Uploaded by: Betty Cosper at February 14 2018 03:50:07.
There are a number of issues that need to be addressed in order for a lender to enforce its security, such as: The loan agreement must contain a right of enforcement (including detailed provisions regarding when and how a lender can enforce its security). Ideally the enforcement provisions should be tailored to reflect the nature of the secured asset. Then the lender must formally demand repayment. There must be some agreement as to how the lender takes possession of the secured assets (or in some cases, ownership must pass in order for the security to be valid – for example, in the case of a legal mortgage of shares). The loan agreement must contain a power of sale in relation to the secured assets. The security may be invalid unless registered at Companies House and in the borrower’s company registers. If an individual or partnership provides security over chattels, the requirements of the rather arcane Bills of Sale Act (1878) must be complied with. In view of the complexity of taking security, you are advised to take legal advice to ensure that the proposed security is enforceable in the event of default in repayment.
A loan agreement doesn’t just prevent the lender from being “cheated”, it clarifies the terms of the loan and protects both parties. You’ll notice several things when browsing a sample loan agreement. A free loan agreement template clearly defines all parts of the loan so there are no misunderstandings later on.
While these may not be things that lenders want to consider when loaning to someone they trust, it is important to protect both parties when lending money. If the person borrowing the money will not be able to pay it back for several months, they might feel more comfortable with the protection of a loan agreement template that states that prior to the exchange of funds. Filling out and signing a free loan agreement template takes very little time and effort, but can prevent many legal and personal problems later on.
If a Lender is a company, and the Loan is being provided to a shareholder of that company, parties should be aware of division 7A of the Income Tax Assessment Act 1936 (Cth). Where the parties believe that division 7A applies to the Loan, they may wish to use an alternative agreement – the Division 7A Loan Agreement.
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