The Corporate Performance Guarantee is a crucial document in Malaysian commercial transactions where certainty of performance is essential. It is commonly used in situations where a company needs additional security for the performance of contractual obligations by its counterparty, particularly in high-value commercial contracts, construction projects, or supply arrangements. The guarantee, governed by Malaysian law, provides the beneficiary with recourse against a financially stronger entity (the guarantor) if the principal fails to perform its obligations. This document typically includes detailed provisions about the scope of guaranteed obligations, trigger events for calling on the guarantee, enforcement mechanisms, and the duration of the guarantee. It must comply with Malaysian legal requirements, including those under the Contracts Act 1950 and Companies Act 2016, and may need to be stamped in accordance with the Stamp Act 1949 to be enforceable.
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1. Parties: Identification of the Guarantor (company providing the guarantee), the Beneficiary (party receiving the guarantee), and the Principal (company whose performance is being guaranteed)
2. Background: Context of the guarantee, including reference to the underlying agreement or obligation being guaranteed
3. Definitions: Key terms used throughout the guarantee agreement, including 'Guaranteed Obligations', 'Event of Default', and other relevant definitions
4. Guarantee and Indemnity: Core section detailing the scope of the guarantee, including the specific obligations being guaranteed and indemnification provisions
5. Nature of Guarantee: Specification that the guarantee is continuing, unconditional, and irrevocable
6. Guarantor's Representations and Warranties: Statements regarding the guarantor's capacity, authority, and ability to provide the guarantee
7. Payment Obligations: Terms regarding timing and method of payments upon demand
8. Enforcement: Conditions and process for enforcing the guarantee
9. Duration and Release: Term of the guarantee and conditions for its termination or release
10. Governing Law and Jurisdiction: Specification of Malaysian law as governing law and jurisdiction for disputes
1. Security: Additional security provisions if the guarantee is secured by specific assets or collateral
2. Assignment: Provisions regarding the ability to assign rights under the guarantee, if assignment is to be permitted
3. Counter-Indemnity: Where the Principal provides indemnity to the Guarantor
4. Multiple Guarantors: Additional provisions for cases involving more than one guarantor
5. Financial Covenants: Specific financial requirements or ratios that the Guarantor must maintain
6. Step-In Rights: Rights of the Beneficiary to step in and take over performance in certain circumstances
1. Schedule 1 - Underlying Agreement: Copy or key terms of the agreement or obligation being guaranteed
2. Schedule 2 - Guaranteed Obligations: Detailed description of the specific obligations covered by the guarantee
3. Schedule 3 - Form of Demand: Template for making a demand under the guarantee
4. Schedule 4 - Corporate Authorizations: Copies of relevant board resolutions and corporate authorizations
5. Schedule 5 - Performance Metrics: Specific performance indicators or standards that must be met
6. Appendix A - Notice Details: Contact information and notice requirements for all parties
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