Secured Loan with Guaranty - Fixed
This Loan Agreement for Secured Loan with Guaranty - Fixed is designed for use in Australia. This form is ready for immediate download.
A loan agreement defines the terms and conditions under which a lender advances funds to a borrower. This Loan Agreement for a secured loan with guaranty is repayable on the expiry date. This agreement also allows the lender to hold a security charge over property or assets and to name a guarantor who promises to repay the loan if the borrower defaults. Having a written Loan Agreement – Secured Loan with Guaranty Fixed will prove valuable in the event of disagreements or misunderstandings.
Among others, this form includes the following provisions:
Protect Yourself and your Rights by using our professionally prepared up-to-date forms.
This lawyer-prepared packet contains:
Among others, this form includes the following provisions:
- Parties to the Agreement: This provision contains the identity and names of the parties entering into the loan agreement;
- Loan: This provision sets out the amount of the secured loan and the security;
- Interest: This provision sets out the rate of interest for the loan;
- Repayment: This provision sets out that the entire loan, together with interest, is due on the expiry date;
- Guarantee: This provision sets forth that the guarantor agrees to repay the loan on demand if borrower defaults.
Protect Yourself and your Rights by using our professionally prepared up-to-date forms.
This lawyer-prepared packet contains:
- Information
- Loan Agreement – Secured Loan With Guaranty Fixed for use in Australia
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
LOAN AGREEMENT
Secured Loan with Guaranty - Fixed
THIS LOAN AGREEMENT (“Agreement”) is made the ____________________ day of _______________ 20__.
By and Between:
___________________of ________________________ (the "Lender")
And
___________________of ________________________ (the "Borrower")
IT IS AGREED:
1. DEFINITIONS
In this Agreement unless the context otherwise requires:
(a) "advance date" means the date on which such advance is made;
(b) "business day" means any date on which Trading Banks and the Lender are open for ordinary business in ______________[Mention State];
(c) "Collateral Security/Security” includes any mortgage, charge, agreement guarantee, indemnity or instrument of any kind whereby the Loan is secured or intended to be secured in favour of the Lender. It is specified in Item 1 of the Schedule;
(d) "debt" means the sum from time to time of all advances outstanding together with interest thereon calculated by the Lender in accordance with this Agreement and all other monies payable (actually or contingently) by the Borrower to the Lender hereunder and where the context admits each component part;
(e) "event of default" means any of the events described in this Agreement;
(f) “Expiry date” means the date as specified in Item 3 of the Schedule;
(g) “Guarantor” shall mean the person identified in Item 2 of the Schedule;
(h) “Secured Money" includes the Loan and all other money which the Borrower agrees to pay under any provision of this agreement including interest;
(i) words importing one gender shall include every gender;
(j) where more than one person is the Borrower this Agreement shall bind those persons jointly and each of them severally;
(k) any reference to any of the parties of their defined terms includes the party's executors, administrators and permitted assigns, or being a company its successors and permitted assigns;
(l) reference to an “Item” is a reference to an Item in the Schedule to this Agreement;
(m) the head notes are for reference purposes only; and
(n) reference to a person includes a corporation and vice versa.
2. LOAN
Subject to the terms of this Agreement the Lender hereby loans to the Borrower the amount of Amount of Loan of $______ (the “Loan”). If the parties agree, the Loan may be provided in 2 or more instalments. The Borrower acknowledges receipt of the full amount of the Loan.
3. CONDITIONS PRECEDENT TO ADVANCE
(a) The Lender shall advance to the Borrower the Loan on the advance date.
(b) The Guarantor (if any) shall execute a Guarantee in a form acceptable to the Lender guaranteeing the repayment of all monies payable by the Borrower hereunder.
(c) The Lender is not obliged to make the advance unless the Lender has satisfied itself that all searches and enquiries in relation to the Borrower have resulted satisfactorily and there has not arisen any matter which in the opinion of the Lender could materially affect the rights or interests of the Lender.
(d) A condition precedent to the making of the Loan is that the Lender has been provided with the Collateral Security (if any) in the form required by the Lender.
4. REPAYMENT
(a) The Borrower will pay to the Lender the debt and all interest accruing thereon on the date and the manner stipulated in Item 5.
(b) The Borrower may, at any time repay the whole of the debt however the Borrower shall pay at least two months interest notwithstanding that the date of repayment of the loan may be less than two months after the advance date.
ALTERNATIVE
(a) The Borrower must repay the Loan on the Expiry Date.
(b) The Borrower may, on one (1) month's written notice to the Lender, and with the consent of the Lender, repay the Loan in full before the Expiry Date, but the repayment will only be consented to by the Lender if, in consideration for the Lender giving the consent, the Borrower makes the payment on the last Business Day of a month.
5. INTEREST
(a) The Borrower must pay interest on the Loan at the Rate of Interest of ____________% on the last Business Day of the month in which the Loan or the first instalment of the Loan is provided by the Lender, and then on the last Business Day of every following month.
(b) The interest must be paid on sums which are part of the Secured Money but are not part of the Loan from the dates they become payable until they are paid.
(c) If any interest is not paid within 7 days after it becomes due for payment, the interest is added to the Loan from the date it became due and bears interest from that date, but without prejudice to the Lender's right immediately to sue for that interest, or the other rights of the Lender on default.
(d) The interest must be paid on the Loan or sums forming part of the Loan from the dates they are provided until the Expiry Date or until earlier repayment under clause 4(b) (but if the Borrower makes default in repaying the Loan on the Expiry Date, then until repayment).
6. NO DEDUCTIONS
All money payable by the Borrower must be paid in full without any deduction on account of any income or other taxes or charges present or future. If the Borrower is compelled by law to deduct any taxes or charges the Borrower must pay to the Lender such further sum as will result in the receipt by the Lender of the full amount payable.
7. DEFAULT
(a) Lender's Rights on Default
If an Event of Default occurs or is deemed to have occurred, then at the Lender's option, without any notice:
i. all of the Secured Money immediately becomes payable; and
ii. the Lender may decline to provide any part of the Loan which has not already been provided.
(b) Events of Default
The following are Events of Default:
i. the Borrower fails to pay any of the Secured Money when due;
ii. the Borrower breaches a term of:
• this agreement;
• any Collateral Security; or
• any other agreement, instrument or document between the Borrower and the Lender with regard to this agreement or any Collateral Security;
iii. any warranty or representation made or deemed to have been made under this agreement, any Collateral Security or any other written agreement between the Lender and the Borrower proves to have been untrue or misleading when made or deemed to have been made;
iv. if all or any part of this Agreement the security or the Guarantee given by the Guarantor becomes void, illegal, invalid, unenforceable or of limited or reduced force or effect;
v. an order for payment is made or a judgment is entered against the Borrower, any related body corporate of the Borrower or any guarantor of the Secured Money or any part of it and is not satisfied within 7 days;
vi. any creditor of the Borrower levies, or attempts to levy, any distress or execution against any property of the Borrower;
vii. the Borrower or any Guarantor, being a body corporate, becomes an externally-administered body corporate under the Corporations Act;
viii. steps are taken by any person towards making the Borrower or any Guarantor an externally-administered body corporate;
ix. the Borrower is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act;
x. a person holding a security interest in assets of the Borrower enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets; or
xi. If any representations, warranties or conditions precedent or subsequent described in this Agreement or otherwise or replies to any requisitions made by the Borrower are or become untrue, false or misleading;
AND a determination by the Lender that any of these events has occurred shall be final and binding on the Borrower and any Guarantor.
8. GENERAL COVENANTS BY BORROWER IN RELATION TO LOAN
(a) Borrower to Provide Financial Information
The Borrower must deliver to the Lender all financial and other information that the Lender requires from time to time.
(b) Borrower to Reimburse the Lender
The Borrower must pay to the Lender on reasonable notice any money which the Lender may reasonably see fit to pay to remedy any default of the Borrower.
9. APPLICATION OF MONEY
Money received by the Lender from the Borrower may be applied towards interest or other Secured Money at the Lender's discretion.
10. WARRANTIES
(a) The Borrower warrants that:
i. it has fully disclosed in writing to the Lender all facts relating to the Borrower, its related bodies corporate, and anything in connection with them that are material to the assessment of the nature and amount of the risk undertaken by the Lender in entering into this agreement;
ii. no action, proceeding or arbitration is pending or threatened against the Borrower before any court, administrative tribunal or arbitrator which could or might result in any material adverse change in the business assets or credit of the Borrower; and
iii. all financial statements and information furnished by the Borrower to the Lender are complete and correct and there are no other material facts or considerations the omission of which would render any of the information misleading.
11. ACKNOWLEDGEMENT
(a) The Borrower acknowledges that:
i. the Loan is to be applied by the Borrower wholly or predominantly for ______________________________________________ purposes [Mention Purposes for Loan];
ii. The Lender has recommended that the Borrower obtain independent legal and financial advice about the Loan and that the Borrower has had the opportunity to obtain such advice; and
iii. The Borrower has been provided with a copy of the Lender’s fees and Charges Schedule and has agreed for those fees and charges to be deducted from the advance of the loan funds at settlement.
12. GUARANTEE
(a) - GUARANTEEGuarantor:
i. GuarantorIn consideration of the Lender entering into this Agreement at the request of the Guarantors (which request is testified by the execution of this Agreement by the Guarantors), each Guarantor named in Item 2 of the Schedule agrees with the Lender that he/she will be jointly (with the Borrower and each other Guarantor named in this Agreement) and severally liable to the Lender for the due performance and observance of all the provisions in this Agreement. In particular he/she will be liable for the payment of all money payable by the Borrower to the Lender under this Agreement including amounts indemnified, damages resulting from breach of this Agreement and otherwise.
ii. The Guarantor hereby undertakes and agrees with the Lender that the Borrower shall at all times punctually discharge all its obligations to the Lender including (without limiting the generality of the foregoing) its obligation to pay loan repayments and other moneys and any obligation to indemnify the Lender and the Guarantor hereby guarantees the due and punctual performance and observance of all such obligations whether arising in contract or by operation of law in equity or otherwise.
(b) IndemnityIndemnity
The Guarantor shall indemnify the Lender against and in respect of:-
i. any of the terms of this Agreement not being enforceable by the Lender against the Borrower for any reason against any loss, including all money which would have been payable by or recoverable from the Borrower had this Agreement been fully enforceable against the Borrower;
ii. any loss, damages, costs or expenses sustained or incurred by the Lender in consequence of any failure on the part of the Borrower to discharge its obligations under this Agreement.
(c) Liability of GuarantorLiability of Guarantor
The liability of the Guarantor under this Agreement shall not be affected by anything and in particular, and without limiting the generality of the foregoing, shall not be affected by -
i. the termination of this Agreement;
ii. the death, mental incapacity, bankruptcy, assignment for the benefit of creditors, arrangement with creditors, winding-up, reconstruction, official management, receivership, liquidation, striking off or other demise of the Borrower or any Guarantor;
iii. the Lender becoming a party to or bound by any compromise, assignment of property, scheme of arrangement, composition of debts or scheme of reconstruction by the Borrower or any Guarantor or any other person;
iv. the giving to the Borrower or to any other person of any time, credit, consideration, forbearance or other indulgence;
v. the release (wholly or partially) of the Borrower or of any Guarantor from any obligation of the Borrower or such Guarantor under this Agreement;
vi. any transaction, arrangement or agreement whether in respect of this Agreement or otherwise that may take place between the Lender and the Borrower, the Lender and any Guarantor, or the Borrower and any Guarantor;
vii. the Lender failing to exercise or waiving or deferring any of its rights under this Agreement;
viii. any lack of capacity or power by the Borrower to enter into this Agreement or by any Guarantor to enter into this Part;
ix. any act or omission of the Lender, the Manager, or any person acting on behalf of the Lender or the Manager contrary to the interests of the Guarantor;
x. the obtaining of any judgment against the Borrower or any Guarantor;
xi. any actual or alleged set-off, defence, counter-claim or other deductions on the part of the Borrower or any Guarantor;
xii. any variation of the terms of this Agreement by agreement between the Lender and the Borrower or any other agreement between the Lender and the Borrower;
xiii. any other event, act, omission, mistake or default of the Lender, the Manager or any person whereby the Guarantor's liability to the Lender would, but for this provision, have been affected or discharged; and
xiv. the fact that this Agreement is required to be registered pursuant to any relevant legislation and is not so registered at any time during the term of the Agreement for any reason whatsoever including without limitation the neglect or default of the Lender or of persons acting on the Lender's behalf.
(d) Assignment of Benefit of GuaranteeAssignment of Benefit of Guarantee
Should the Lender transfer or assign its interest in this Agreement, the Lender may also assign the benefit of all the provisions on the part of the Guarantor in this Part. The Guarantor will, if requested by the Lender, at the expense of the Lender enter into a deed with any transferee or assignee from the Lender in terms substantially similar to this Part (including this clause).
(e) Principal ObligationsPrincipal Obligations
The obligations of the Guarantor in this Part are principal obligations and shall not be treated as ancillary, collateral or secondary to any other obligations including the obligations of the Borrower. In particular they shall not be affected by any security or right which the Lender may now hold or hereafter obtain for any indebtedness or liability to the Lender of the Borrower, to the intent that the covenants in this Agreement shall be enforceable notwithstanding that any other obligation is extinguished or unenforceable. The Lender need not, and shall not be required by the Guarantor, to marshal or otherwise realise in favour or for the benefit of the Guarantor any security held by the Lender from or in respect of the Borrower or any of the funds or assets that the Lender may be entitled to receive or have claim upon. The Lender may at its absolute discretion vary, exchange, renew, modify, release (wholly or partially) and refuse to complete, enforce or assign, any judgment, specialities, guarantees, negotiable instruments or other securities held by the Lender, whether satisfied by payment or not.
(f) No Proof in Estate of Borrower in Competition with LenderNo Proof in Estate of Lessee in Competition with Lessor
In the event of the bankruptcy, assignment for the benefit of creditors, arrangement with creditors, winding-up, receivership or the demise of the Borrower resulting in claims by creditors, the Guarantor agrees with the Lender that the Guarantor will not prove or claim in competition with the Lender so as to diminish any distribution, dividend or payment which, but for such proof, the Lender would be entitled to receive. The Guarantor will, if required by the Lender, prove or claim in the bankruptcy, assignment arrangement, winding-up, receivership or demise of the Borrower and any amount thereby received by the Guarantor from any distribution, dividend or payment shall be received and held by the Guarantor in trust for the Lender and paid to the Lender in reduction of the amount owing by the Guarantor to the Lender.
(g) Warranties by GuarantorWarranties by Guarantor
If the Guarantor is or includes a corporation or trustee, that corporation or trustee warrants that it has full and unrestricted power to covenant, agree and indemnify as hereinbefore provided and to execute this Agreement.
(h) Service on GuarantorService on Guarantor
Notwithstanding previous actual service on the Guarantor, any notice, document or any originating process or other written document in proceedings given in accordance with the provisions of the Agreement for service on the Borrower, but addressed to the Guarantor, shall be deemed to have been given to the Guarantor for all purposes.
13. TRUST PROVISIONS [Add only when a Trust is present]
Where a Borrower has executed this agreement in its capacity as trustee of a trust ("Trust"), whether or not the fact that the Borrower is a trustee is disclosed to the Lender, the Borrower acknowledges that this agreement is binding on the Borrower personally and in its capacity as trustee of the Trust and that the Lender's right of recourse extends to both the assets of the Borrower personally and the assets of the Trust.
14. MISCELLANEOUS PROVISIONS
(a) No Obligation to Resort to Collateral Security
The Lender is not obliged to resort to any Collateral Security for payment of the Secured Money before it resorts to this Agreement.
(b) Inconsistencies
So far as is possible, this Agreement must be read together with any Collateral Security and all other agreements or documents entered into in connection with this agreement and, in the event of inconsistency, the provision most favourable to or which confers the greatest benefit on the Lender prevails.
(c) Certificates
A certificate purporting to be signed by the Lender or an officer of or agent for the Lender stating:
i. the amount owing or contingently owing by the Borrower at a certain date under this agreement;
ii. the rate or rates of interest which are applicable to the Secured Money or any part of it;
iii. that a particular Event of Default has occurred; or
iv. any other act matter or thing arising under this agreement;
is for all purposes prima facie evidence of the facts stated in the certificate.
(d) Lender's Power to Assign
The Lender may assign the benefit of this agreement.
(e) Time of the Essence
Time is of the essence of the Borrower's obligations under this agreement unless otherwise agreed in writing by the Lender.
(f) Further Assurance
The Borrower must promptly at the Borrower's own cost do all things (including executing all documents) necessary or desirable to give full effect to this agreement.
(g) Severability
If anything in this agreement is unenforceable, illegal or void then it is severed and the rest of this agreement remains in force.
(h) Entire Agreement
This agreement and the Collateral Securities represent the entire agreement between the parties and all prior or contemporaneous representations, statements and agreements (if any) made by the Lender or the Lender's representatives are merged in this agreement.
(i) Variation
An amendment or variation to this agreement is not effective unless it is in writing and signed by the parties.
(j) Waiver Excluded
i. A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
ii. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
iii. A waiver is not effective unless it is in writing.
iv. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
(k) Costs and Expenses
The Borrower must pay or reimburse the Lender on notice for:
i. the reasonable costs, charges and expenses of the Lender in connection with the negotiation, preparation, execution, stamping and completion of this agreement and of any forms required by any statute or regulation to be lodged with any registry;
ii. the reasonable costs, charges and expenses of the Lender or any attorney of the Lender in connection with:
♣ any consent, exercise or non-exercise of any rights, waiver, variation, release or discharge in connection with or of this agreement; and
♣ the contemplated or actual enforcement or preservation of any rights under this agreement including, without limitation, any expenses incurred in retaining any independent consultant or other person to evaluate any matter of concern and in the case of the Lender its administration costs in connection with those events; and
iii. stamp duty and other taxes payable in connection with this agreement or in connection with any payment, receipt or other transaction contemplated by this agreement;
including, in each case without limitation, legal costs and expenses on a full indemnity basis or on a solicitor and client basis whichever is the greater.
(l) Notices
Any notice to be given hereunder by any party to the other, may be affected either by personal delivery in writing, or by mail, registered or certified, postage pre-paid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraphs of this Agreement, but each party may change their address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of five (5) days after mailing. The Independent Contractor agrees to keep the Company current as to their business and mailing addresses, as well as telephone, email and mobile numbers.
(m) Governing Law and Jurisdiction
i. This agreement is governed by the laws of _______________[Mention State].
ii. The parties submit to the non-exclusive jurisdiction of the courts of _______________[Mention State] and the Federal Court of Australia.
THE PARTIES sign this Agreement on the day hereinbefore mentioned.
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Signed for and on behalf of Lender by:
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By: _______________________
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Name: ______________________
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Signed for and on behalf of Borrower by:
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By: _________________________________
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Name: ______________________________
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Name: ______________________________
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Signed for and on behalf of Guarantor by:
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By: _________________________________
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Name: ______________________________
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Name: ______________________________
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SCHEDULE
Item 1 – Collateral Security:
Item 2 - Guarantor:
Item 3- Expiry date
Number of Pages13
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#32606
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
LOAN AGREEMENT
Secured Loan with Guaranty - Fixed
THIS LOAN AGREEMENT (“Agreement”) is made the ____________________ day of _______________ 20__.
By and Between:
___________________of ________________________ (the "Lender")
And
___________________of ________________________ (the "Borrower")
IT IS AGREED:
1. DEFINITIONS
In this Agreement unless the context otherwise requires:
(a) "advance date" means the date on which such advance is made;
(b) "business day" means any date on which Trading Banks and the Lender are open for ordinary business in ______________[Mention State];
(c) "Collateral Security/Security” includes any mortgage, charge, agreement guarantee, indemnity or instrument of any kind whereby the Loan is secured or intended to be secured in favour of the Lender. It is specified in Item 1 of the Schedule;
(d) "debt" means the sum from time to time of all advances outstanding together with interest thereon calculated by the Lender in accordance with this Agreement and all other monies payable (actually or contingently) by the Borrower to the Lender hereunder and where the context admits each component part;
(e) "event of default" means any of the events described in this Agreement;
(f) “Expiry date” means the date as specified in Item 3 of the Schedule;
(g) “Guarantor” shall mean the person identified in Item 2 of the Schedule;
(h) “Secured Money" includes the Loan and all other money which the Borrower agrees to pay under any provision of this agreement including interest;
(i) words importing one gender shall include every gender;
(j) where more than one person is the Borrower this Agreement shall bind those persons jointly and each of them severally;
(k) any reference to any of the parties of their defined terms includes the party's executors, administrators and permitted assigns, or being a company its successors and permitted assigns;
(l) reference to an “Item” is a reference to an Item in the Schedule to this Agreement;
(m) the head notes are for reference purposes only; and
(n) reference to a person includes a corporation and vice versa.
2. LOAN
Subject to the terms of this Agreement the Lender hereby loans to the Borrower the amount of Amount of Loan of $______ (the “Loan”). If the parties agree, the Loan may be provided in 2 or more instalments. The Borrower acknowledges receipt of the full amount of the Loan.
3. CONDITIONS PRECEDENT TO ADVANCE
(a) The Lender shall advance to the Borrower the Loan on the advance date.
(b) The Guarantor (if any) shall execute a Guarantee in a form acceptable to the Lender guaranteeing the repayment of all monies payable by the Borrower hereunder.
(c) The Lender is not obliged to make the advance unless the Lender has satisfied itself that all searches and enquiries in relation to the Borrower have resulted satisfactorily and there has not arisen any matter which in the opinion of the Lender could materially affect the rights or interests of the Lender.
(d) A condition precedent to the making of the Loan is that the Lender has been provided with the Collateral Security (if any) in the form required by the Lender.
4. REPAYMENT
(a) The Borrower will pay to the Lender the debt and all interest accruing thereon on the date and the manner stipulated in Item 5.
(b) The Borrower may, at any time repay the whole of the debt however the Borrower shall pay at least two months interest notwithstanding that the date of repayment of the loan may be less than two months after the advance date.
ALTERNATIVE
(a) The Borrower must repay the Loan on the Expiry Date.
(b) The Borrower may, on one (1) month's written notice to the Lender, and with the consent of the Lender, repay the Loan in full before the Expiry Date, but the repayment will only be consented to by the Lender if, in consideration for the Lender giving the consent, the Borrower makes the payment on the last Business Day of a month.
5. INTEREST
(a) The Borrower must pay interest on the Loan at the Rate of Interest of ____________% on the last Business Day of the month in which the Loan or the first instalment of the Loan is provided by the Lender, and then on the last Business Day of every following month.
(b) The interest must be paid on sums which are part of the Secured Money but are not part of the Loan from the dates they become payable until they are paid.
(c) If any interest is not paid within 7 days after it becomes due for payment, the interest is added to the Loan from the date it became due and bears interest from that date, but without prejudice to the Lender's right immediately to sue for that interest, or the other rights of the Lender on default.
(d) The interest must be paid on the Loan or sums forming part of the Loan from the dates they are provided until the Expiry Date or until earlier repayment under clause 4(b) (but if the Borrower makes default in repaying the Loan on the Expiry Date, then until repayment).
6. NO DEDUCTIONS
All money payable by the Borrower must be paid in full without any deduction on account of any income or other taxes or charges present or future. If the Borrower is compelled by law to deduct any taxes or charges the Borrower must pay to the Lender such further sum as will result in the receipt by the Lender of the full amount payable.
7. DEFAULT
(a) Lender's Rights on Default
If an Event of Default occurs or is deemed to have occurred, then at the Lender's option, without any notice:
i. all of the Secured Money immediately becomes payable; and
ii. the Lender may decline to provide any part of the Loan which has not already been provided.
(b) Events of Default
The following are Events of Default:
i. the Borrower fails to pay any of the Secured Money when due;
ii. the Borrower breaches a term of:
• this agreement;
• any Collateral Security; or
• any other agreement, instrument or document between the Borrower and the Lender with regard to this agreement or any Collateral Security;
iii. any warranty or representation made or deemed to have been made under this agreement, any Collateral Security or any other written agreement between the Lender and the Borrower proves to have been untrue or misleading when made or deemed to have been made;
iv. if all or any part of this Agreement the security or the Guarantee given by the Guarantor becomes void, illegal, invalid, unenforceable or of limited or reduced force or effect;
v. an order for payment is made or a judgment is entered against the Borrower, any related body corporate of the Borrower or any guarantor of the Secured Money or any part of it and is not satisfied within 7 days;
vi. any creditor of the Borrower levies, or attempts to levy, any distress or execution against any property of the Borrower;
vii. the Borrower or any Guarantor, being a body corporate, becomes an externally-administered body corporate under the Corporations Act;
viii. steps are taken by any person towards making the Borrower or any Guarantor an externally-administered body corporate;
ix. the Borrower is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act;
x. a person holding a security interest in assets of the Borrower enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets; or
xi. If any representations, warranties or conditions precedent or subsequent described in this Agreement or otherwise or replies to any requisitions made by the Borrower are or become untrue, false or misleading;
AND a determination by the Lender that any of these events has occurred shall be final and binding on the Borrower and any Guarantor.
8. GENERAL COVENANTS BY BORROWER IN RELATION TO LOAN
(a) Borrower to Provide Financial Information
The Borrower must deliver to the Lender all financial and other information that the Lender requires from time to time.
(b) Borrower to Reimburse the Lender
The Borrower must pay to the Lender on reasonable notice any money which the Lender may reasonably see fit to pay to remedy any default of the Borrower.
9. APPLICATION OF MONEY
Money received by the Lender from the Borrower may be applied towards interest or other Secured Money at the Lender's discretion.
10. WARRANTIES
(a) The Borrower warrants that:
i. it has fully disclosed in writing to the Lender all facts relating to the Borrower, its related bodies corporate, and anything in connection with them that are material to the assessment of the nature and amount of the risk undertaken by the Lender in entering into this agreement;
ii. no action, proceeding or arbitration is pending or threatened against the Borrower before any court, administrative tribunal or arbitrator which could or might result in any material adverse change in the business assets or credit of the Borrower; and
iii. all financial statements and information furnished by the Borrower to the Lender are complete and correct and there are no other material facts or considerations the omission of which would render any of the information misleading.
11. ACKNOWLEDGEMENT
(a) The Borrower acknowledges that:
i. the Loan is to be applied by the Borrower wholly or predominantly for ______________________________________________ purposes [Mention Purposes for Loan];
ii. The Lender has recommended that the Borrower obtain independent legal and financial advice about the Loan and that the Borrower has had the opportunity to obtain such advice; and
iii. The Borrower has been provided with a copy of the Lender’s fees and Charges Schedule and has agreed for those fees and charges to be deducted from the advance of the loan funds at settlement.
12. GUARANTEE
(a) - GUARANTEEGuarantor:
i. GuarantorIn consideration of the Lender entering into this Agreement at the request of the Guarantors (which request is testified by the execution of this Agreement by the Guarantors), each Guarantor named in Item 2 of the Schedule agrees with the Lender that he/she will be jointly (with the Borrower and each other Guarantor named in this Agreement) and severally liable to the Lender for the due performance and observance of all the provisions in this Agreement. In particular he/she will be liable for the payment of all money payable by the Borrower to the Lender under this Agreement including amounts indemnified, damages resulting from breach of this Agreement and otherwise.
ii. The Guarantor hereby undertakes and agrees with the Lender that the Borrower shall at all times punctually discharge all its obligations to the Lender including (without limiting the generality of the foregoing) its obligation to pay loan repayments and other moneys and any obligation to indemnify the Lender and the Guarantor hereby guarantees the due and punctual performance and observance of all such obligations whether arising in contract or by operation of law in equity or otherwise.
(b) IndemnityIndemnity
The Guarantor shall indemnify the Lender against and in respect of:-
i. any of the terms of this Agreement not being enforceable by the Lender against the Borrower for any reason against any loss, including all money which would have been payable by or recoverable from the Borrower had this Agreement been fully enforceable against the Borrower;
ii. any loss, damages, costs or expenses sustained or incurred by the Lender in consequence of any failure on the part of the Borrower to discharge its obligations under this Agreement.
(c) Liability of GuarantorLiability of Guarantor
The liability of the Guarantor under this Agreement shall not be affected by anything and in particular, and without limiting the generality of the foregoing, shall not be affected by -
i. the termination of this Agreement;
ii. the death, mental incapacity, bankruptcy, assignment for the benefit of creditors, arrangement with creditors, winding-up, reconstruction, official management, receivership, liquidation, striking off or other demise of the Borrower or any Guarantor;
iii. the Lender becoming a party to or bound by any compromise, assignment of property, scheme of arrangement, composition of debts or scheme of reconstruction by the Borrower or any Guarantor or any other person;
iv. the giving to the Borrower or to any other person of any time, credit, consideration, forbearance or other indulgence;
v. the release (wholly or partially) of the Borrower or of any Guarantor from any obligation of the Borrower or such Guarantor under this Agreement;
vi. any transaction, arrangement or agreement whether in respect of this Agreement or otherwise that may take place between the Lender and the Borrower, the Lender and any Guarantor, or the Borrower and any Guarantor;
vii. the Lender failing to exercise or waiving or deferring any of its rights under this Agreement;
viii. any lack of capacity or power by the Borrower to enter into this Agreement or by any Guarantor to enter into this Part;
ix. any act or omission of the Lender, the Manager, or any person acting on behalf of the Lender or the Manager contrary to the interests of the Guarantor;
x. the obtaining of any judgment against the Borrower or any Guarantor;
xi. any actual or alleged set-off, defence, counter-claim or other deductions on the part of the Borrower or any Guarantor;
xii. any variation of the terms of this Agreement by agreement between the Lender and the Borrower or any other agreement between the Lender and the Borrower;
xiii. any other event, act, omission, mistake or default of the Lender, the Manager or any person whereby the Guarantor's liability to the Lender would, but for this provision, have been affected or discharged; and
xiv. the fact that this Agreement is required to be registered pursuant to any relevant legislation and is not so registered at any time during the term of the Agreement for any reason whatsoever including without limitation the neglect or default of the Lender or of persons acting on the Lender's behalf.
(d) Assignment of Benefit of GuaranteeAssignment of Benefit of Guarantee
Should the Lender transfer or assign its interest in this Agreement, the Lender may also assign the benefit of all the provisions on the part of the Guarantor in this Part. The Guarantor will, if requested by the Lender, at the expense of the Lender enter into a deed with any transferee or assignee from the Lender in terms substantially similar to this Part (including this clause).
(e) Principal ObligationsPrincipal Obligations
The obligations of the Guarantor in this Part are principal obligations and shall not be treated as ancillary, collateral or secondary to any other obligations including the obligations of the Borrower. In particular they shall not be affected by any security or right which the Lender may now hold or hereafter obtain for any indebtedness or liability to the Lender of the Borrower, to the intent that the covenants in this Agreement shall be enforceable notwithstanding that any other obligation is extinguished or unenforceable. The Lender need not, and shall not be required by the Guarantor, to marshal or otherwise realise in favour or for the benefit of the Guarantor any security held by the Lender from or in respect of the Borrower or any of the funds or assets that the Lender may be entitled to receive or have claim upon. The Lender may at its absolute discretion vary, exchange, renew, modify, release (wholly or partially) and refuse to complete, enforce or assign, any judgment, specialities, guarantees, negotiable instruments or other securities held by the Lender, whether satisfied by payment or not.
(f) No Proof in Estate of Borrower in Competition with LenderNo Proof in Estate of Lessee in Competition with Lessor
In the event of the bankruptcy, assignment for the benefit of creditors, arrangement with creditors, winding-up, receivership or the demise of the Borrower resulting in claims by creditors, the Guarantor agrees with the Lender that the Guarantor will not prove or claim in competition with the Lender so as to diminish any distribution, dividend or payment which, but for such proof, the Lender would be entitled to receive. The Guarantor will, if required by the Lender, prove or claim in the bankruptcy, assignment arrangement, winding-up, receivership or demise of the Borrower and any amount thereby received by the Guarantor from any distribution, dividend or payment shall be received and held by the Guarantor in trust for the Lender and paid to the Lender in reduction of the amount owing by the Guarantor to the Lender.
(g) Warranties by GuarantorWarranties by Guarantor
If the Guarantor is or includes a corporation or trustee, that corporation or trustee warrants that it has full and unrestricted power to covenant, agree and indemnify as hereinbefore provided and to execute this Agreement.
(h) Service on GuarantorService on Guarantor
Notwithstanding previous actual service on the Guarantor, any notice, document or any originating process or other written document in proceedings given in accordance with the provisions of the Agreement for service on the Borrower, but addressed to the Guarantor, shall be deemed to have been given to the Guarantor for all purposes.
13. TRUST PROVISIONS [Add only when a Trust is present]
Where a Borrower has executed this agreement in its capacity as trustee of a trust ("Trust"), whether or not the fact that the Borrower is a trustee is disclosed to the Lender, the Borrower acknowledges that this agreement is binding on the Borrower personally and in its capacity as trustee of the Trust and that the Lender's right of recourse extends to both the assets of the Borrower personally and the assets of the Trust.
14. MISCELLANEOUS PROVISIONS
(a) No Obligation to Resort to Collateral Security
The Lender is not obliged to resort to any Collateral Security for payment of the Secured Money before it resorts to this Agreement.
(b) Inconsistencies
So far as is possible, this Agreement must be read together with any Collateral Security and all other agreements or documents entered into in connection with this agreement and, in the event of inconsistency, the provision most favourable to or which confers the greatest benefit on the Lender prevails.
(c) Certificates
A certificate purporting to be signed by the Lender or an officer of or agent for the Lender stating:
i. the amount owing or contingently owing by the Borrower at a certain date under this agreement;
ii. the rate or rates of interest which are applicable to the Secured Money or any part of it;
iii. that a particular Event of Default has occurred; or
iv. any other act matter or thing arising under this agreement;
is for all purposes prima facie evidence of the facts stated in the certificate.
(d) Lender's Power to Assign
The Lender may assign the benefit of this agreement.
(e) Time of the Essence
Time is of the essence of the Borrower's obligations under this agreement unless otherwise agreed in writing by the Lender.
(f) Further Assurance
The Borrower must promptly at the Borrower's own cost do all things (including executing all documents) necessary or desirable to give full effect to this agreement.
(g) Severability
If anything in this agreement is unenforceable, illegal or void then it is severed and the rest of this agreement remains in force.
(h) Entire Agreement
This agreement and the Collateral Securities represent the entire agreement between the parties and all prior or contemporaneous representations, statements and agreements (if any) made by the Lender or the Lender's representatives are merged in this agreement.
(i) Variation
An amendment or variation to this agreement is not effective unless it is in writing and signed by the parties.
(j) Waiver Excluded
i. A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
ii. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
iii. A waiver is not effective unless it is in writing.
iv. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
(k) Costs and Expenses
The Borrower must pay or reimburse the Lender on notice for:
i. the reasonable costs, charges and expenses of the Lender in connection with the negotiation, preparation, execution, stamping and completion of this agreement and of any forms required by any statute or regulation to be lodged with any registry;
ii. the reasonable costs, charges and expenses of the Lender or any attorney of the Lender in connection with:
♣ any consent, exercise or non-exercise of any rights, waiver, variation, release or discharge in connection with or of this agreement; and
♣ the contemplated or actual enforcement or preservation of any rights under this agreement including, without limitation, any expenses incurred in retaining any independent consultant or other person to evaluate any matter of concern and in the case of the Lender its administration costs in connection with those events; and
iii. stamp duty and other taxes payable in connection with this agreement or in connection with any payment, receipt or other transaction contemplated by this agreement;
including, in each case without limitation, legal costs and expenses on a full indemnity basis or on a solicitor and client basis whichever is the greater.
(l) Notices
Any notice to be given hereunder by any party to the other, may be affected either by personal delivery in writing, or by mail, registered or certified, postage pre-paid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraphs of this Agreement, but each party may change their address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of five (5) days after mailing. The Independent Contractor agrees to keep the Company current as to their business and mailing addresses, as well as telephone, email and mobile numbers.
(m) Governing Law and Jurisdiction
i. This agreement is governed by the laws of _______________[Mention State].
ii. The parties submit to the non-exclusive jurisdiction of the courts of _______________[Mention State] and the Federal Court of Australia.
THE PARTIES sign this Agreement on the day hereinbefore mentioned.
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Signed for and on behalf of Lender by:
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By: _______________________
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Name: ______________________
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Signed for and on behalf of Borrower by:
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By: _________________________________
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Name: ______________________________
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Name: ______________________________
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Signed for and on behalf of Guarantor by:
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By: _________________________________
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Name: ______________________________
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Name: ______________________________
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SCHEDULE
Item 1 – Collateral Security:
Item 2 - Guarantor:
Item 3- Expiry date
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Palm Desert,
CA
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