The Guarantor in Loan Agreement is a crucial document in South African lending practices, typically used when additional security is required for a loan facility. This document is essential when a lender requires extra assurance beyond the borrower's own creditworthiness, particularly in high-value loans or where the borrower has limited credit history. The agreement must comply with South African legislation, including the National Credit Act and Financial Intelligence Centre Act, and requires careful drafting to ensure enforceability. It includes detailed provisions on the guarantee's scope, enforcement mechanisms, and the guarantor's obligations, while also incorporating necessary consumer protections required under South African law. The document is particularly relevant in commercial lending, property transactions, and corporate finance where personal or corporate guarantees are common requirements for securing significant loan amounts.
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1. Parties: Identification of the Creditor, Principal Debtor, and Guarantor with full legal names and details
2. Background: Context of the principal loan agreement and the need for guarantee
3. Definitions and Interpretation: Key terms used in the agreement, including 'Guaranteed Obligations', 'Principal Agreement', and interpretation rules
4. Guarantee: Core guarantee provisions, including the scope and nature of the guarantee (continuing, unconditional, etc.)
5. Duration and Extent of Guarantee: Term of the guarantee and maximum liability amount
6. Guarantor's Obligations: Detailed obligations, including payment on demand and maintaining the guarantee
7. Representations and Warranties: Guarantor's confirmations regarding capacity, authority, and understanding of obligations
8. Creditor's Rights: Rights of the creditor, including enforcement and recovery mechanisms
9. Demand and Payment: Process for making demands under the guarantee and payment requirements
10. Waiver of Defenses: Guarantor's waiver of common law defenses and beneficium exceptions
11. Costs and Expenses: Responsibility for legal and enforcement costs
12. Notices: Communication requirements and contact details
13. General Provisions: Standard clauses including governing law, jurisdiction, and severability
1. Security: Include when the guarantor provides additional security for the guarantee obligations
2. Multiple Guarantors: Include when there is more than one guarantor, defining joint and several liability
3. Corporate Guarantor Provisions: Include when the guarantor is a company, addressing authority and financial covenants
4. Assignment and Transfer: Include when parties want to allow for transfer of guarantee rights
5. Financial Reporting: Include when ongoing financial monitoring of the guarantor is required
6. Limit on Liability: Include when the guarantee is to be capped at a specific amount
7. Release Conditions: Include when specific conditions for releasing the guarantee are agreed
1. Principal Loan Agreement: Copy or key terms of the underlying loan agreement being guaranteed
2. Guarantor Resolution: Corporate resolution authorizing the guarantee (for corporate guarantors)
3. Form of Demand: Template for making formal demands under the guarantee
4. Security Details: Description of any security provided by the guarantor
5. Financial Information: Initial financial statements or net worth statement of the guarantor
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