The Contract of Indemnity and Guarantee is a crucial legal instrument in Belgian commercial and financial transactions, used when one party needs to provide security for another's obligations. This document type is particularly relevant in scenarios involving corporate groups, financial facilities, construction projects, or commercial transactions where additional security is required. The contract must comply with specific requirements under the Belgian Civil Code, including express consent provisions and formal documentation requirements. It typically details the scope of guaranteed obligations, enforcement mechanisms, and preservation of rights, while also incorporating relevant EU regulations where applicable. The document's structure ensures it functions both as a guarantee (accessory obligation) and an indemnity (primary obligation), providing comprehensive protection for the beneficiary while clearly defining the guarantor's obligations and limits.
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1. Parties: Identification of the Guarantor/Indemnifier, the Beneficiary, and the Principal Debtor (if applicable)
2. Background: Context of the guarantee/indemnity, including reference to the primary obligation or agreement being guaranteed
3. Definitions: Definitions of key terms used throughout the agreement, including 'Guaranteed Obligations', 'Indemnified Matters', and 'Enforcement Event'
4. Guarantee: The primary guarantee obligations, including scope, nature (conditional/unconditional), and duration
5. Indemnity: The indemnity obligations, specifically structured as a primary obligation independent of the guarantee
6. Payment Provisions: Terms regarding timing, method, and currency of payments, including gross-up provisions if applicable
7. Preservation of Rights: Provisions ensuring the guarantee/indemnity remains valid despite variations to the underlying obligation or other circumstances
8. Representations and Warranties: Guarantor's/Indemnifier's confirmations regarding capacity, authority, and solvency
9. Enforcement: Conditions and procedures for enforcing the guarantee/indemnity
10. Termination: Circumstances under which the guarantee/indemnity may be terminated or released
11. Governing Law and Jurisdiction: Confirmation of Belgian law application and jurisdiction for disputes
12. Execution: Signature blocks and execution requirements
1. Security: Include when the guarantee/indemnity is secured by specific assets or other security interests
2. Multiple Guarantors: Include when there are multiple guarantors, defining their joint and several liability
3. Financial Covenants: Include when the guarantor must maintain specific financial metrics or conditions
4. Tax Provisions: Include detailed tax provisions when cross-border elements exist or specific tax treatments are required
5. Currency Provisions: Include when payments may be made in multiple currencies or currency conversion is relevant
6. Assignment and Transfer: Include when either party needs the right to assign or transfer their rights/obligations
7. Communications: Include when formal notice procedures need to be specified
8. Force Majeure: Include when specific events should not excuse performance of the guarantee obligations
1. Form of Demand: Template for making a demand under the guarantee/indemnity
2. Guaranteed Obligations: Detailed description of the obligations being guaranteed, if too extensive for main agreement
3. Security Assets: List and description of any assets securing the guarantee/indemnity
4. Guarantor Information: Details of guarantor's financial position and relevant corporate information
5. Underlying Agreement: Copy or key terms of the agreement being guaranteed
6. Required Authorizations: List of required corporate and regulatory approvals
7. Notice Details: Contact information and formal notice requirements for all parties
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