, this is the joint acquisition of securities of business companies, as well as shares that form the joint capital in a special kind of legal form of business - a business partnership. An investment partnership, therefore, acts as a kind of compromise option for implementing legal relations between such forms as limited partnership (typical for legal entities) and simple partnership (in which individuals can participate).
An investment partnership implies a contractual relationship in which no intermediate taxes are paid when distributing income between participants. At the same time, the legislator grants parties to the agreement not to disclose the terms of transactions publicly. And in this respect, the status of an investment partnership differs in certain respects from an agreement between organizations. But there are common points between both. For example, in most cases it is necessary to specify the validity period of an investment partnership agreement, take into account the specifics of withdrawing specific participants from the agreement, the specifics of interaction with creditors, etc.
Practice of drawing up investment agreements in construction
Let's return to the study of agreements specific to the construction industry - as one of the most popular in terms of investment relationships in business. It will be useful to study, for example, the algorithm for the correct drafting of such contracts, based on the criteria accepted in the Russian legal system. We noted above that the form of an investment agreement may have signs of similarity to agreements typical for other areas of business - lending, sales, etc. Based on this feature, how to design contracts correctly?
Firstly, any civil agreement must begin with a preamble. It usually sets out the name of the contract, the place and time and its conclusion. The next component is information about the parties signing the agreement. If an investment agreement is concluded between legal entities, then it is necessary to record their official name, as well as list the officials who act on behalf of the relevant structures. If one of the parties to the contract is an individual, then it is necessary to indicate his identification data (full name, series and number of passport, registration address).
Note that the obligated party to the transaction, as a rule, has one of two main statuses - either it is the customer or the contractor. In the first case, this means that the investor’s counterparty undertakes to attract additional contractors - that is, it is mainly a management structure. But it is quite possible that the same legal entity will be both the customer and the contractor. However, experts still recommend using the first term in the contract.
The following sets out the terms of the investment agreement. As a rule, the subject of the agreement, financial indicators, and the content of the contract are recorded here. Some lawyers believe, referring to the provisions of Article 432 of the Civil Code, that the key condition of an investment agreement is precisely the subject matter. Its typical formulation here may sound something like this: “The investor participates in financing the project by transferring funds, and the customer uses them for the purpose of construction and subsequent transfer of the property in favor of the counterparty.” Of course, depending on the specifics of a particular project, the wording may be different.
The investment agreement, a sample of which we are currently drawing up, must also contain the address of the future property (street, number of the house, building and apartment - if they can be known), number of floors and other characteristics characterizing its geographical location. In some cases, experts recommend attaching to the contract a graphic plan of the location of the object on the ground, and also, if possible, also a diagram of the apartment.
The next point is that the parties to the investment agreement fix the list of work that the obligated party must carry out in order to fulfill the terms of the contract on its part. Experts recommend disclosing their contents in detail, that is, including in the agreement that these will be construction, technical, installation work, installation of utility infrastructure, and electricity. If finishing is envisaged, we also fix it. In some cases, it is more convenient to place a list of relevant works, as well as additional documentation on them, in appendices to the main contract.
The next point of the contract is the price. It is possible that the customer will want to install it in a foreign currency. But in this case, you should indicate the main source of data on its exchange rate relative to the ruble - as a rule, this is information from the Central Bank of the Russian Federation. That is, you can fix the following wording: “Calculations in rubles are made based on the exchange rate established by the Central Bank of the Russian Federation on the day when the investor makes the payment.” In the “price” section of the agreement, it is necessary to reflect the total amount of the contribution from the investor, and also, since the subject of the agreement is real estate, the price per square meter of housing.
The investment agreement, a sample of which we are drawing up, must include information about the deadline for the customer (contractor - if these statuses are combined) to fulfill its contractual obligations. Article 314 of the Civil Code of the Russian Federation states that if the period is not defined, then a certain reasonable period of time is taken as the basis. But it is better, of course, to specify this condition of the contract. At the same time, the period may be tied to different moments - the delivery of the object upon acceptance or the fact that the investor has registered ownership of the apartment. The specific criterion is determined by the parties to the contract, guided by objective priorities.
Investor Responsibilities
It will be useful to pay attention to such an item as the responsibilities of the investor. Experts believe that a standard draft investment agreement may contain the following combination:
- transfer funds or other material resources within the terms agreed upon in the contract (provide them to the customer on a regular basis);
- supply the partner with the necessary title and other documents;
- pay, if provided for in the agreement, a separate remuneration to the customer;
- accept the object.
Responsibilities of the customer
In turn, the customer is also given a certain range of obligations. What he should do:
- develop or order project documentation;
- find and allocate a plot of land for the construction of a real estate property;
- report on the construction process and expenditure of investments according to the schedule specified in the contract;
- hold, if provided for by the contract or legal requirements, tenders for attracting contractors;
- form a team of builders and specialists of other necessary profiles;
- control and exercise technical supervision over the work of counterparties;
- hand over the object for acceptance;
- provide the investor with the necessary documents.
Features of contract construction
If we extremely simplify the algorithm for constructing an investment agreement in construction, it will look something like this:
- one party, that is, the investor, undertakes to transfer funds to the customer;
- the other party, having used the appropriate remuneration, must invest the funds received, based on the specifics of the investment project, in the construction of a real estate property and subsequently transfer it to the investor;
- the agreement must include terms and other conditions.
Stages of implementation of a construction contract
We have studied the approximate structure of an investment agreement in the construction industry. Let us now consider the stages within which the corresponding agreement can be implemented. Experts identify three main stages of execution of an investment project.
Firstly, this is the period preceding immediate financial settlements. As part of it, the customer prepares design documentation, an economic feasibility study, and carries out technical preparation for the construction of the property. As for the first type of source, it is a collection of information that reflects the application of technology and engineering solutions in a construction project.
In this case, the list of works provided for in the design documentation may be indicative. In some cases, the investor may require the customer to supply a business plan, which should clearly display the advantages of a particular project, including its technological and engineering specifics.
Secondly, this is an investment and construction stage as such. Within its framework, the customer finds an investor, enters into an appropriate type of agreement with him, signs contracts, in turn, with counterparties, and formalizes labor relations with hired specialists. Afterwards, he builds the object, and then transfers it to the disposal of the investor.
Thirdly, this is the operational stage. As part of it, additional work can be carried out - in the direction of finishing, supplying the facility with additional utility resources, resolving possible issues related to shortcomings made during construction, etc.
Transfer of the object to the investor
An investment contract for construction, a sample of which we reviewed above in terms of key features, implies that the transfer of a property must be accompanied by the signing of an acceptance certificate (or a similar document) upon completion of construction. In addition, the investor must also obtain the necessary title documents. In some cases, the customer also undertakes to place at the disposal of the partner the main sources on the profile of working documentation - they can be used, for example, during finishing work or reconstruction.
Download the investment agreement
Moscow "___" _________201_.
Open Joint-Stock Company "_____________________________", (short name of OJSC - "_______"), hereinafter referred to as "CUSTOMER-DEVELOPER", represented by the General Director _______________, acting on the basis of the Charter, on the one hand and _____________________________, __________ year of birth, TIN - __________, passport ________________, issued _________, Department of Internal Affairs _____________, hereinafter referred to as “INVESTOR”, on the other hand, collectively referred to as the “Parties”, have entered into this investment agreement (hereinafter referred to as the “Agreement”) as follows:
1. TERMS AND DEFINITIONS
1.1. Investments - own, borrowed and/or attracted funds, securities, and other property invested by the Investor for the purpose of making a profit. In accordance with this agreement, investments are means of targeted financing (paragraph 10, subparagraph 14, paragraph 1, article 251 of the Tax Code of the Russian Federation).
1.2. Investment activity - making investments and carrying out practical actions in order to make a profit and implement the project.
1.3. Project - the necessary design documentation developed in accordance with the legislation of the Russian Federation and duly approved standards (norms and rules), as well as a description of organizational and technical measures for the creation of an investment object using investments in the form of work.
1.4. The result of investment activity is a shopping center being created at the address: __________________, the construction of which will be carried out in accordance with the project.
1.5. Contractors are individuals and legal entities who carry out design and construction work under construction contracts concluded with the Customer-Developer.
1.6. Work - the entire scope of practical work on the construction of the result of investment activity, to be performed by the Customer-Developer in accordance with the terms of this agreement.
1.7. Land plot - a plot with a total area of ______ square meters. m, cadastral N ____, located at the address: ________________, leased to the Customer-Developer to create the result of investment activity on the basis of ______________ (indicate the details of the administrative document) for the period of development of the initial permitting, design documentation and construction of the result of investment activity.
1.8. Project documentation - initial permits, technical documentation, technical conditions and passports for materials, equipment, structures and components, estimates, as well as other documentation not directly mentioned above, but necessary for the performance of work and technical operation of the result of investment activity.
1.9. The total area of the result of investment activity is the sum of the areas (useful, common use, engineering purposes) of all floors (including technical, basement and attic), measured by the internal surfaces of walls and built-in and attached premises.
2. SUBJECT OF THE AGREEMENT
2.1. Under this agreement, the Investor transfers to the Customer funds in the amount established by this agreement for the implementation of a project to create the result of investment activity on a land plot.
Upon completion of the investment project, commissioning of the facility, its state registration and subject to the Investor fulfilling its obligations to make investments, the Customer-Developer transfers to the Investor the result of investment activities under the __________ agreement (exchange, donation or other transaction on the alienation of this property).
2.2. Investments received from the Investor will be used to create the result of investment activities, perform all necessary work and other actions required for the implementation of the project, and monitor the implementation of work.
3. SETTLEMENT PROCEDURE BETWEEN THE PARTIES
3.1. The preliminary amount of investment under this investment agreement is determined by the Parties in the amount of ___________________ rubles.
3.2. Investments are sent by the Investor to the Customer-Developer in parts. The specific amount and deadline for transferring the next amount are agreed upon by the Parties in ______________.
3.3. Investments provided by the Investor for the implementation of the project are considered by the Parties as targeted financing funds allocated exclusively for the implementation of the project.
3.4. For the fulfillment by the Customer-Developer of its obligations (services) under this agreement, the Investor, in addition to the investments specified in this section, monthly before the _______ day of the month transfers to the Customer-Developer funds in the amount of _________________ rubles, including VAT - ____% - __________ rubles. Payment for services provided by the Customer-Developer is included in the estimated cost of the result of investment activity.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. The investor is obliged:
4.1.1. Provide financing under this agreement in full and in the manner established by this agreement, including payment for the services of the Customer-Developer.
4.1.2. Within _______ - days after signing this investment agreement, transfer to the Customer-Developer the project approved by the Investor, consisting of: ____________________________.
4.1.3. If necessary, take part in coordination with authorized government bodies, approval and receipt of permits and other documentation necessary to carry out work in accordance with the investment agreement.
4.1.4. Appoint representatives for the work of the state commission for the acceptance of the completed construction result of investment activity.
4.1.5. For your part, accept the result of investment activity under this agreement by signing the acceptance certificate.
4.1.6. From the moment of transfer of the result of investment activity, assume the burden of its maintenance, including the risk of accidental death, as well as bear other responsibilities provided for by the current legislation of the Russian Federation.
4.1.7. Properly fulfill your other obligations stipulated by the investment agreement.
4.2. The investor has the right:
4.2.1. Monitor the compliance of the volume and quality of work performed by the Contractor to create the result of investment activities.
When monitoring the progress of work, the Investor or his authorized person must move around the construction site, accompanied by an authorized representative of the Customer-Developer, while strictly observing safety regulations.
4.2.2. Check at any time the progress and quality of work, the compliance of the materials used, without interfering with the operational and economic activities of other subjects of investment activity.
4.2.3. With the consent of the Customer-Developer, transfer its rights and obligations under this agreement to a third party, subject to the latter’s acceptance of the duties, conditions and obligations under this agreement. Partial and/or complete transfer of rights and obligations
4.3. The Customer-Developer is obliged:
4.3.1. Using the investments made by the Investor, ensure the implementation of the project, including:
- ensure preparation of the construction site;
- organize the execution of work by Contractors, provide construction with materials and equipment;
- ensure proper execution by Contractors of the necessary construction and installation work;
etc…
The entire sample construction investment agreement is in the attached file.
This is a document in accordance with which the relationship between the investor and the customer develops.
The customer is the one who directly leads the project in which the other party to the agreement, the investor, has invested. An investment contract in construction, for example, may also have a contractor as a party to the agreement (its main task is to resolve organizational issues, for example, finding a customer and investor in order to implement the next project).
There is also such a thing as a special investment contract, which is concluded in accordance with. This agreement contains the investor’s obligations to create, modernize or master the production of industrial products in Russia. And the second party (the Russian Federation or a constituent entity of the Russian Federation) undertakes to stimulate activity in the industrial sector in accordance with regulatory legal acts. Thus, such an instrument was created with the aim of modernizing industry by providing benefits and preferences to investors. The Ministry of Industry and Trade concludes a special investment contract on behalf of the Russian Federation.
Essential terms of the agreement
Essential conditions include:
- Item. For the purpose of approval, the parties must indicate the characteristics of the object. For example, if we are talking about an object under construction: location of the land plot, location of the object, intended purpose, presence of balconies, garages, basements, attics, total area of the object.
- Price. There are several possible ways to indicate the contract value. The first is to indicate a fixed amount that remains unchanged for the entire period of the project. The second is the approximate profit, that is, the final payments will depend on the profit received.
- Deadlines. Such a condition is determined in the form of specific dates (it is important to use the principle of reasonableness of the deadline, that is, it is necessary to objectively assess the capabilities and features of a particular project).
The implementation of investment contracts on the part of the customer includes, for example, the provision of reports on the implementation of a project, site or office, the involvement of the necessary persons, and on the part of the investor - the transfer of funds, acceptance of the object after its delivery, as well as the payment of remuneration to the customer.
How to conclude an investment agreement
Let’s take a closer look at how to conclude a special investment contract. The benefit is provided on the basis of an act of the Government of the Russian Federation if the following conditions are met:
- concluded by the Russian Federation (subject of the Russian Federation or municipality);
- the volume of investments is more than 3 billion rubles;
- production of products will be carried out by a Russian organization;
- country of origin of products is the Russian Federation.
Also, in addition to the above criteria, it is necessary to indicate in the contract suspensive conditions that relate to the investor’s ability to enter into contracts for the supply of products in quality, as well as the maximum quantity of products supplied and liability for exceeding it.
It is necessary to note that the above criterion comes into force from the moment the Government of the Russian Federation issues an act on the appointment of the investor as the sole supplier.
Sample investment contract
The standard form of a special investment contract is enshrined in Decree of the Government of the Russian Federation dated July 16, 2015 No. 708 for various industries (for example, mechanical engineering, aviation or pharmaceutical products).
