Contoh Draft Corporate Guarantee

CORPORATE GUARANTEE

This Corporate Guarantee is made on this [______________] (the “Guarantee”), by and between:

1.      PT XXX, a limited liability company duly established and existing under the laws of the Republic of Indonesia, having its registered office at _______ (“PT XXX”, hereinafter is referred to as the “Guarantor”);

In favour of:

2.      PT YYY, a limited liability company duly established and existing under the laws of the Republic of Indonesia, having its registered office at _______ (hereinafter is referred to as the “PT YYY”);

The Guarantor and PT YYY are collectively referred to as the “Parties” and each one of them as the “Party.”

WITNESSETH

A.    Whereas, PT ABC, a limited liability company duly established and existing under the laws of the Republic of Indonesia, having its registered office at _____ (“PT ABC”), has entered into a Loan Agreement dated [_____] with PT YYY (“Loan Agreement”), in which PT YYY has agreed to provide loan to PT ABC in the amount of _______ for __________. 

B.     Whereas, the Guarantor has agreed to guarantee the due and timely performance of PT ABC’s obligations under the Loan Agreement, and indemnify PT YYY against any loss that might incur as a result of the failure of PT ABC to perform its respective obligations under the Loan Agreement, pursuant to the terms and conditions of this Guarantee.

C.     Whereas, pursuant to the Articles of Association of the Guarantor (“AoA”), to enter into, act as a guarantor and perform this Guarantee, the Guarantor has to obtain approval from its shareholders under a [circular resolution of the shareholders/Extraordinary General Meeting of Shareholders] dated [__], attached hereto. 

Now therefore, in consideration of the mutual covenants and premises, the Parties hereto agree to enter into this Guarantee, to document their agreements pursuant to the following terms and conditions:

ARTICLE 1

DEFINITIONS AND INTERPRETATIONS

1.1.      In this Guarantee (including the recitals), except where the context otherwise requires:

“AoA” means abbreviation for Articles of Association of the Guarantor, as amended from time to time;

“BANI” means abbreviation for Badan Arbitrase Nasional Indonesia or the Indonesian National Arbitration Board;

 “Loan Agreement” means the loan agreement entered into by and PT ABC and PT YYY as of [________].

“Dispute” shall have the meaning set forth in Article 7.2;

“Guarantor” means PT XXX;

1.2.      Words and phrases defined in the Loan Agreement shall have the same meanings in this Guarantee unless otherwise defined herein.

 

1.3.      In this Guarantee (unless the context otherwise requires):

(a)      article/clause headings are for convenience of reference only and shall not affect the construction of this Guarantee;

(b)      references to Articles are to be construed as references to articles of this Guarantee;

(c)      references to (or to any specified provision of) this Guarantee or any other document shall be construed as references to this Guarantee, that provision or that document as from time to time amended or supplemented;

(d)      words importing the plural shall include the singular and vice versa;

(e)      where any matter requires the approval or consent of PT YYY such approval or consent shall not be deemed to have been given unless the approval or consent is given in writing; where any matter is required to be acceptable to PT YYY, PT YYY shall not be deemed to have accepted such matter unless its acceptance is communicated in writing;

(f)       references to winding up include bankruptcy declaration and any procedure under any applicable law which is analogous to winding up or bankruptcy declaration;

(g)      reference to any statute or statutory provisions includes any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute;

(h)      the words “including”  and “in particular”  shall be construed  as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any  foregoing words; and

(i)       references to a “person” shall be construed so as to include that person’s assigns  or transferees or successors in title  and shall be construed as including references to an individual, firm, partnership, joint venture, company, corporation, unincorporated body of persons or any state or any agency thereof.

 

1.4.      The Guarantor acknowledges having received a copy of the Loan Agreement and confirms its understanding and acceptance of the provisions thereof.

ARTICLE 2

GUARANTEE

2.1.      Guarantee. In order to secure the fulfillment of PT ABC’s obligations under the Loan Agreement, the Guarantor hereby absolutely, unconditionally and irrevocably guarantees to PT YYY, as a continuing obligation, the due and punctual performance of PT ABC’s obligations and undertakes to PT YYY that whenever PT ABC does not perform any of its obligations and/or pays any amount when due and payable under or in connection with the Loan Agreement, the Guarantor shall, within [__] business days upon a written demand made by PT YYY to the Guarantor,  perform such obligations and/or pay in full such amount.

2.2.      Indemnity. As a separate, continuing and primary obligation, the Guarantor further absolutely, irrevocably and unconditionally undertakes to indemnify fully and hold harmless PT YYY against any cost, claim, loss or liability, from time to time, to which it may be subject or which it may incur as a result of any non-compliance by PT ABC or the Guarantor with or failing to perform any of its respective obligations, or as a result of any article or provision of the Loan Agreement being or becoming void, voidable or unenforceable for any reason whatsoever, whether or not known to PT YYY.

2.3.      Other Expenses. The Guarantor further agrees to pay all evidenced reasonable expenses (including reasonable fees and expenses of counsel on a full indemnity basis) incurred by PT YYY in enforcing any right under this Guarantee within [__] business days upon a written demand made by PT YYY to the Guarantor.

2.4.      Interest. In the event that the Guarantor fails to pay the due and payable amount within the given period upon the issuance of a written demand, the Guarantor shall be obliged to pay, and PT YYY shall be entitled to claim interest on any unpaid amount at the rate [__] from the date of the demand until such unpaid amount together with any accrued interest thereon are paid in full.

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