The Performance Guarantee Agreement is a crucial security instrument in commercial transactions under Irish law, commonly utilized in construction projects, service contracts, and major commercial undertakings. It provides beneficiaries with financial assurance against non-performance or default by the principal obligor. The document typically specifies the guaranteed amount, validity period, conditions for making demands, and payment terms. Used primarily when significant financial exposure exists or when required by regulatory or contractual obligations, this agreement must comply with Irish legislation, including the Statute of Frauds and financial services regulations. The guarantee can be called upon following specified trigger events, such as contractual breach or default, providing an efficient mechanism for risk mitigation and project security.
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1. Parties: Identifies the Guarantor, the Beneficiary, and the Principal Obligor (the party whose performance is being guaranteed)
2. Background: Describes the underlying transaction or obligation being guaranteed and the purpose of the guarantee
3. Definitions: Defines key terms used throughout the agreement for clarity and consistency
4. Guarantee and Indemnity: Sets out the core guarantee obligations, including the scope and amount of the guarantee
5. Duration and Validity: Specifies the effective period of the guarantee and any conditions affecting its validity
6. Demands and Payments: Details the process for making demands under the guarantee and how payments should be made
7. Guarantor's Obligations: Specifies the nature and extent of the guarantor's obligations and any limitations
8. Representations and Warranties: Contains statements of fact and assurances made by the guarantor
9. Preservation of Rights: Establishes that the beneficiary's rights are preserved despite any changes to the underlying obligation
10. Costs and Expenses: Allocates responsibility for costs associated with the guarantee
11. Notices: Specifies how formal communications between parties should be made
12. Governing Law and Jurisdiction: Confirms Irish law as governing law and specifies jurisdiction for disputes
1. Step-In Rights: Used in construction or project contracts to allow the beneficiary to take over the project upon default
2. Counter-Indemnity: Include when the principal obligor provides indemnity to the guarantor
3. Multiple Guarantors: Required when there is more than one guarantor, defining joint and several liability
4. Assignment and Transfer: Include if parties need the right to assign or transfer their rights under the guarantee
5. Currency Provisions: Necessary for international guarantees involving multiple currencies
6. Tax Gross-Up: Include when payments might be subject to withholding tax
7. Force Majeure: Optional clause defining circumstances that might excuse performance
8. Anti-Money Laundering Provisions: Include for financial institutions or when required by regulatory compliance
1. Form of Demand: Template for making valid demands under the guarantee
2. Guaranteed Obligations: Detailed description of the obligations being guaranteed
3. Payment Details: Banking and account information for payments under the guarantee
4. Underlying Contract: Copy or summary of the contract being guaranteed
5. Corporate Authorizations: Copies of relevant corporate approvals and authorizations
6. Conditions Precedent: List of documents and conditions required before the guarantee becomes effective
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