Loan contracts generally have the following important clauses:
1. Use of the loan
The borrower shall use the loan for the agreed purpose and shall not use it for illegal purposes. The purpose of the loan agreed in the loan contract shall not violate the provisions of the state on restricting operation, franchising and prohibiting operation by laws and administrative regulations.
Clarifying this clause can protect the borrower's right to use funds; For lenders, it can monitor the flow of funds, ensure the return of funds and control risks.
Reasons for restricting the use of the loan: First, if the borrower uses the loan for illegal purposes and violates the prohibitive norms of national laws and administrative regulations, the loan contract is invalid. Even if the lender is not aware of this illegal use when using the loan, once the lender knows this illegal use, it must stop the borrower from continuing to withdraw money. Secondly, restricting the use of loans is to ensure the source of repayment funds. If the loan is not used according to the agreed purpose, the borrower may lose the repayment ability due to improper operation. In addition, the internal operating policies of lending banks may have restrictions on the industries or departments that issue loans, and government regulations and decrees sometimes have similar provisions. Finally, restricting the use of loans may also be because it involves the interests of third parties. For example, in export credit projects, the use of loans is limited to specific payment targets.
The General Rules for Loans also stipulates the following restrictions on the use of loans:
(1) The borrower shall not use the loan to engage in equity investment, unless otherwise stipulated by the state;
(2) The borrower shall not use the loan to engage in securities and futures speculation;
(three) except for borrowers who have obtained real estate qualifications according to law, they shall not use loans to operate real estate business; Borrowers who have obtained real estate business qualifications according to law shall not use loans to engage in real estate speculation;
(4) The borrower shall not borrow loans to obtain illegal income.
2. Currency and amount of the loan
The currency and quantity of the loan refers to the quantity clause in the loan contract, which is the specific currency and quantity provided by the lender to the borrower. This is the main basis for calculating loan interest.
There are complex legal problems in the composition of loan price of foreign currency loans, which lawyers should be familiar with, but they do not belong to the scope of discussion in this guide.
3. Loan type
According to different lenders, it can be divided into self-operated loans, entrusted loans and specific loans.
(1) Self-operated loans refer to loans independently issued by the lender with funds raised by legal means, with risks borne by the lender and principal and interest recovered by the lender.
(2) Entrusted loan refers to the loan that the lender issues, supervises the use and assists to recover on behalf of the principal according to the loan object, purpose, amount, term and interest rate determined by the principal. The lender (trustee) only charges the handling fee and does not bear the loan risk.
(3) Special loans refer to loans granted by wholly state-owned commercial banks after taking corresponding remedial measures for possible losses caused by loans with the approval of the State Council. Wholly state-owned banks refer to China Industrial and Commercial Bank, China Agricultural Bank, China Bank and China Construction Bank.
According to the different repayment periods, it can be divided into short-term loans, medium-term loans and long-term loans.
(1) Short-term loans refer to loans with a loan term of 1 year (inclusive). Short-term loans are flexible, with short term, strong liquidity, quick turnover and large demand. Judging from the specific practices of financial institutions, there are mainly six months and 1 year. Short-term loans are one of the most important businesses of financial institutions.
(2) Medium-term loans refer to loans with a loan term of more than 1 year (excluding 1 year) to less than 5 years (including 5 years).
(3) Long-term loans refer to loans with a loan term of more than 5 years (excluding 5 years).
According to the security of the loan, it can be divided into credit loan, secured loan and bill discount.
(1) The so-called credit loan means that the borrower can withdraw the loan from the bank completely based on his own credit without providing collateral.
(2) The secured loan refers to the loan that is subordinated to the loan contract by the secured contract, including secured loan, mortgage loan and pledge loan. Guaranteed loan refers to the loan issued by a third party in the form of guarantee as stipulated in the Guarantee Law, which promises that the borrower will bear the general guarantee liability or joint liability according to the agreement when the loan cannot be repaid. Mortgage loan refers to the loan issued by the borrower or the third party's property as collateral according to the mortgage method stipulated in the Guarantee Law. Pledged loan refers to the loan that is issued with the movable property or rights of the borrower or the third party as the pledge according to the pledge method stipulated in the Guarantee Law.
(3) Bill discount refers to the loan issued by the lender by purchasing the unexpired commercial paper of the borrower.
The classification of the above loans is cross, and the loan types in general loan contracts will involve the above types at the same time. In loan practice, it is of little significance to classify loan types intuitively and mechanically, mainly through this difference to correctly regulate loan behavior.
4. Term of loan
Refers to the borrower's production and operation cycle, cash flow, repayment ability and the lender's capital supply ability, which are determined by the borrower and the lender through consultation and specified in the loan contract.
The longest term of self-operated loans generally does not exceed 65,438+00 years. If it has been more than 65,438+00 years, it shall be reported to the China Banking Regulatory Authority for the record. The longest discount period of bill discount shall not exceed 6 months, from the discount date to the maturity date of the bill.
If the borrower fails to repay the loan on time, it shall apply to the lender for extension before the loan expires. Whether the extension is decided by the lender. When applying for extension of secured loan, mortgage loan or pledged loan, the guarantor, mortgagor and pledgor shall also issue a written consent certificate. If there is an agreement, it shall be implemented in accordance with the agreement.
The cumulative extension period of short-term loans shall not exceed the original loan period; The cumulative extension period of medium-term loans shall not exceed half of the original loan period; The cumulative extension period of long-term loans shall not exceed 3 years. Unless otherwise stipulated by the state. If the borrower fails to apply for extension or the application for extension is not approved, the loan will be transferred to the overdue loan account from the day after the maturity date.
5. Loan interest
The lender shall determine the interest rate of each loan according to the upper and lower limits of the benchmark interest rate stipulated by the China Banking Regulatory Authority, and specify it in the loan contract.
Short-term loans (with a term below 1 year, including 1 year) shall bear interest according to the legal loan interest rate of the corresponding grade on the signing date of the loan contract. During the loan contract period, in case of interest rate adjustment, interest will not be calculated by installments. Short-term loans are settled quarterly, and the 20th day of the last month of each quarter is the settlement date; If the interest is settled on a monthly basis, the 20th of each month is the interest settlement date. The specific interest settlement method shall be determined by the borrower and the lender through consultation. Interest that cannot be paid on schedule during the loan period shall be compounded quarterly or monthly according to the loan contract interest rate, and after loans overdue, at the default interest rate.
The interest rate for medium and long-term loans (with a term greater than 1 year) can also be set for one year. The loan (including all the funds that should be allocated by installments within 65,438+0 years from the effective date of the loan contract) shall bear interest according to the legal loan interest rate of the corresponding grade on the effective date of the loan contract, and the interest rate of the next year shall be determined every 65,438+0 years (the first loan shall be allocated by installments). Medium-and long-term loans are settled quarterly, and the 20th day at the end of each quarter is the settlement date. The interest that cannot be paid on schedule during the loan period shall be compounded quarterly according to the contract interest rate, and after loans overdue, it shall be compounded at the default interest rate.
The discount of bills is based on the discount rate determined on the discount date, and interest is charged at the time of discount.
The trust loan interest rate shall be determined by the entrusting parties through consultation within the range of not exceeding the legal loan interest rate level (including floating) of the same period and grade; The lease loan interest rate shall be subject to the legal loan interest rate (including floating) of the same grade in the same period.
Loan extension, cumulative calculation of term. When the cumulative term reaches the new interest rate term grade, interest will be calculated at the same grade interest rate listed on the extension date from the date of extension; If the new term grade cannot be reached, the interest will be calculated at the original grade interest rate on the extension date.
The calculation of loan interest is usually "from beginning to end", that is, interest is calculated on the date of withdrawal and not on the date of repayment. The base number of days per year is fixed at 360 days, and the daily interest rate is calculated from the annual interest rate. The interest-bearing days shall be based on the actual days.
After the loan is paid off, the profit will be paid off together with the principal.
6. Guarantee clause
For secured loans, guarantee clauses can be provided in the loan contract, or a separate guarantee contract can be signed.
The guarantee contract is a subsidiary contract of the loan contract. In order to prevent the guarantee from falling through, both parties may stipulate in the loan contract or guarantee contract that if the master contract is confirmed to be invalid, the subordinate contract is still valid.
Step 7 retreat
(1) The loan contract shall stipulate the preconditions that the borrower should have when withdrawing money.
Not all loan contracts are executed immediately after signing. Some loans can only be implemented after certain conditions stipulated in the contract are met. Even after the loan is executed, every time the loan is withdrawn, it is usually necessary to meet further conditions. These conditions are prerequisites for withdrawal. The content of preconditions can be different according to different situations, which can generally be divided into two categories: one is the preconditions involving all obligations under the loan contract; The other is the prerequisite for each loan.
The purpose of setting preconditions related to all obligations under the loan contract is to make the lender temporarily stop the obligation to give loans before receiving satisfactory written evidence and relevant documents to prove that all legal matters related to the loan contract have been properly arranged and the required guarantees have been implemented. This is very important to protect the interests of lenders. These prerequisites usually include:
① Provide the borrower's business license and organizational documents, such as the articles of association;
(2) Provide all documents required by the borrower to borrow money, including resolutions of shareholders' meeting or board of directors, power of attorney, etc. ;
③ According to the agreement, the borrower shall open an account at the lender's business place;
(4) provide lawyer's advice;
⑤ Provide relevant project agreements;
⑥ Complete the agreed guarantee procedures and supervision procedures; Upon verification, the lender confirms that the conclusion of the guarantee contract is the true intention of the guarantor;
⑦ Submit the withdrawal notice and the power of attorney for withdrawal;
(8) The statements and guarantees made by the borrower when signing the loan contract are still correct on the date of withdrawal, and there are no major adverse changes;
Pet-name ruby The borrower has not had any event of default, or other events that may constitute default.
The above-mentioned preconditions for withdrawal that can be agreed in the contract are not the conditions for the establishment of the contract, but the conditions that the borrower should have when withdrawing money under the premise that the contract has been established. As long as the borrower meets the agreed conditions, the lender is obliged to lend money.
(2) Loan contracts usually stipulate the specific time limit for the borrower to withdraw money, and stipulate that the borrower shall notify the lender a few days before withdrawing money. The loan contract generally does not stipulate the borrower's withdrawal obligation, but only grants the borrower the right to withdraw money when it needs funds. However, if the borrower does not withdraw the loan at that time, the lender will usually ask the borrower to pay a loan promised by the lender to compensate the lender for the loss caused by the suspension of the promised loan funds.
(3) If the lender fails to grant the loan to the borrower as agreed in the loan contract, the borrower may demand damages, but generally cannot demand actual performance. The calculation principle of damages is the loss that can be reasonably foreseen due to breach of contract at the time of contracting.
8. Repayment
The loan contract generally has specific provisions on the time limit and the way for the borrower to repay the loan. The borrower shall repay the loan principal and interest in full and on time in accordance with the provisions of the loan contract. The lender shall issue a notice of repayment of principal and interest to the borrower before the short-term loan expires 1 week and the medium-and long-term loan expires 1 month; The borrower shall prepare funds in time and repay the principal and interest on time.
9. Advance payment
Generally, there are some restrictions on this clause in the loan contract, and the provisions are relatively detailed, mainly because the lender can guarantee the expected return on its investment. The specific content is mainly stipulated in the following aspects:
(1) Voluntary prepayment is generally applicable to prepayment agreed by both parties, and the lender may require the borrower to pay a certain percentage of fees according to the circumstances;
(2) Compulsory prepayment is generally applicable to the default sanctions imposed by the borrower's default or expected default;
(3) Voluntary cancellation of the credit line;
(4) Repayment in advance and cancellation of lines due to specific reasons such as tax, market disorder and increased cost.
10. representations and warranties
The borrower's understanding of the facts related to the loan, including its legal status, financial status and business activities, is the basic basis for the lender to evaluate the security and profitability of the loan transaction. Any untrue, inaccurate or incomplete explanation of the borrower's above situation, whether intentional or negligent, will make the bank draw a wrong conclusion and make a loan decision against its true meaning. Therefore, strict representation and guarantee obligations are usually stipulated in the loan contract, that is, the borrower is required to make representations and guarantees on its legal status, signing ability, transaction authorization, government approval, litigation status, asset status, financial status, business operation, project contract status, breach of contract and so on. And these statements and guarantees are required not only to be made on the signing date of the loan contract, but also to be made repeatedly on the withdrawal date. Violation of statements and guarantees will be regarded as an event of default, and the bank will further announce the early maturity of the loan and enforce the relevant guarantees.
Lawyers should understand the enterprise economic evaluation index system for evaluating borrowers, and can make specific financial agreements for borrowers according to the financial objectives and measurement standards promulgated by China in the contract terms.
Any uncertain terms in the terms of representation and warranty will cause disputes between both parties. In the process of drafting the contract, both parties and their lawyers will try their best to use the terms that are beneficial to their own side to write the statement of the relevant issues. In general, the final determination of the terms depends on the tension between loan supply and demand and the negotiation level of negotiators. This also applies to the setting and expression of other terms in the contract.
1 1. Default
Breach in a loan contract can be divided into two categories: one is violation of the loan contract itself, such as failure to repay the principal and interest at maturity, failure to perform the agreed obligations or incorrect statements and guarantees of facts; The other is the so-called anticipatory breach of contract, that is, from some signs, the borrower has lost the ability to perform the obligations under the loan contract.
Anticipated default mainly includes:
(1) Cross-default. The formation of credit risk is a gradual process from germination, accumulation to occurrence. Before the repayment period expires, the borrower's financial and commercial conditions have undergone major adverse changes, which may affect its performance ability. In addition to the general default clause and guarantee, the lender can also stipulate "cross-default clause" in the contract. The basic meaning of cross-default is that if the debtor under this contract defaults under other loan contracts, it is also regarded as a breach of this contract. Generally speaking, creditors hold the debtor liable for breach of contract on the grounds that the parties fail to perform their obligations under this contract, but the cross-default clause breaks through this restriction and smacks of "fighting first and then suffering", that is, trying to take relief measures before the repayment crisis of the borrower's debts under other loan contracts, so as to avoid falling into a worse situation than other creditors. Although this form of breach of contract is not clearly stipulated in the current law of our country, it does not violate the relevant jurisprudence and legal spirit of the contract law, and the right of uneasy defense in the current contract law can be used as the legal basis for its application. Therefore, the cross-default clause can be written into the contract as an agreed clause, so that the lender can fully grasp the borrower's credit level in time.
(2) The borrower is insolvent. If the borrower is declared bankrupt or insolvent through judicial procedures, or it is clearly unable to pay off due debts, or gives property to creditors or puts forward suggestions for giving property, it is regarded as an event of default. This is a worrying breach of contract, because when the borrower loses its solvency, if it can't get out of the predicament, it will inevitably violate the loan contract.
(3) Other major adverse changes have taken place in the borrower's situation. Since the default clause is used to deal with unforeseen circumstances, it cannot be exhausted from the lender's point of view. Therefore, from the lender's point of view, such a comprehensive protection clause is needed to protect its interests. In the terms of breach of contract, it is generally stipulated that no matter what the reason, whether the borrower is voluntary or involuntary, whether it is caused by the order of the court or the provisions of laws and regulations, it should be regarded as breach of contract. The purpose of this provision is to prevent the borrower from claiming that the breach of contract is caused by force majeure, thus exempting him from the liability for breach of contract. In view of the above reasons, the lender should strive to make an agreement in the loan contract. Under any of the following circumstances, the lender has the right to unilaterally decide to stop paying the unused loan of the borrower and recover part or all of the loan principal and interest in advance:
① Providing false materials or concealing important business and financial facts;
② Changing the original purpose of the loan without the consent of the lender, misappropriating the loan or using the loan to engage in illegal or illegal transactions;
(3) Discounting or pledging bills receivable, accounts receivable and other creditor's rights without actual trade background to the bank by using false contracts with related parties to obtain the lender's funds or credit;
(4) Refusing to accept the lender's supervision and inspection on the loan purpose and related business and financial activities;
(5) Major mergers, acquisitions and reorganizations that the lender thinks may affect the safety of the loan;
⑥ Deliberately evading creditor's rights through related party transactions.
12. Agreement jurisdiction
Through consultation, both parties may agree on the court jurisdiction of the litigation arising from this contract in accordance with the provisions of the Contract Law.
13. Effective conditions of the contract
In the loan contract, the effective conditions of the contract can be agreed. For example, the acquisition of guarantee documents, the signing of guarantee contracts, the handling of mortgage registration, the delivery of pledges, and the issuance of notarial certificates.
14. The mutually agreed definitions of some terms in the contract are given in the annex.