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COLLATERALAGREEMENT
This Collateral Agreement (hereinafter referred to as the “AGREEMENT”) is made on this day,
____, 2012, by and between:
1. ___________ COMPANY LIMITED, a limited liability company duly established and
existing under the laws of Japan, having its registered address at 4______________, Japan
(hereinafter referred to as the “UPK”); and
2. PT. ____________, a limited liability company duly established and existing under the
laws of the Republic of Indonesia, having its address at _____________, Indonesia
(hereinafter referred to as the “KENCANA”).
UPK and KENCANA are hereinafter collectively referred to as the “PARTIES” and severally
referred to as the “PARTY”
WITNESSETH
Whereas:
A. UPK, through _________ INVESTMENT PTE., LTD., a company duly established and
existing under the laws of Singapore, having its registered office at 315 Outram Road, #15-08
Tan Boon Liat Building, Singapore 169074 (hereinafter referred to as “RAYINDO”) as the
legal owner, is the beneficial owner of 33,653 (thirty three thousand six hundred fifty three)
shares representing 34.34% (thirty four point thirty four percent) of issued and paid up capital
of PT. HUTANKITA, a limited liability company duly established and existing under the laws
of the Republic of Indonesia, having its registered office at ___________ (hereinafter referred
to as “HTK”);
B. KENCANA is the legal and beneficial owner of 17,400 (seventeen thousand four hundred)
shares (hereinafter referred to as “KENCANA’s SHARES”) representing 17.75% (seventeen-
point seventy-five percent) of the issued and paid up capital of HTK;
C. HTK is a company that engaged in the field of timber plantation business which planning to
engage in a chip mill project (hereinafter referred to as the “PROJECT”) and has expressly
requested to the EFG BANK, a company duly established and existing under the laws of the
Swiss Confederation, having its registered office at ________________ (hereinafter referred
to as the “BANK”), to lend the necessary fund for the capital equipment and operational cost
of the PROJECT in the amount of USD ________________ (___________ United State of
America Dollar) (hereinafter referred to as the “LOAN”);
D. The BANK has agreed to lend the LOAN to HTK as proven by the Loan Agreement dated
__________ which was made by and between BANK and HTK (hereinafter referred to as the
“LOAN AGREEMENT”);
E. As the terms and conditions of the LOAN AGREEMENT and in order to secure the due and
punctual repayment of the LOAN, UPK has been requested by the BANK and therefore
obligated to issue a corporate guarantee;
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F. UPK has issued the corporate guarantee in favor of the BANK as proven by Corporate
Guarantee of UPK dated ___________ (hereinafter referred to as the “UPK’s CORPORATE
GUARANTEE”); and
G. In order to guarantee UPK’s interest and to secure UPK’s CORPORATE GUARANTEE, UPK
has requested KENCANA to pledge any and all KENCANA’s SHARES to UPK and
KENCANA is desires to pledge any and all KENCANA’s SHARES to UPK.
NOW THEREFORE in consideration of the premises and the mutual covenants herein contained,
the PARTIES hereto have acknowledged and agree to enter into this AGREEMENT with the
following terms and conditions:
1. SCOPE OF THE AGREEMENT
1.1. KENCANA hereby agrees to pledge any and all of KENCANA’s SHARES to UPK
(hereinafter referred to as the “SECURITY”), and UPK hereby accepts the pledge of
any and all of KENCANA’s SHARES from KENCANA.
1.2. KENCANA agrees, as the case may be, to enter into any documents or agreements with
UPK pertaining to such SECURITY.
2. TERMS AND CONDITION OF THE SECURITY
2.1. The SECURITY as stipulated in Article 1 shall only be executed by UPK in the event
the LOAN is not paid by HTK to the BANK when due in accordance with the provision
of the LOAN AGREEMENT.
2.2. UPK shall firstly notify KENCANA in writing by registered letter posted to
KENCANA’s registered office of any breach of or default in any of the terms, conditions
and obligations contained in the LOAN AGREEMENT that conducted by HTK, and in
the event of any such breach or default, UPK shall, insofar as it may be lawful in
accordance with the applicable laws, permit KENCANA to perform the terms,
conditions and obligation of the LOAN AGREEMENT which HTK have failed to
perform before UPK decided to execute the SECURITY. Unless otherwise agreed by
KENCANA, failure to make such written notice by UPK shall eliminate the right of
UPK to execute the SECURITY and any actions performed by UPK related to the
execution of the SECURITY shall be null and void.
2.3. The SECURITY shall be automatically released after HTK has paid the LOAN and
fulfilled its obligations as stipulated in the LOAN AGREEMENT to the BANK, proven
by BANK’s statement confirming the completion of the LOAN.
2.4. As an administrative evidence for the release of the SECURITY as stipulated in
Paragraph 2.3 above, UPK shall issue and deliver to KENCANA a written statement
confirming the release of such SECURITY to KENCANA no later than 7 (business)
business days since the completion date of the LOAN AGREEMENT.
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3. GOVERNING LAW AND DISPUTE SETLEMENT
3.1. This AGREEMENT shall be governed by and interpreted under the laws of the Republic
of Singapore.
3.2. Any disputes or other matters arising in relation to the rights and obligations under this
AGREEMENT shall be decided as they occur, and upon consultation between the
PARTIES and as far as possible be settled amicably by the PARTIES hereto, not later
than 30 (thirty) working days since the first formal meeting is held by the PARTIES.
3.3. Failure to make amicable settlement of any disputes, controversies, conflicts or other
matters which arise out of and in relation to and/or concerning this AGREEMENT shall
be finally settled by arbitration in Singapore International Arbitration Center (“SIAC”).
Such arbitration shall be conducted in the English language and shall be conducted
before three (3) Arbitrators, consisting of one (1) appointed by the CREDITOR, one (1)
appointed by the DEBTOR, and one (1) appointed by the two (2) aforementioned
appointedArbitrators in accordance with SIAC rules. The arbitration award shall be final
and binding.
4. FORCE MAJEURE
4.1. Neither PARTY shall be responsible or liable for or deemed in default or in breach for
failure to perform its part or whole of its obligation under or pursuant this
AGREEMENT and/or each individual contract under this AGREEMENT due solely to
one or more events of FORCE MAJEURE or its or their effects or by any combination
thereof.
4.2. The FORCE MAJEURE as referred to in Paragraph 4.1 above shall means, including
without limitation, any exception from liability specifically provided for in the
AGREEMENT, forcefire, flood, strikes, labor troubles or other industrial disturbances,
inevitable accidents, war (declared or undeclared), embargoes, blockades, legal
restrictions, riots, insurrections, act of government or government regulation or any
other causes beyond the control of the PARTIES hereto.
4.3. The affected PARTY shall promptly notify the other PARTY related of such cause or
circumstances of the FORCE MAJEURE not later than 7 (seven) business days and the
PARTIES will consult and determine what action should be taken to best protect their
respective interests.
4.4. Neither PARTY shall be responsible or liable for or deemed to be responsible for any
losses incurred by the non-affected PARTY and the non-affected PARTY shall not have
any right to claim for any compensation as the result of the FORCE MAJEURE.
5. TERMINATION
5.1. This AGREEMENT may be expired and/or terminated:
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a. Automatically expired if the PARTIES have fulfilled all of its obligations pursuant
to this AGREEMENT; or
b. Terminated by mutual written agreement between the PARTIES; or
c. Terminated by mutual agreement between the PARTIES if one or more event(s) of
FORCE MAJEURE render it impossible for the affected PARTY to fulfill its
obligations in accordance with the terms and condition of this AGREEMENT and
such event of FORCE MAJEURE is permanent, or if temporary, latest
uninterruptedly for a continuous period of sixty (60) days or more.
5.2. Except as expressly provided in this AGREEMENT, no PARTY shall in any
circumstances have any liability of any nature whatsoever to the other PARTY for any
indirect or consequential losses or loss of profits, loss of anticipated savings, loss of
business, or loss of data or losses arising out of commitments to third parties or for any
other losses, damages, costs or expenses that do not flow directly or naturally from a
breach of this AGREEMENT.
6. MISCELLANEOUS
6.1 All costs and expenses in relation to the preparation, modification, revision or any other
matter related to this AGREEMENT shall be paid by each respective PARTY.
6.2 The relevant date(s) for this AGREEMENT shall be those of the Republic of Indonesia,
unless otherwise specified.
6.3. Should UPK deem it necessary, then KENCANA shall procure and submit to UPK a
Notarial Deed, executed by a Public Notary, which witnesses the obligations and
responsibilities of UPK and KENCANA under this AGREEMENT.
6.4. Any other terms and conditions not specified in this AGREEMENT shall be discussed
mutually and agreed upon by the PARTIES at later stage, as the amendment to this
AGREEMENT, and the amendment, supplements, and/or alteration to the terms and
conditions of the AGREEMENT shall not become binding unless made in written form,
signed by the authorized representatives of the PARTIES and approved by respective
authorities if required.
6.5. In the event that any clause or part of a clause in this AGREEMENT shall for any reason
be determined by any court or arbitral tribunal to be illegal, invalid or unenforceable,
then this AGREEMENT shall not be affected and/or the remaining clauses and other
parts of the clause shall not be affected, impaired or invalidated and shall remain in full
force and effect and shall continue to be binding upon the PARTIES. The PARTIES shall,
in any such event, agree on new clause(s) that would replace such clause(s).
IN WITNESS WHEREOF the PARTIES hereto have caused this AGREEMENT to be executed by
their respective duly authorized signatories, in 2 (two) original, as of the date and year first written
above.
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For and on behalf of UPK, For and on behalf of KENCANA,
___________ COMPANY LIMITED PT. ____________
_______________________________ ______________________________
Name: Name:
Title: Executive Director Title:
