The Special Bank Guarantee is a crucial financial instrument in South African commercial practice, used to provide financial security and risk mitigation in various business transactions. This document is typically employed when a party requires independent financial assurance from a reputable banking institution, common in scenarios such as construction projects, tender submissions, performance obligations, or advance payment security. The guarantee must comply with South African banking regulations and financial sector requirements, including the Banks Act 94 of 1990 and Financial Sector Regulation Act. Special Bank Guarantees are particularly valuable in high-value transactions where the beneficiary requires certainty of payment, as they represent an independent obligation of the bank, separate from the underlying commercial relationship between the principal debtor and the beneficiary.
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1. Parties: Identification of the Bank (Guarantor), the Beneficiary, and the Principal Debtor
2. Background: Context of the guarantee, including the underlying transaction or obligation being guaranteed
3. Definitions: Definitions of key terms used in the guarantee, including 'Guaranteed Amount', 'Expiry Date', and 'Guaranteed Obligations'
4. Guarantee: Core guarantee provisions, including the amount, scope, and nature of the guarantee
5. Duration: Term of the guarantee, including commencement and expiry dates
6. Demand Requirements: Procedure and requirements for making a valid demand under the guarantee
7. Payment Terms: Terms and conditions for payment upon demand, including payment period and currency
8. Bank's Rights and Obligations: Specific rights and obligations of the guarantor bank
9. Reduction and Release: Circumstances under which the guaranteed amount may be reduced or the guarantee released
10. Governing Law and Jurisdiction: Specification of South African law as governing law and jurisdiction for disputes
11. Notices: Communication requirements and contact details for all parties
1. Counter-Indemnity: Terms of counter-indemnity from the Principal Debtor to the Bank, used when the Principal Debtor is required to indemnify the Bank
2. Assignment: Provisions regarding the transfer or assignment of rights under the guarantee, included when assignment needs to be specifically permitted or prohibited
3. Multiple Beneficiaries: Additional provisions for cases where there are multiple beneficiaries
4. Currency Provisions: Specific provisions for cross-border guarantees involving foreign currency
5. Step-In Rights: Provisions allowing the Bank to step into the underlying contract, used in project finance or construction guarantees
6. Dispute Resolution: Alternative dispute resolution mechanisms, included when arbitration or mediation is preferred over court proceedings
1. Form of Demand: Template for making a valid demand under the guarantee
2. Underlying Agreement Details: Summary or extract of the main agreement being guaranteed
3. Security Documents: List and copies of related security documents
4. Payment Schedule: Schedule of any staged or conditional payments under the guarantee
5. Authorized Signatories: List of persons authorized to make demands or give notices under the guarantee
6. Bank's Standard Terms and Conditions: Standard terms applicable to all guarantees issued by the bank
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