Loan Agreement - Template Form to Fill out Word and PDF Pro · AU-law

LOAN AGREEMENT

DATED: ________

BETWEEN:

________ ________

of the following address:

________

(the 'Lender')

- AND -

________ ________

of the following address:

________

(the 'Borrower')

- AND -

________

of the following address:

________

(the 'Guarantor')

BACKGROUND

(A) The Lender has agreed to lend the Loan Principal to the Borrower, and the Borrower has agreed to borrow the Loan Principal from the Lender, on the terms and conditions set out in this Agreement.

(B) The Guarantor has agreed to guarantee the obligations of the Borrower under this Agreement on the terms set out in this Agreement.

OPERATIVE PROVISIONS:

(1) DEFINITIONS

In this Agreement the following terms are defined as follows:

'Agreement' means this loan agreement.

'Business Day' means a day that is not a Saturday, Sunday, public holiday or bank holiday in the State of ________.

'Commencement Date' means the earlier of the date this Agreement is executed by the parties or the date that the Loan Principal is advanced to the Borrower.

'First Payment Date' means ________.

'Interest Rate' means ________% (________ percent) per annum.

'Loan Principal' means the amount provided by the Lender to or at the direction of the Borrower in the amount of $________ (________).

'Default Interest' means a rate which is 3% (three percent) per annum in excess of the applicable Interest Rate under this Agreement.

'Event of Default' means any of the events described in clause (5).

'Guarantor' means any person who has guaranteed the performance of the Borrower's obligations under this Agreement and includes the following person:

________

'Material Adverse Change' means any change in circumstances of the Borrower that the party knows, or should know, will materially affect its capacity to perform its obligations under this Agreement.

'Outstanding Amount' means the total of the Loan Principal together with any interest accrued, costs, and any other amounts owing to the Lender under this Agreement.

'Repayment Date' means the First Payment Date and the same day of each subsequent week thereafter, until the Outstanding Amount is paid in full.

(2) THE LOAN

(a) Subject to the terms of this Agreement, the Lender agrees to advance to the Borrower the Loan Principal on the Commencement Date.

(b) The Borrower must apply the Loan Principal solely for the following purpose: ________.

(c) The Borrower acknowledges that this loan is for business or investment purposes and not wholly or predominantly for personal, domestic or household purposes, and accordingly the National Consumer Credit Protection Act 2009 (Cth) does not apply to this Agreement.

(3) INTEREST AND REPAYMENT

(a) The Borrower shall pay the Outstanding Amount to the Lender in instalments, with each instalment due on or before each Repayment Date.

(b) Interest shall be payable by the Borrower on the Loan Principal, at the Interest Rate of ________% per annum (based on a 365 day year) compounded weekly.

(c) The Borrower shall make payment of fixed weekly instalments, each calendar week, for the period of ________ weeks or until the entire Outstanding Amount is paid in full. Each instalment shall be in the amount of $________ ("Instalment Amount").

(d) If any amount remains outstanding after ________ weeks then the Borrower shall continue making weekly payments of the Instalment Amount on or before each Repayment Date until the Outstanding Amount is fully repaid, except that the final payment shall be adjusted to reflect the exact amount outstanding if it is less than the Instalment Amount.

(e) The Borrower may repay the whole of the Outstanding Amount then outstanding at any time upon providing notice of its intention to do so to the other parties and receiving the consent of the Lender to such early repayment.

(f) All payments shall be made to the following account, or to such other account as the Lender may from time to time notify in writing: ________.

(g) Any payment made by the Borrower shall be applied by the Lender in the following order:

(I) firstly, towards the payment of any accrued interest;

(II) secondly, towards any costs, expenses or fees accrued in relation to this Agreement;

(III) thirdly, towards the Loan Principal; and

(IV) fourthly, as a prepayment towards future payments due in accordance with this Agreement.

(4) BORROWER'S UNDERTAKINGS

The Borrower provides the following undertakings to the Lender:

(a) to make no counter-claim or set-off against any payment due under this Agreement and make such payments on or before the date they fall due for payment without any deductions whatsoever; and

(b) to provide notice to the Lender of any Event of Default or Material Adverse Change.

(5) EVENT OF DEFAULT

(a) Each of the following events shall constitute an Event of Default:

(I) failure by the Borrower to comply with any of the covenants or obligations express or implied in this Agreement;

(II) failure by the Borrower in the due and punctual payment of any money as payment falls due under this Agreement;

(III) the Borrower, being a trustee at the Commencement Date of this Agreement, ceases to be the trustee;

(IV) the Borrower, being a corporation at the Commencement Date of this Agreement, goes into liquidation, has a receiver, administrator or controller appointed, or experiences a Material Adverse Change;

(V) the Borrower, being a natural person at the Commencement Date of this Agreement, becomes bankrupt, or enters into a debt agreement or personal insolvency agreement under the Bankruptcy Act 1966 (Cth);

(VI) the Borrower breaches any law, regulation, judgment, or administrative decision or decree, in circumstances where the Lender reasonably believes that breach will have an adverse effect on the Borrower's ability to meet its obligations under this Agreement.

(b) In the event that any one or more Events of Default shall occur, the Lender may, by notice in writing, require the Borrower to immediately repay the Outstanding Amount.

(6) DEFAULT INTEREST

(a) Where the Borrower fails to make payment of any money due under this Agreement on the date it falls due for payment, Default Interest shall accrue in relation to those overdue amounts.

(b) The Default Interest shall continue to accrue in relation to the overdue amount until the Borrower makes payment of the overdue amount together with any interest owing (including the Default Interest) in relation to that amount.

(c) The parties agree that the Default Interest represents a genuine pre-estimate of the loss likely to be suffered by the Lender as a result of late payment and does not constitute a penalty.

(d) The Borrower agrees, as an independent obligation not merging in any judgment, to pay interest on any judgment or order for the payment of all or any part of the money secured at either the rate payable under the judgment or at the Default Interest rate, whichever is greater.

(7) GUARANTEE AND INDEMNITY

(a) In consideration of the Lender providing the Loan Principal to the Borrower, the Guarantor unconditionally and irrevocably guarantees to the Lender the due and punctual performance by the Borrower of its obligations under this Agreement including the due and punctual payment of the Outstanding Amount.

(b) Where an Event of Default occurs or is committed by the Borrower, the Guarantor must:

(I) pay on demand any Outstanding Amount as directed by the Lender; and

(II) indemnify the Lender against any losses, liabilities or expenses (including legal costs and expenses on a full indemnity basis) that the Lender suffers or incurs (whether directly or indirectly) as a result of the Event of Default.

(c) The Guarantor's obligations shall be enforceable against the Guarantor without any obligation on the Lender to pursue any alternative remedy it may have against the Borrower.

(d) The Guarantor's obligations in this Agreement are continuing and shall survive the termination of this Agreement.

(e) The Guarantor's liability under this guarantee shall not be discharged or impaired by any time, indulgence, variation, release or other concession granted by the Lender to the Borrower, or by any other act, omission or thing which would, but for this provision, operate to release the Guarantor.

(f) The Guarantor acknowledges that, before executing this Agreement, the Guarantor has been advised to obtain, and has had the opportunity to obtain, independent legal and financial advice in relation to this guarantee.

(8) COSTS AND EXPENSES

(a) The Borrower shall pay to the Lender on demand all costs, charges and expenses (including legal costs and expenses on a full indemnity basis) incurred by the Lender in connection with the negotiation, preparation, execution and completion of this Agreement.

(b) The Borrower shall pay to the Lender on demand all costs, charges and expenses (including legal costs and expenses on a full indemnity basis) incurred by the Lender in connection with the enforcement of, or the preservation of any rights under, this Agreement, including any costs incurred in recovering any Outstanding Amount.

(c) The Borrower shall be responsible for the payment of any stamp duty, registration fees or other government charges payable in respect of this Agreement and any document executed pursuant to it.

(9) NOTICES

(a) Any notice required to be given under this Agreement shall be in writing and shall be delivered personally, sent by prepaid post or by email to the address of the relevant party set out in this Agreement, or to such other address as that party may from time to time notify to the other parties in writing.

(b) A notice shall be deemed to have been received: if delivered personally, at the time of delivery; if sent by prepaid post, two Business Days after the date of posting; and if sent by email, at the time of transmission, provided that no delivery failure notification is received by the sender.

(c) Any notice received or deemed to be received after 5.00pm on a Business Day, or on a day that is not a Business Day, shall be deemed to have been received on the next Business Day.

(10) GENERAL MATTERS

(a) Waiver: The exercise of any right or power under this Agreement may be exercised at the discretion of the party to which the benefit of that right or power accrues. The failure to exercise or delay in exercising any right or remedy shall not prevent its exercise. Nor shall a partial exercise of any right or power prevent a further exercise of that right or power.

(b) Amendments: No amendment to this Agreement shall be valid unless in writing and validly executed by the parties.

(c) Assignment: This Agreement shall be binding upon the parties' respective successors and lawful assigns, provided that a party may only assign its rights or obligations under this Agreement with the written consent of the other parties.

(d) Severability: If any provision of this Agreement is declared illegal or otherwise invalid or unenforceable, that provision shall be severed to the extent of that illegality, invalidity or unenforceability, without affecting the remaining provisions of this Agreement.

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(f) No Agency: Nothing in this Agreement shall be read as constituting or creating any partnership, joint venture or similar relationship between the parties.

(11) GOVERNING LAW AND JURISDICTION

This Agreement will be governed by and construed in accordance with the laws of the State of ________. The parties submit to the non-exclusive jurisdiction of the courts of the State of ________, including any courts that hear appeals from those courts.

(12) ENTIRE AGREEMENT

This Agreement constitutes the entire understanding between the parties relating to the subject matter of this document and shall replace all previous discussions, agreements or understandings between the parties relating to the subject matter of this document.

(13) INTERPRETATION

In the interpretation of this Agreement:

(a) words which denote the singular number shall include the plural (where relevant) and vice versa;

(b) words which refer to an individual or person shall include bodies corporate or corporations;

(c) words denoting one gender shall include all other genders;

(d) grammatical forms of defined words or phrases will have the corresponding meaning;

(e) if the day on which any act is to be done is a Saturday, Sunday or a public holiday in the place in which the act is to be done, then it must be done on the next Business Day;

(f) references to any party are intended to bind that party's executors, administrators and any permitted transferees;

(g) an obligation which binds more than one party binds them jointly and each of them severally; and

(h) headings are for convenience and do not affect the interpretation of this Agreement.

EXECUTED AS AN AGREEMENT ON THE FOLLOWING DATE:

________/________/________

LENDER EXECUTION:

Executed by ________:

____________________________________

Signature of Lender

____________________________________

Witness Signature

____________________________________

Witness Name (Please Print)

BORROWER EXECUTION:

Executed by ________:

____________________________________

Signature of Borrower

____________________________________

Witness Signature

____________________________________

Witness Name (Please Print)

GUARANTOR EXECUTION:

IMPORTANT NOTE TO GUARANTOR

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Executed by ________:

____________________________________

Signature of Guarantor

____________________________________

Witness Signature

____________________________________

Witness Name (Please Print)