Loan agreement

About this secured loan agreement

This secured loan agreement is for use when borrower is a company or other corporate body, or a trust. It is drawn so that lender is also a corporate body, but the lender may as easily be an individual or a trust. It is drawn primarily to protect the lender, but if you are the borrower, you have the opportunity to edit any point you would prefer not to include.

The agreement may be for a loan by a family member to her nephew’s business; by a business angel who has also taken shares; simply an arm’s length “investment, or any other.
We have provided for both a personal guarantee and for other securities. That may be more than the lender needs. If the right person, or people will give a guarantee, that is more powerful that other forms of security.

The security could be any property which is not physical nor personal: shares, other tradeable security; shares in the borrower itself, and so on.

The loan is “secured” by the borrower lodging documentary securities with the lender. Where there is no paper copy of evidence of ownership, this document provides the evidence that the item is “secured” to the lender.

If the value of the security falls below a specified level, the lender can call on the borrower to top it up. In addition, at any time, and without giving a reason, the Lender may call upon the Borrower to transfer title to any or all of the Securities to him. If there is no accepted system of registration of ownership, that is the only way the lender would be protected if the borrower went down. (The reason for the transfer should be set down in a letter so that the security can be passed back to the borrower when the loan has been repaid, without tax or other problems).

The guarantee is worded to cover every obligation of the borrower. If a guarantee is not required, it may be deleted easily.

There is no limit in law on the interest that the lender charges. We have provided for a greater rate of interest if the borrower falls behind with repayments. (That is done very carefully so as to avoid it being treated as a “penalty” - not allowed in Australian law.)

Because the borrower is a company, we have included a small raft of warranties. These take effect as promises by the borrower as to aspects of its financial state. We have also provided that the signatory accepts personal liability for his proper authorisation. To some extent that person is bound in the same way as the company.

The agreement could be whatever you want to put in it, but we have provided a sound and comprehensive proposal containing many options. It is supported by extensive drafting notes so that you will know whether you can safely delete some provision. It is most unlikely that you will want to add new provisions, but if you do, it is easy. Our layout and use of plain English makes it very easy to edit by deletion.

The law in this secured loan agreement

There is little statutory regulation relating to an agreement of this nature, so you can make, more or less, the deal you choose.

Drawn outside the National Consumer Credit Protection Act 2009, this agreement is not suitable for companies in the business of lending or providing credit to consumers.

Since the 30 January 2012, the rules relating to registration of charges over personal property and other securities given by companies have been changed. The Personal Property Securities Act 2009 (PPS Act) commenced in Australia on 30 January 2012 and established a new system for the registration of security interests in personal property. Prior to personal security reforms, the charges were registered on the Australian Securities and Investment Commission (ASIC) Register of Company Charges. Registration and the relative priority of these interests were governed by the Corporations Act 2001.

The Australian PPS Act establishes the Personal Property Securities Register (“the PPS Register”).  This register is a single, national register which replaces numerous State, Territory and Commonwealth electronic and paper registers. A personal property security is where a secured party takes an interest in personal property as security for a loan or other obligation, or enters into a transaction that involves the supply of secured finance.

The PPS Act generally requires the registration of security interests in order for priority to be maximised. As a simple example, a registered security interest will have priority over an unregistered security interest despite being created after the unregistered security interest.

Alternatives to this secured loan agreement

Net Lawman offers three documents in this set. Each is available in two versions: one for a company borrower and the other set for a human individual or partnership borrower. All can be for any purpose.

The documents are:

• Unsecured loan agreement: person to person; private or business
• Loan agreement: individual borrower; secured on financial assets
• Loan agreement: private borrower; secured on physical assets
• Loan agreement: company; secured by guarantee
• Loan agreement: person to person; secured by guarantee
• Loan agreement: company; secured on financial instruments (this agreement)
• Loan agreement: company borrower; secured on physical assets; guarantor option

We do not provide a document suitable for charging real property because such work is restricted by law to solicitors and licensed conveyancers.

Contents of this secured loan agreement

The contents of this agreement include:

• Definitions and important interpretation provisions
• Borrower’s warranties
• Amount of loan and how advanced
• The security
• Interest amount and arrangements
• Repayment provisions
• Promise by borrower to make no change to capital structure.
• What happens if things go wrong - notices, consequences and so on
• An option on possible assignment of the rights and obligations set up under the agreement.
• The guarantor’s promises
• A round up of legal matters which many draftsmen use to create another ten paragraphs. Here they are in one place and in plain English
• Around 1400 words of helpful drafting notes