171 GUARANTEE AGREEMENT The guarantee ( borgtocht/cautionnement ) can be defined as an agreement where one party, the guarantor, gives obligations towards another party, the beneficiary, to pay the debts of a certain debtor, in the event that this debtor fails to pay its debts. The granting of intra-group guarantees is a customary practice. This model agreement is a guarantee ( borgtocht/cautionnement ) which is regulated by articles 2011 to 2043 of the Civil Code. It should not be construed as a bank guarantee ( bankgarantie/garantie bancaire ), a letter of credit ( kredietbrief/lettre de crédit ), a documentary credit ( documentair krediet/crédit documentaire ), or a letter of comfort ( patronaatsverklaring/lettre de confort ) which are all related legal instruments or concepts that may also provide some assurance to a counterparty but where the legal scope is substantially different. The typical situation for this model is where a parent company issues a guarantee to a financial institution entering into a credit agreement with one of its subsidiaries. Guarantees offered by a parent company, or another member of the group with a suitable asset value, may be desirable because they may lead to a lower interest rate. Before entering into or accepting a letter of guarantee, the parties should examine the possible impediments that may exist in relation to whether they can actually be granted, especially in the framework of intra-group guarantees. A parent company must, for instance, have a separate corporate benefit in order to grant a guarantee for its subsidiary. It is advisable to have such issues of validity examined by a lawyer (and/or covered by a legal opinion). THIS AGREEMENT IS MADE AND ENTERED INTO between, a company incorporated and existing under the laws of with its registered office at [address] and registered with in under number (the Guarantor ) and, a company incorporated and existing under the laws of Belgium, with its registered office at [address] and registered with RPR/RPM in [judicial district] under number (the Beneficiary ); in the presence of, a company incorporated and existing under Belgian law, with its registered office at [address] and registered with RPR/RPM in [judicial district] under number ( the Borrower ).
172 GUARANTEE AGREEMENT The Guarantor and the Beneficiary are also individually referred to as a Party and collectively as the Parties. WHEREAS the undersigned Guarantor holds a share of per cent ( %) in the Borrower and therefore has control over the Borrower within the meaning of the Belgian Company Code; WHEREAS the undersigned Guarantor is fully aware of the terms and the conditions of the [title and date of agreement] (the Agreement ) concluded by the Beneficiary with the Borrower and agrees on such terms and conditions (*) ; NOW, THEREFORE, the undersigned Guarantor undertakes to the Beneficiary the following: Article 1 Object of the Guarantee The Guarantor will pay any and all sums due, or to become due, by the Borrower to the Beneficiary, under or in connection with the Agreement, whether as principal, interest or otherwise, and which have not been paid by the Borrower at the time that such demand is made. Any demand for payment under this Guarantee must be sent by registered mail to the Guarantor. The registered letter containing the demand under the Guarantee must specify any and all amounts due to the Beneficiary by the Borrower (whether as principal, interest or otherwise) and which have not been paid by the Borrower at the time that such demand is made. Article 2 Waivers The Guarantor hereby waives: (a) the benefit of division ( voorrecht van schuldsplitsing/bénéfice de division ) ( ) ; (b) the benefit of execution ( voorrecht van uitwinning/bénéfice de discussion ) ( ) ; (c) the benefit of article 2037 of the Civil Code ( exceptio subrogationis ); (*) For sake of completeness or proof, it is advisable to attach the agreement referred to in this recital to the Guarantee Agreement. ( ) See article 2026 Belgian Civil Code. ( ) See article 2024 Belgian Civil Code.
GUARANTEE AGREEMENT 173 (d) any subrogation of the rights of the Beneficiary until all sums due by the Borrower have been paid in full. Any such right of subrogation under this guarantee shall be subordinate to any and all rights that the Beneficiary may have against the Borrower; (e) the right to demand rescission of this guarantee or to the release of the guarantor if, for any reason whatsoever, payment made to the Beneficiary would not be valid or has to be refunded; and (f) the possibility to claim the benefit of any delay granted to the Borrower. Any future modification of any term of the Agreement including extensions of maturity or renewals thereof shall not alter any of the obligations under this Guarantee. Without limiting the generality of the foregoing, the Guarantor s obligation hereunder is to pay the obligations of the Borrower in full when due according to their terms, and shall not be affected by any extension of time or by any bar as to the enforceability of the obligations. This Guarantee co-exists with any other guarantee or other security given for the obligations under the Agreement. This Guarantee continues to exist for its full amount even after the realisation of the other securities. Furthermore, the granting or addition of any new security or guarantee to this Guarantee, shall in no respect whatsoever, alter the obligations of the Guarantor under this Guarantee. Any release of this Guarantee is null and void and without effect if any payment received by the Beneficiary and accepted in satisfaction of all or part of the guaranteed amounts (i) is avoided or declared invalid as against the creditors of the maker of such payment, or (ii) becomes repayable by the Beneficiary to a third party, or (iii) proves not to have been effectively received by the Beneficiary. Upon making payment in full under this Guarantee, the Guarantor shall be conferred all the rights as payee against the Borrower. Article 3 Representations and Warranties 3.1. The Guarantor represents and warrants that: (a) it is a corporation duly organised under the laws of the jurisdiction of its incorporation and is duly qualified to conduct business wherever necessary to carry on its operations; (b) the making and performance of this Guarantee is within the Guarantor s corporate powers, has been duly authorised by all necessary corporate action, has received all necessary governmental and regulatory approvals,
174 GUARANTEE AGREEMENT if any, and does not contravene the Guarantor s charter or articles of association or any contractual restriction binding the Guarantor (*) ; (c) this Guarantee when executed will be a valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganisation, moratorium, fraudulent conveyance, or other similar laws from time to time in effect and affecting the enforceability of rights of creditors generally. 3.2. The Guarantor further represents and warrants that it is fully aware of the terms and conditions of the Agreement and undertakes insofar as they concern the Guarantor to comply with the undertakings laid down by these terms and conditions. Article 4 Duration This Guarantee shall remain in full force and effect and be binding upon the Guarantor, its successors and assigns until payment in full is made by the Borrower to the Beneficiary. Article 5 Miscellaneous Provisions 5.1. This guarantee contains the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and replaces all prior agreements or understandings, written or oral, with respect to the same subject matter that are still in force between the parties. 5.2. Any amendment to this guarantee, as well as any additions or omissions, can only take place when agreed in writing with the mutual consent of both of the parties. 5.3. Neither Party shall assign or transfer any of its rights or obligations under this guarantee, in whole or in part, to any third party without the prior written consent of the other Party. Any such assignment or transfer without the prior written consent of the other Party shall be deemed null and void. (*) Particular attention should be given to impediments for granting a guarantee, such as the principles of legal speciality, corporate benefit, corporate purpose, the ultra vires doctrine and the forbidden financial assistance rules (art. 629 Belgian Company Code). Other restrictions may result from contracts such as credit facility agreements (e.g. negative pledge provisions). It is advisable to have these issues examined by a lawyer prior to entering into a contract.
176 GUARANTEE AGREEMENT A notice shall be considered delivered to the recipient s address on the date of delivery if delivered in person, or 3 working days following the date of mailing if sent by registered mail. Either Party may change the address to which notices are to be delivered or transmitted by giving the other Party written notice to this effect in the manner set forth herein. Article 6 Applicable Law and Jurisdiction 6.1. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this guarantee shall be governed by and construed in accordance with Belgian law, and no effect shall be given to any other choice of law or any conflict-of-laws rules or provisions (Belgian, foreign or international) that could cause the laws of any jurisdiction other than Belgium to be applicable. 6.2. Any dispute concerning the validity, interpretation, enforcement, performance or termination of this guarantee shall be submitted to the exclusive jurisdiction of the [judicial district] courts. Executed in [place], on [date], in three original copies (*), each party acknowledging receipt of one. FOR AND ON BEHALF OF THE GUARANTOR [name] [title] [date] [signature] FOR AND ON BEHALF OF THE BENEFICIARY [name] [title] [date] [signature] (*) Since it is sometimes maintained that a guarantee is a unilateral undertaking, it is also possible to execute only one original by the Guarantor, which will then be handed to the Beneficiary. We prefer to construe a guarantee as a contractual instrument.
GUARANTEE AGREEMENT 177 FOR AND ON BEHALF OF THE BORROWER [name] [title] [date] [signature]