The Facility Agreement is a fundamental document in South African banking and finance transactions, used to document lending arrangements between financial institutions and borrowers. It is particularly important given South Africa's sophisticated financial services sector and robust regulatory framework. The agreement must comply with various local legislation, including the National Credit Act 34 of 2005, the Banks Act 94 of 1990, and relevant exchange control regulations. The Facility Agreement typically covers loan amounts ranging from medium to large-scale financing, and can be used for various purposes including working capital, acquisition finance, project finance, or asset finance. The document structure follows international best practices while incorporating specific South African legal requirements and market conventions.
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1. Parties: Identification of the lender(s), borrower(s) and any guarantors
2. Background: Context of the facility and purpose of the agreement
3. Definitions and Interpretation: Definitions of key terms and interpretation rules
4. The Facility: Details of the facility amount, purpose and availability
5. Conditions Precedent: Conditions that must be satisfied before drawdown
6. Drawdown: Procedures and requirements for utilization of the facility
7. Interest: Interest rate, calculation and payment provisions
8. Repayment: Terms and schedule for repayment of the facility
9. Prepayment: Voluntary and mandatory prepayment provisions
10. Representations and Warranties: Statements of fact and assurances given by the borrower
11. Information Undertakings: Obligations to provide financial and other information
12. Financial Covenants: Financial metrics and ratios the borrower must maintain
13. General Undertakings: General operational and business commitments of the borrower
14. Events of Default: Circumstances that trigger default and remedies
15. Changes to Parties: Assignment and transfer provisions
16. Administration: Payment mechanics, calculations and administrative matters
17. Notices: Communication procedures between parties
18. General: Miscellaneous legal provisions including amendments, waivers, severability
19. Governing Law and Jurisdiction: South African law as governing law and jurisdiction provisions
1. Security: Required if the facility is secured - details security arrangements and enforcement
2. Guarantee: Required if there are guarantors - terms of guarantee and indemnity
3. Agent and Security Agent Provisions: Required for syndicated facilities with multiple lenders
4. Tax Gross Up and Indemnities: Detailed tax provisions required for cross-border facilities
5. Increased Costs: Required for facilities with international lenders or regulatory change protection
6. Set-off: Optional rights of set-off, typically included for corporate facilities
7. Payment Waterfall: Required for complex facilities with multiple tranches or priority arrangements
8. Break Costs: Required for facilities with fixed interest periods
9. Market Disruption: Required for facilities using interbank rates as reference rates
1. Form of Drawdown Notice: Template for borrower to request utilization of the facility
2. Conditions Precedent Documents: Detailed list of required documents and conditions
3. Form of Transfer Certificate: Template for transferring commitments between lenders
4. Form of Compliance Certificate: Template for periodic financial covenant compliance certification
5. Repayment Schedule: Detailed schedule of repayment dates and amounts
6. Form of Accession Deed: Template for additional parties joining the agreement
7. Financial Covenant Calculations: Detailed methodology for calculating financial covenants
8. Security Documents: List and copies of security documents if facility is secured
9. Existing Security and Financial Indebtedness: Details of permitted existing arrangements
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