The Loan Surety Agreement is a crucial document in South African secured lending practices, used when a third party (surety) agrees to guarantee the repayment obligations of a borrower. This agreement becomes necessary when a creditor requires additional security for a loan, often due to the principal debtor's insufficient credit history or assets. The document must comply with various South African legislation, particularly the National Credit Act 34 of 2005 and the Consumer Protection Act 68 of 2008. It typically includes detailed provisions regarding the nature and extent of the surety's liability, enforcement procedures, and protective clauses for all parties. The agreement is commonly used in both commercial and personal lending contexts, requiring careful consideration of the surety's financial position and the potential risks involved.
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1. Parties: Identification of the Creditor, Principal Debtor, and Surety with full legal names and details
2. Background: Context of the primary debt and reason for the suretyship arrangement
3. Definitions: Definitions of key terms used throughout the agreement
4. Principal Debt: Details of the primary loan agreement and debt being secured
5. Nature and Extent of Suretyship: Clear statement of the surety's obligations and extent of liability
6. Duration of Suretyship: Term of the suretyship and conditions for termination
7. Surety's Acknowledgments: Explicit acknowledgments by the surety regarding understanding of obligations
8. Rights of the Creditor: Creditor's rights in enforcing the suretyship
9. Warranties and Representations: Warranties given by the surety regarding capacity and authority
10. Default and Enforcement: Consequences of default and enforcement procedures
11. Notices and Domicilia: Communication procedures and chosen addresses for legal notices
12. General Terms: Standard contractual provisions including governing law and jurisdiction
13. Signature: Execution clause and signature blocks for all parties
1. Multiple Sureties: Additional provisions for cases involving more than one surety, including joint and several liability
2. Corporate Surety Provisions: Specific provisions required when the surety is a company or other legal entity
3. Spouse's Consent: Required when the surety is married in community of property
4. Security Provisions: Additional provisions where the surety provides additional security for their obligations
5. Renunciation of Benefits: Explicit renunciation of legal benefits available to sureties under South African law
6. Independent Advice Certificate: Confirmation that the surety has received independent legal advice
7. Compliance with National Credit Act: Additional provisions required when the agreement falls under the NCA
1. Primary Loan Agreement: Copy or summary of the main loan agreement being secured
2. Resolution: Corporate resolution where surety is a company
3. Asset Schedule: List of assets provided as additional security (if applicable)
4. Disclosure Schedule: Mandatory disclosures required under the National Credit Act
5. Independent Legal Advice Certificate: Signed certificate from legal advisor (if applicable)
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