CONTRACT OF LOAN (THE BORROWER BEING A JURISTIC PERSON) TABLE OF CONTENTS PARTICULARS OF LOAN CONTRACT OF LOAN...

Transcription

1 CONTRACT OF LOAN (THE BORROWER BEING A JURISTIC PERSON) TABLE OF CONTENTS TABLE OF CONTENTS.... PARTICULARS OF LOAN.... CONTRACT OF LOAN NATIONAL CREDIT ACT, NO. 34 OF INTERPRETATION LOAN INTEREST REPAYMENT OF LOAN AMOUNT SECURITY WARRANTIES BREACH AND ACCELERATION DOMICILIUM CITANDI ET EXECUTANDI AND NOTICES.... GENERAL... Disclaimer: Each commercial activity carries with it its own set of facts and needs, meaning that in most cases the use of a basic contract such as this is not appropriate. It is therefore strongly recommended, unless you are experienced and are able to adjust this contract to meet your specifications, that you seek legal advice before using this contract. Please note that neither SA Property Investors Network nor Bruno Simão Attorneys are rendering advice (legal or financial) by virtue of the sale of this contract. By purchasing this contract, you acknowledge the above and agree that you shall not hold SA Property Investors Network nor Bruno Simão Attorneys liable for any liability, loss, damage, charges, costs, expenses, and/or any demands or claims against you, from any cause whatsoever, including their negligence, that you may be held liable for, incur, suffer, sustain and/or pay, as a direct or indirect result of the purchase and use of this contract, and hereby agree that you shall at all times indemnify and hold SA Property Investors Network and Bruno Simão Attorneys harmless against any and all liability, loss, damage, charges, costs, expenses, and/or any demands or claims against them, from any cause whatsoever, including their negligence, that they may be held liable for, incur, suffer, sustain and/or pay, as a direct or indirect result of the purchase and use of this contract. Bruno Simão Attorneys info@brunosimaolaw.co.za (0) Page of 4

2 CONTRACT OF LOAN. PARTICULARS OF LOAN Registered/Full Name: Registration/Identity no.: Physical Address: : Postal Address: Address: Registered/Full Name: Registration/Identity no.: Physical Address: *: Postal Address: Address: The Lender s Banking Account Details: (individually and/or collectively hereinafter referred to as the Lender ) *please complete the particulars of Lender no. only if more than person is jointly lending the Loan Amount, otherwise delete. Registered Name: Registration no.: Physical Address: : Postal Address: Address: Registered Name: Registration no.: Physical Address: * : Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page of 4

3 Postal Address: Address: The Borrower s Banking Account Details: **The National Credit Act, no. 34 of 005 (clause 3 below): (individually and/or collectively hereinafter referred to as the Borrower ) The National Credit Act, no. 34 of 005, does not apply to this Agreement by virtue of the Borrower falling within the ambit of clause 3. below. The National Credit Act, no. 34 of 005, does not apply to this Agreement by virtue of the Borrower falling within the ambit of clause 3. below. *please complete the particulars of only if more than person is jointly borrowing the Loan Amount, otherwise delete. **please note that you may select multiple options. Furthermore, please note that this Agreement was not drafted with the intention of falling within the scope of the National Credit Act, no. 34 of 005, but rather to govern the relationship between the Lender and a Borrower as defined in clause 3 below. Figures: Loan Amount: R ( Rand) Interest Rate Per Annum: % ( per centum) *Type of Interest: Simple Compound *If Compound, Capitalisation of Interest: Daily Weekly Monthly Annually Total Interest: R ( Rand) Date: To Pay the Loan Amount to the Borrower (clause 5. below): To Repay the Loan Amount to the Lender (clause 7. below): **or the date of the Transfer, whichever is earlier. *please select only option. **please delete if not applicable. *Immovable Property with Full Title Ownership: Remaining Extent or Portion no.: Erf no.: Township: Measurement: Home Owners Association: Street Address: Together with all improvements thereon and all fixtures and fittings of a permanent nature (hereinafter referred to as the Property ) *please delete if not applicable. Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 3 of 4

4 Unit no.: Measurement: Garage no.: Parking no.: Sectional Scheme Name: Sectional Scheme no.: Erf no.: Township.: Door no.: Building: Street Address: *Immovable Property with Sectional Title Ownership: Together with all improvements thereon and all fixtures and fittings of a permanent nature, and including an undivided share in the common property of this Sectional Scheme *please delete if not applicable. (hereinafter referred to as the Property ) *Types of Security: Mortgage Bond (clause 8. below) Deed of Suretyship (clause 8. below) Attorney Management (clause 8.3 below) Security: **As security for the Loan Amount plus an Additional Amount of: ***Name of Surety: Name of Managing Attorneys: *Details: R ( Rand) *please note that you may select multiple options. As such, please make the selection/s clearly and provide the necessary details. In this respect: A Mortgage Bond is an additional document that must be drafted and registered against the Property in terms of the Deeds Registries Act, no. 47 of 937, and thus requires the services of an attorney; and A Deed of Suretyship is an additional document that must be drafted and signed and may thus require the services of an attorney. **please note that Section 5 of the Deeds Registries Act, no. 47 of 937, provides that in a Mortgage Bond in which it is stipulated that it is intended to secure future debts, such as certain costs, charges, life assurance or endowment premiums, expenses, and future debts generally, the additional amount must be disclosed as an amount beyond which such debts must not be secured by the Mortgage Bond. Please seek professional advice if uncertain. ***please note that a Surety may, but is not obliged to, bind himself/herself/itself to furnish security in terms of the Deed of Suretyship such as his/her/its own movable or immovable property Warranties: Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 4 of 4

5 Special Terms:. CONTRACT OF LOAN This Agreement is entered into by and between the Lender and the Borrower, the Lender hereby lending the Loan Amount to the Borrower who hereby borrows the Loan Amount, upon the following terms and conditions of this Agreement to which the parties are bound. 3. NATIONAL CREDIT ACT, NO. 34 OF 005 It is recorded that the National Credit Act, no. 34 of 005, does not apply to this Agreement by virtue of: 3.. Section 4()(a)(i) of the aforesaid Act, the Borrower being a juristic person whose asset value or annual turnover, together with the combined asset value or annual turnover of all related juristic persons, at the time that this Agreement was concluded, equals or exceeds the *threshold value determined by the Minister; and/or 3.. Section 4()(a)(i) of the aforesaid Act, this Agreement comprising a **large agreement in terms of which the consumer, namely, the Borrower, is a juristic person, irrespective of whether its asset value or annual turnover is, at the time that this Agreement was concluded, below the *threshold value determined by the Minister. *R,000,000.00, but subject to change from time to time. Seek professional advice if uncertain. **A credit agreement is a large agreement if it is a mortgage agreement or a certain other credit transaction, such as this Agreement, and the principal debt under that transaction or guarantee is equal to or exceeds R50,000.00, but subject to change from time to time. Seek professional advice if uncertain. 4. INTERPRETATION 4.. In this Agreement, unless the context clearly indicates a contrary intention: 4... an expression which denotes: 4... any gender includes the other genders; 4... a natural person includes an artificial or juristic person and vice versa; and the singular includes the plural and vice versa, Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 5 of 4

6 4... the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings unless otherwise indicated from the context: 4... "this Agreement": This Contract of Loan, together with all of its annexures and schedules, as amended from time to time; 4... Effective Date : The date upon which the Loan Amount stipulated in clause above is paid, either by deposit or transfer, into and reflects in the Borrower s Banking Account, regardless of the date upon which the parties sign this Agreement; "Signature Date": The date upon which this Agreement is signed by the signatory that signs it last in time; Capital Flip Sale : The sale or any alienation of the Property by the Borrower to any purchaser or person, respectively, irrespective of profit or loss; "Transfer": The registration of the Transfer of the Property pursuant to the Capital Flip Sale in accordance with the provisions of the Deeds Registries Act, no. 47 of 937, as amended; any reference to any Act, regulation or other legislation shall be a reference to that Act, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time; if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement; where any term is defined within a particular clause other than this clause 4, that term shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement; where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a business day, the last day shall be deemed to be the next succeeding day which is a business day; any reference to days (other than a reference to business days), months or years shall be a reference to calendar days, months or years, as the case may be; the use of the word "including" followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule (a rule of interpretation that states that any general wording is restricted to example/s of the same type as the listed example/s) shall not be applied in the interpretation of such general wording or such specific example/s; and 4.. Clause headings are for convenience and shall not be used in the interpretation of this Agreement. Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 6 of 4

7 4.3. The terms of this Agreement having been negotiated, the contra proferentem rule (a rule of interpretation that states that any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause be included) shall not be applied in the interpretation of this Agreement. 5. LOAN 5.. The Lender lends and advances the Loan Amount stipulated in clause above to the Borrower who borrows the Loan Amount. 5.. The Lender shall on or before the date stipulated in clause above to Pay the Loan Amount to the Borrower, pay to the Borrower, into the Borrower s Banking Account stipulated in clause above, the Loan Amount, by which date the Loan Amount must reflect in the Borrower s Banking Account The Parties hereby agree that this Agreement will be of force and effect from the Signature Date. 6. INTEREST 6.. The Loan Amount, or any outstanding portion thereof, shall accrue Interest and the Borrower shall pay such Interest on the Loan Amount, or any outstanding portion thereof, at the Interest Rate stipulated in clause above, Compounded and Capitalised accordingly if and as selected and thus stipulated in clause above, calculated from the Effective Date until the date of the final repayment of the Loan Amount and Interest, both days included. 6.. Any payments made by the Borrower shall first be allocated towards Interest and only thereafter to the Loan Amount As such, the Lender hereby certifies that the full amount of Interest calculated at the Interest Rate stipulated in clause above and over the period of the Loan amounts to the Total Interest stipulated in clause above. 7. REPAYMENT OF LOAN AMOUNT 7.. The Borrower undertakes to pay to the Lender the Loan Amount and Interest in full, as well as all other amounts owing in terms of this Agreement, in one instalment on or before either: 7... the date stipulated in clause above to Repay the Loan Amount to the Lender; or 7... the date of the Transfer, Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 7 of 4

8 whichever is earlier and if contemplated in clause above. 7.. The Borrower undertakes to make all payments due in terms of this Agreement into the Lender s banking account, as stipulated in clause above All payments must be made free of any deduction, including but not limited to bank and other charges, and/or set-off In the event of more than (one) person jointly borrowing the Loan Amount, all such persons comprising the Borrower hereby agree and acknowledge that they are co-principal debtors and jointly and severally liable to the Lender, the one paying and the other to be absolved, for the Loan Amount and Interest as well as any other indebtedness and obligations of the Borrower in favour of the Lender in terms of this Agreement Notwithstanding any other provision to the contrary contained in this Agreement, the Loan Amount, together with all Interest accrued thereon, shall become immediately due and payable in full by the Borrower to the Lender upon the death or sequestration of or an act of insolvency by the Borrower, or any such person or persons comprising the Borrower. 8. SECURITY 8.. *Mortgage Bond 8... On or before the Effective Date, or an extended period that the Lender may, in his/her/its sole discretion, stipulate in writing, the Borrower shall cause a covering Mortgage Bond to be registered in favour of the Lender over the Property as security for the payment by the Borrower of the Loan Amount, all Interest claimable from the Borrower, the costs of preserving and realising the Property, fire insurance premiums and cost of notice, and also other costs, charges, life assurance or endowment premiums, expenses, and future debts generally, which may be claimable from the Borrower under this Agreement and the Mortgage Bond, and which are secured up to an amount not exceeding the Loan Amount plus the Additional Amount, as stipulated in clause above Notwithstanding any other provision to the contrary contained in this Agreement, the Lender shall not be under any obligation to pay to the Borrower, as contemplated in clause 5. above, the Loan Amount until such a time as the aforesaid covering Mortgage Bond is registered. Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 8 of 4

9 8..3. All costs whatsoever, including attorneys fees and disbursements, necessary for the drafting and registration of the aforesaid covering mortgage bond, shall be borne by the Borrower. Moreover, in the event of the mortgage bond not being registered due to the Borrower s actions, the Borrower shall be obliged to pay all such costs incurred. *only if and as selected and thus stipulated in clause above. 8.. *Deed of Suretyship 8... On or before the Effective Date, or an extended period that the Lender may, in his/her/its sole discretion, stipulate in writing, the Borrower shall cause a Deed of Suretyship to be concluded between the Surety stipulated in clause above and the Lender, binding the Surety as Surety for and co-principal debtor, jointly and severally, with the Borrower to the Lender for the due and punctual performance by the Borrower of all its obligations in terms of this Agreement to the Lender whether presently due, owing and payable or becoming due, owing and payable in the future Notwithstanding any other provision to the contrary contained in this Agreement, the Lender shall not be under any obligation to pay to the Borrower, as contemplated in clause 5. above, the Loan Amount until such a time as the aforesaid Deed of Suretyship is concluded All costs whatsoever, including attorneys fees and disbursements, necessary for the drafting of the aforesaid Deed of Suretyship, shall be borne by the Borrower. Moreover, in the event of the Deed of Suretyship not being concluded due to the Borrower s or the Surety s actions, the Borrower shall be obliged to pay all such costs incurred. *only if and as selected and thus stipulated in clause above *Attorney Management The parties agree that the Managing Attorneys stipulated in clause above, or their affiliate, shall undertake the Transfer of the Property pursuant to the Capital Flip Sale As such, the Borrower hereby authorises and irrevocably instructs the Managing Attorneys, or their affiliates, to pay to the Lender, from the proceeds of the Capital Flip Sale, the Loan Amount and Interest, before any payment is made to the Borrower. *only if and as selected and thus stipulated in clause above. 9. WARRANTIES 9.. The Lender and all such persons comprising the Borrower warrant that each has the necessary legal capacity to act in concluding this Agreement and performing in terms thereof, and that any consent that may be necessary, has been obtained. Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 9 of 4

10 9.. The Lender and Borrower acknowledge that the Warranties stipulated in clause above were given to each other with regard to the Loan and that apart from such warranties, the Lender and Borrower acknowledge that no other Warranties were made. 0. BREACH AND ACCELERATION 0.. Should the Borrower breach any of its obligations or warranties in terms of this Agreement and/or fail to make any payment on the due date, the Lender shall be entitled, but not obliged, to claim immediate payment by the Borrower of the full balance of the Loan Amount together with Interest up to the date of payment. 0.. In order for the Lender to enforce the acceleration clause in terms of clause 0. above, the Lender must first give written notice to the Borrower calling upon the Borrower to remedy it s breach or make payment within 7 (seven) days, failing which the Lender shall be so entitled, without prejudice to any rights which the Lender may have in terms of this Agreement or at law, including any right to claim damages, to enforce the acceleration clause and claim payment of whatever is due in terms of this Agreement by way of legal action The Lender reserves the right to terminate this Agreement after the aforesaid notice is given, if the Borrower defaults in making any of the payments due in terms of this Agreement All costs, charges and/or expenses of whatsoever nature which may be incurred by the Lender in enforcing his/her/its rights in terms of this Agreement, including, without limitation, any tracing costs, expert third party s costs and/or any legal costs incurred on a scale as between attorney and own client together with collection commission, irrespective of whether any action has been instituted or not, shall be recoverable from the Borrower A certificate duly signed by the Lender shall constitute full and conclusive proof of the nature and extent of the indebtedness of Borrower to the Lender as well as of all other issues related thereto, such as, but not limited to, the Interest Rate applicable thereto and/or the dates over which such Interest accrues. Such certificate shall be deemed to be a liquid document and same shall be sufficient to obtain a judgment against the Borrower in any competent Court of law The debtor acknowledges that any relaxation or indulgence granted by the Lender to the Borrower and in particular, but not limited to, the Lender not enforcing the acceleration clause or accepting any payment due in terms of this Agreement after the due date, shall not be construed as a waiver of any of the Lender s rights in terms hereof nor shall it constitute a novation. Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page 0 of 4

11 . DOMICILIUM CITANDI ET EXECUTANDI AND NOTICES.. The parties choose their respective domicilium citandi et executandi (hereinafter referred to as "Domicilium") for all purposes relating to this Agreement, including the giving of any notice and the serving of any process, as their respective Physical Address (hereinafter referred to as the Physical Domicilium ), Postal Address (hereinafter referred to as the Postal Domicilium ) and Address (hereinafter referred to as the Domicilium ) stipulated in clause above... Either party shall be entitled from time to time, by giving written notice to the other, to vary its Physical Domicilium to any other Physical Address (not being a post office box or poste restante) within the Republic of South Africa, to vary its Postal Domicilium to any other Postal Address within the Republic of South Africa and to vary its Domicilium to any other Address..3. Any notice given by either party to/on the other (hereinafter referred to as "the Addressee") which is:.3.. delivered by hand between the hours of 08h00 and 7h00 on any business day to the Addressee's Physical Domicilium, for the time being, shall be deemed to have been received by the Addressee at the time of delivery;.3.. posted by prepaid registered post to the Addressee's Postal Domicilium, for the time being, shall be deemed (unless the contrary is proved by the Addressee) to have been received by the Addressee on the 4 th (fourth) day after the date of posting; and.3.3. successfully transmitted by to the Addressee's Domicilium, for the time being, shall be deemed (unless the contrary is proved by the Addressee) to have been received by the Addressee at the time of successful transmission thereof..4. This clause shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the Addressee other than by a method referred to in this clause..5. Any notice in terms of or in connection with this Agreement shall be valid and effective only if in writing and if received or deemed to be received by the Addressee.. GENERAL.. The respective costs (together with VAT thereon, if applicable) of and incidental to the negotiation and preparation of this Agreement incurred by each party shall be borne and paid by that party, each party effectively paying their own costs... This Agreement constitutes the sole record of the Agreement between the parties in relation to the subject matter hereof. Neither party shall be bound by any express, tacit or implied term, Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page of 4

12 representation, Warranty, promise or the like not recorded herein. This Agreement supersedes and replaces all prior commitments, undertakings or representations, whether oral or written, between the parties in respect of the subject matter hereof..3. Without prejudice to any other provision of this Agreement, any successor-in-title, including any executor, heir, liquidator, judicial manager, curator or trustee, of either party shall be bound by this Agreement..4. Should any provision of this Agreement be, or be retrospectively, rendered unlawful, then that unlawful provision shall only be deemed to be modified and interpreted to the extent and in the manner necessary to render it consistent with the enactment rendering it unlawful or if such modification or interpretation is impossible, then such provision shall be deemed to be severable from the remaining provisions hereof and thereby considered pro non scripto, while the remainder of the terms and conditions of this Agreement will remain valid and binding..5. The nullity, cancellation or other termination of this Agreement shall not affect those provisions of this Agreement as expressly provide that they will operate after such nullity, cancellation or other termination or which of necessity must continue to endure after such nullity, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation..6. No amendment, variation, addition to, deletion from, novation, consensual cancellation, or waiver of this Agreement or any provision of this Agreement shall be binding upon the Parties unless reduced to writing and signed by or on behalf of the Parties, and any such waiver will only be effective in the specific instance and for the given purpose..7. No indulgence or extension of time which either Party may grant to the other, nor any failure or delay on the part of either Party in exercising any right, nor any single or partial exercise of any right by either Party, shall, in any way, prejudice the grantor, constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right. Bruno Simão Attorneys bruno@brunosimaolaw.co.za (0) Page of 4

13 THUS done and signed at on this day of in the presence of the undersigned witnesses for and on behalf of the, the signatory hereby warranting his/her authority to do so, As witnesses:.. LENDER NO. *THUS done and signed at on this day of in the presence of the undersigned witnesses for and on behalf of the, the signatory hereby warranting his/her authority to do so, As witnesses:.. LENDER NO. *Delete if not applicable THUS done and signed at on this day of in the presence of the undersigned witnesses for and on behalf of the, the signatory hereby warranting his/her authority to do so, As witnesses:.. BORROWER NO. Bruno Simão Attorneys (0) Page 3 of 4

14 *THUS done and signed at on this day of in the presence of the undersigned witnesses for and on behalf of the, the signatory hereby warranting his/her authority to do so, As witnesses:.. BORROWER NO. *Delete if not applicable Bruno Simão Attorneys (0) Page 4 of 4