Loan agreement: company; secured on financial instruments

An agreement between a lender, who may be an individual or a corporate body, and a borrower, who is a company. Loan secured on shares, intellectual property rights or other intangible property. Securities may be in hard or soft copy, or both. Also secured by guarantor. Very strong provisions to protect the lender. Options for alternative repayment provisions and lender actions if borrower defaults.
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  • Plain English makes editing easy
  • Guidance notes included
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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 Irish 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 Consumer Credit Act 1995, this agreement is not suitable for companies in the business of lending or providing credit to consumers.

The registration of mortgages and charges is governed by section 99 Companies Act 1963, as amended by section 122 Companies Act 1990. Section 99 provides that the prescribed particulars of a charge verified in the prescribed manner, must be delivered to, or received by, the Companies Registration Office (CRO) for registration, within 21 days of the date of creation of the charge. No extension of time for registration can be given by the CRO. Consequently, registration cannot be effected where applications have been received by the CRO outside the 21 day time limit, or where amendments or alterations have been made outside that time limit, to particulars lodged within the time limit.

A charge by a Company must be registered in the CRO within 21 days. Failure to register the charge within 21 days of its creation has the effect of making the charge void against a liquidator of the company and any creditor of the company.

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:

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.
Draftsman

This document was written by a solicitor for Net Lawman. It complies with current Irish law.

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