The Facility Agreement under Dutch law serves as the primary document for establishing and governing lending relationships between financial institutions and borrowers in the Netherlands. This agreement is utilized when a party requires substantial financing, whether for general corporate purposes, acquisitions, real estate development, or specific projects. The document incorporates mandatory provisions required under Dutch law and financial regulations, including the Dutch Financial Supervision Act (Wft) and relevant EU regulations. The Facility Agreement covers crucial aspects such as facility terms, security arrangements, representations, covenants, and enforcement mechanisms, all structured to comply with Dutch legal requirements and market practice. It's particularly important in syndicated lending scenarios where multiple lenders are involved, requiring careful consideration of Dutch law principles regarding security sharing and transfer provisions.
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1. Parties: Identification of the lender(s), borrower(s), and any other parties such as guarantors or security providers
2. Background: Context of the facility agreement and brief description of the transaction
3. Definitions and Interpretation: Definitions of terms used throughout the agreement and interpretation rules
4. The Facility: Core terms of the facility including amount, purpose, and availability
5. Conditions Precedent: Conditions that must be satisfied before drawdown
6. Utilisation: Procedures and requirements for drawing down the facility
7. Repayment: Terms for repayment of the facility
8. Prepayment and Cancellation: Provisions for voluntary and mandatory prepayment
9. Interest: Interest calculation, periods, and payment provisions
10. Fees: All fees payable under the facility
11. Tax Gross Up and Indemnities: Tax-related provisions and protections
12. Increased Costs: Provisions dealing with changes in costs due to regulatory changes
13. Representations: Borrower's representations and warranties
14. Information Undertakings: Borrower's obligations to provide information
15. Financial Covenants: Financial maintenance covenants and related definitions
16. General Undertakings: Borrower's general positive and negative covenants
17. Events of Default: Circumstances constituting default and consequences
18. Changes to Parties: Transfer and assignment provisions
19. Payment Mechanics: Administrative provisions regarding payments
20. Set-off: Rights of set-off and counterclaim
21. Notices: Communication procedures between parties
22. Calculations and Certificates: Provisions regarding calculations and evidence
23. Partial Invalidity: Severability provisions
24. Remedies and Waivers: Rights and remedies of the parties
25. Amendments and Waivers: Procedures for modifying the agreement
26. Governing Law: Dutch law as governing law
27. Enforcement: Jurisdiction and enforcement provisions
1. Accordion Facility: Optional section for when the facility includes an accordion feature allowing increase of the facility amount
2. Multiple Currencies: Required when the facility can be drawn in multiple currencies
3. Security: Required when the facility is secured, detailing security structure
4. Guarantee: Required when there are guarantors, containing guarantee provisions
5. Majority Lenders: Required for syndicated facilities, defining voting mechanisms
6. Role of Agent: Required for syndicated facilities, defining facility agent's roles
7. Role of Security Agent: Required when there is a security agent for secured facilities
8. Bank Accounts: Required when specific account structure is needed
9. Subordination: Required when there is structural subordination of debt
10. Anti-corruption: Enhanced compliance provisions when required by lender policy
1. Conditions Precedent: Detailed list of required conditions precedent documents
2. Form of Utilisation Request: Standard form for drawing down the facility
3. Form of Transfer Certificate: Standard form for transfers between lenders
4. Form of Compliance Certificate: Template for periodic compliance certification
5. Repayment Schedule: Detailed repayment schedule for term facilities
6. Form of Accession Deed: Template for new parties joining the agreement
7. Financial Covenants Calculations: Detailed methodology for financial covenant calculations
8. Existing Security: List of existing security interests if permitted
9. Existing Financial Indebtedness: List of permitted existing debt
10. Form of Assignment Agreement: Standard form for assignments between lenders
11. Contact Details: Detailed contact information for all parties
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