Loan Agreements & Debenture Agreements

Banks and payday lenders are far from the only organisations that offer loans these days. In the current climate of strict lending criteria people are turning to other avenues to obtain much credit when a need arises. If your business is in a position where it is considering giving a loan, perhaps to a member of staff or another party, it is incredibly important to ensure a Loan Agreement is drafted correctly and in place. This will help to avoid any misunderstandings over the terms of the loan and ensure your business is protected against both expected and unforeseen risks and is enforceable in the event of an issue.

If you are providing a loan to another party and want to make sure you are legally protected but would prefer to avoid the cost of having a solicitor draw up the agreement there are legal templates available that act as a cost effective solution. These are comprehensive, legally binding and completely up to date with current UK law. Costing as little as £13 they can be an economical alternative to costly legal representation.

A Loan Agreement needs to cover a number of different aspects in order to be fit for purpose. This includes the amount, purpose, rate of interest, repayment schedule, any applicable guarantees, costs and what happens in the event of a default. These are just a few of the clauses that need to be part of the agreement, but there are a number of others.

In addition to the Loan Agreement you will also need a Debenture Agreement. This is a document that will protect the sum your business is advancing by providing security. The security is provided by the borrower and the Debenture Agreement details the charge that will be taken as security for the sum that is being borrowed.

When a company takes security in the UK it comes with certain requirements. It has to be registered at Companies House and if land is involved it may also need to be registered at the Land Registry. Because the business that is acting as a lender has a hold or charge over the asset, their interest must be registered so that it cannot be sold without their knowledge or agreement. This is important as it protects the lender. Also, if the borrower was to be declared insolvent at some point the Debenture Agreement would ensure the lender had rights as a creditor. A copy of the Debenture Agreement needs to be sent to Companies House and the Land Registry within 21 days of the security being taken. In addition, Companies House will want to receive a copy of the Loan Agreement and the Form MR01.

Further information on both Loan Agreements and Debenture Agreements can be found at The Legal Stop – an online business providing high quality affordable legal and business document templates.

Pari Passu Clause in a Debt Instrument

Pari Passu is a Latin phrase which means ‘equal footstep’ or ‘equal footing’. In the legal sense, the term is used in the context of ‘proportionally; at an equal pace; without preference’.

In terms of debt instruments, Pari Passu can refer to loans, bonds and some types of securities which have an equal right of payment or level of seniority. In other words, the phrase is used to describe similar ranking of securities or lenders.

In a loan agreement the Pari Passu clause is a covenant that loans and securities ‘rank pari passu’ amid all the other unsecured debt of the borrower. The clause is used in the context of unsecured debt securities which are said to rank equally with each other or with other unsecured debts.

The Pari Passu clause requires the borrower to ensure that the lender’s rights under the loan agreement will, at all times, rank at least equally with all of the borrower’s other unsecured and unsubordinated obligations so that the lender’s share of the borrower’s assets in the event of its liquidation will be equal to that of all other unsecured and unsubordinated creditors.

Please note that the Pari Passu clause applies even in secured facilities notwithstanding that is refers to unsecured indebtedness. It is an assurance that the lender’s rights will, if the security fails, rank Pari Passu (equally) with the rights of the borrower’s unsecured creditors and the clause applies to existing as well as future obligations. Its relevance comes if there is a shortfall in the security on enforcement or if the security is for any reason defective.

Generally in a loan agreement a Pari Passu clause prevents the borrower from incurring obligations to other creditors that rank legally senior to the loan agreement containing the clause. Thus, the purpose of the Pari Passu clause is to ensure that the borrower does not have, nor will it subsequently create, a class of creditors whose claims against the borrower will rank legally senior to the indebtedness represented by the loan agreement.

The Pari Passu clause is a companion to the Negative Pledge clause. The Negative Pledge clause is an undertaking by the borrower not to create any security over its assets. Both clauses are fundamentally important covenants usually found in loan agreements. Whilst the Negative Pledge ensures that the lender’s right to repayment is not subordinated to secured creditors, a Pari Passu clause tries to ensure that the lender is not subordinated to unsecure creditors.

In summary, the Negative Pledge and the Pari Passu clause are very important clauses that should be included in every loan agreement in order to ensure that the loan is not subordinated to another lender on insolvency.

 

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In our portfolio of templates we also provide debt instruments with a Pari Passu clause: