Q&A: Securing Obligations in Kazakhstan

The holders of the shares in the company have the right to pledge all or part of the shares in favor of the lenders (including foreign lenders). The major shortcoming of such a pledge is that the lenders would not be entitled to take possession of the shares but instead must sell the shares through a public auction.

A pledge over shares in the company might be registered either with the Ministry of Justice or with the relevant independent share registrar, which will make an entry regarding the pledge in the company’s shareholder’s register.

There are no restrictions on the lenders’ right to enforce the pledge over the shares, subject to their compliance with local procedural rules for such enforcement.

It is important to note that a purchaser of 25% or more of the shares in the company may be required to obtain approval of such purchase from the Competition Agency. If the purchase will be subject to the antimonopoly approval (depends on the combined asset value, or annual turnover of the purchaser and the company), then the purchaser will be required to apply for approval within 30 days after the public auction at which it acquired the shares.

The company can pledge its land, plant and machinery in favor of the lenders, including foreign lenders.

If the relevant plant and machinery is deemed to be immovable property (i.e., inseparable from the land or building at which it is installed), the pledge must be registered with the Ministry of Justice to be valid. If the plant and machinery is not deemed to be immovable property, the security interest (pledge) will be created by means of the pledge agreement. However, to ensure the priority of the lenders’ security interest, the pledge should be registered with the registration authorities of the Ministry of Justice as discussed above.

It is possible to register the plant with the registration authorities of the Ministry of Justice as a “property complex” (i.e. as a going concern, consisting of all assets and liabilities which comprises it, i.e. land, buildings, plant and machinery, intellectual property, goods in stock and other relevant property and assets). Once registered as a property complex, it may be pledged as such in favor of the lenders. However, this possibility is only available after the plant is constructed and commissioned.

It is possible for a company to pledge its monetary claims under a contract. Thus, the company should be able to pledge its rights to receivables (for instance from electricity sales under power purchase agreements). Where rights to receivables are pledged, the enforcement will be carried out by way of assignment of the relevant rights to the pledgee (i.e. without the public auction as it is with most other types of collateral).

The pledge of railway rolling stock is subject to registration with the authorized body - the Ministry of Industry and Infrastructure Development.

Importantly, the registration shall be carried out by the pledgor in place of its registration. As such if the pledgor is a non-resident of Kazakhstan such pledge, apparently, could not be registered in Kazakhstan.

It is possible for a company to pledge its nonmonetary rights under a contract. However, this form of security has a major drawback: as with most other types of collateral, the secured creditor cannot simply take possession of the collateral (i.e. to have the relevant rights assigned to it). The creditor must seek to sell the collateral (i.e. the pledged rights) through a public auction and recover the debt from the sale proceeds. This makes pledging non-monetary rights under a contract impracticable.

Accordingly, while the company can pledge its nonmonetary rights and benefits under the project agreements in favor of the lenders, such form of security is not practicable. The lenders (or a company appointed by them) would not be able to enforce the pledge by stepping in but will be required to seek to sell the pledged rights through a public auction.

As a matter of Kazakhstan law, the company has the right to pledge in favor of the lenders the money standing at the company’s bank account (whether such account is with a Kazakhstan bank or with a foreign bank). From the legal prospective, it is not possible to pledge the bank account itself, but only the rights of the company to the money standing at such account.

Upon default of the company the lenders will be entitled to directly debit such account and take the money standing at such account and the money deposited to such account thereafter as set forth in the pledge agreement. However, the relevant Kazakhstan bank should also be a part of the security arrangement over the company’s bank account to allow the lender to directly debit such account.

Generally, where money is pledged, the enforcement is carried out by transferring the relevant money to the pledgee

According to the law of the Republic of Kazakhstan, the company is obliged to notify the National Bank of the Republic of Kazakhstan when opening bank account(s) in a foreign Banks. Subsequently, the company can grant a security interest to the lenders over such foreign bank account, which will be created and enforced under the relevant foreign law.

Land plots owned or leased for a long-term period by the company may be mortgaged in favor of the lenders.

As a matter of Kazakhstan law, construction in progress constitutes movable property (not real estate) until the construction is finished, commissioned by the State and registered by the Ministry of Justice as a unit of real estate. In this regard, the construction in progress can be pledged as movable property, but not as real estate.

It is important to mention that the pledge over construction in progress does not automatically convert into pledge over real property after completion and registration of construction. Instead, after the plant is commissioned, it will be necessary for the company to execute a new pledge agreement in respect of the plant, replacing the earlier agreement in respect of construction in progress.

As mentioned above, the title to a land plot is inseparable from the title to real property it underlies. Therefore, a mortgage of a building means that the underlying land plot will also become the subject of the same mortgage.

The laws of the Republic of Kazakhstan contain the concept of the grain receipt, which is a certificate in the form of a debt non-documentary non-issue security, certifying the rights of its holder to receive grain from a grain-receiving enterprise in the volume and quality determined during its issue.

The holder of the grain receipt registers the order for the transfer / pledge of the grain receipt with indicating information about the pledgee and the information on the pledgee agreement. Upon payment of the debt by the holder of the grain receipt in the amount of the obligation to the creditor, the pledgee is obliged to register in the register an order to remove the encumbrance (pledge).

It is also important to know that the claims of holders of grain receipts containing information about the pledge are satisfied in the third priority, after satisfaction of claims for compensation for harm for causing harm to life or health, and payment of wages to employees.

In accordance with the legislation of the Republic of Kazakhstan, the pledge of an aircraft is governed by the norms of Kazakh law in case if such an aircraft belongs to a Kazakh legal entity and / or is registered in the Aircraft Register. The pledge of the aircraft is subject to registration with the Authorized Body - the Ministry of Industry and Infrastructure Development of the Republic of Kazakhstan.

Along with that, it should be noted that the legislation in the field of aircrafts, in addition to the legislation of the Republic of Kazakhstan, is also regulated by international agreements (e.g. the Convention on International Guarantees for Mobile Equipment and the Protocol on Aviation Equipment to the Cape Town Convention.)

Thus, the procedure for foreclosure on an aircraft that is the subject of a pledge should be governed by the provisions of the Cape Town Convention and its Protocol, according to which the lessor / lender is granted a real right to the aircraft itself. The sale of an aircraft when foreclosure on the subject of a pledge should be carried out in accordance with the provisions of the Cape Town Convention and its Protocol, and not in accordance with the legislation of Kazakhstan.