A Secured Loan Agreement provides financing backed by collateral assets, outlining repayment and enforcement terms. This playbook explains negotiation of covenants, events of default, and security perfection requirements.
Why This Matters: Overbroad or inaccurate representations can expose the client to unexpected liabilities and undermine enforceability in a dispute.
Negotiation strategy
If you're the Lender:
Ensure representations are precise and limited to factual matters within your control. Avoid broad language that could imply guarantees beyond reasonable expectations.
If you're the Borrower:
Negotiate for representations that reflect the factual and legal assurances necessary for your protection. Consider industry standards and your specific risk profile.
Essential elements
1
Legal Authority
Authority to enter agreement.
2
Due Diligence
Conducted necessary due diligence.
3
Industry Compliance
Adheres to industry standards.
Action framework
ACCEPT
Propose edits when representations are too broad or not aligned with risk tolerance.
EDIT
Reject clauses that impose unreasonable liabilities or lack clarity.
ADD
Add representations to address specific transaction risks or industry standards.
PRO TIP
Focus on areas where the client has significant exposure or where industry standards dictate specific representations.
Example clauses
FAVORABLE
Preferred Representation
"The party represents and warrants that it has the necessary legal authority to enter into this agreement and that all information provided is accurate and complete as of the date of this agreement."
NEUTRAL
Fallback Representation
"The party represents and warrants to the best of its knowledge that it has the necessary legal authority to enter into this agreement."
UNFAVORABLE
Overbroad Representation
"The party represents and warrants that all aspects of its operations are flawless and without error."
Fallbacks
High-Risk Projects
In high-risk projects, representations should be more detailed to cover potential liabilities and ensure comprehensive risk management.
Regulatory Compliance
For industries with strict regulations, ensure representations include compliance with all applicable laws and standards.
Cross-Border Transactions
In cross-border deals, include representations about compliance with international laws and local regulations.
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WEEK 2
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WEEK 3
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WEEK 4
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