Resultados de Lectura en el nivel Excelente de 6.° primaria

Land and buildings

An HT may be granted over a parcel of land in respect of any of the following interests:

• Right of Ownership (Hak Milik)

• Right to Cultivate (Hak Guna Usaha)

• Right to Build (Hak Guna Bangunan)

• Right to Use (Hak Pakai) over State Land (Tanah Negara). Tangible moveable property (including ships, aircraft and commodities with warehouse receipts)

Tangible moveable property can be encumbered by fiduciary security, pledge or security over warehouse receipts.

Shares

Law No. 40 of 2007 regarding Limited Liability Company (Company Law) provides that shares can be secured by way of pledge or fiduciary security provided that the articles of association of the company do not stipulate otherwise. Given that enforcing fiduciary security is a less cumbersome process than enforcing a pledge, then provided the security grantor is an Indonesian party, fiduciary security over shares will be preferable to a pledge. Unlike the case for fiduciary security, no specific procedures are prescribed by law for enforcing a pledge. The current practice to enforce a pledge is that the pledgee will need to file a normal civil procedural action. This process would normally take three to five years if appealed as far as the Indonesian Supreme Court.

Intellectual property

The proper form of security to be established over intellectual property under Indonesian law is fiduciary security.

Bank accounts

Bank accounts can no longer be the object of a fiduciary security. In this regard, only objects with proprietary rights (hak kebendaan) can be subject to a fiduciary security. To replace fiduciary security, the form of security that is normally established over bank accounts is a pledge. However, note that the validity, effectiveness and enforceability of a pledge Although it is not expressly provided in the ICC, some scholars

are of the view that pledged assets are subject to “droit de suite”. In this regard, the pledgee may exercise its rights against the pledged property even if the property is found to be in the hands of third parties in the event that the pledgee has been involuntarily dispossessed of the property. Fiduciary security

Under Law No. 42 of 1999 regarding Fiduciary Security (Fiduciary Security Law), a fiduciary security is a security right over immovable and moveable goods, whether tangible or intangible, where the goods are not subject to:

• HT

• hypothec over registered ships with a minimum gross tonnage of 20 metric tons

• hypothec over aircraft or

• a pledge.

Other than inventories (where the security grantor is required to replace inventories to ensure the quantity of the collateral assets remains the same), the fiduciary security will follow the collateral assets regardless of any transfer of title to the collateral assets. The fiduciary security grantee has priority over other creditors in respect of collateral assets.

Hypothec

Hypothec is a form of security over immoveable assets, including ships with a minimum gross tonnage of 20 metric tons.

Security over Warehouse Receipts

Security can be established over commodities (ie, moveable goods that can be stored for a certain period of time in a warehouse and are generally tradable) by establishing security rights over the warehouse receipts for the relevant commodities (the title documents). The security grantee has priority over other creditors in respect of the commodities. It is important to note that:

• this security may only secure the security grantor’s debt (not third parties’ debt) payable to the security grantee (elucidation of Article 16 paragraph 1 of Government Regulation No. 36 of 2007, which is the implementing regulation of Law No. 9 of 2006 (as amended)

• the commodities can only be encumbered by one security over warehouse receipts and therefore this security

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The Company Law, following the Dutch Civil Law concept, adopts a two-tier management structure, comprising:

• a Board of Directors (Direksi) and

• a Board of Commissioners (Dewan Komisaris). The Board of Directors is responsible for the day-to-day management of the company. The Board of Commissioners is responsible for supervising the operations of the company by the Board of Directors and providing advice to the Board of Directors. It is common practice that certain extraordinary decisions of the Board of Directors require the approval of the Board of Commissioners, such as granting security over the company’s assets.

Regulation of commercial secured lending

Banking in Indonesia is currently regulated by the

Indonesian banking law, which applies to Indonesian banks and foreign banks that have a presence in Indonesia (in the form of either a branch office or a representative office). The banking law regulates banking activities, such as:

• business activities of banks

• licensing, form of legal entity and ownership of banks

• supervisory requirements

• board of directors and board of commissioners of banks and

• treatment of confidential information.

Separate banking regulations are also published under government regulations and/or by Bank Indonesia. However, it is important to note that by 31 December 2013, the OJK is expected to regulate, all banking activities other than monetary and payment system policy.

Registration and perfection of security

Indonesian law security other than pledges must be registered in order to be effective. While pledges do not generally require registration, a pledge of shares must be registered in the relevant company’s shareholders’ register. HT

An HT can be established by executing a deed of granting security right over a land title (Akta Pemberian Hak

Tanggungan) between the land titleholder, who acts as the

grantor, and the creditor, who acts as a grantee, before a over bank accounts is still unclear under Indonesian law,

since: (i) it is unclear whether a bank account constitutes an asset or claim upon which a valid pledge may be granted under Indonesian law, and (ii) if the pledgor is permitted to retain control over the bank accounts except in an event of default, then this may be deemed inconsistent with the nature of a pledge under Indonesian law.

Although it is possible for a creditor and the debtor to enter into an assignment of bank account agreement, such an assignment does not create a security interest capable of surviving insolvency or bankruptcy.

Receivables

The proper form of security to be established over receivables and future receivables (including insurance proceeds) is a fiduciary security.

Contractual rights

Other than rights to receive payment, a security may not be taken over contractual rights under Indonesian law. As an alternative, in practice, conditional assignments (and “step- in” rights) are often used. However, a conditional assignment is not considered a security under Indonesian law, but a contractual agreement.

Internal approvals required for granting security

rights

Articles of association for Indonesian companies typically provide that the board of directors of the company must obtain the prior approval for granting of a security interest from either the board of commissioners of the company or the general meeting of the company’s shareholders. If security is established over the company’s substantial assets (ie, more than 50 per cent of the total net assets of the company in one transaction or a series of transactions), then unless the articles of association require higher quorum and voting requirements, the establishment of the security requires the approval of a general meeting of shareholders with a minimum quorum of 75 per cent of the issued shares with valid voting rights, and the resolution must be approved by at least 75 per cent of the votes legally cast.

In the absence of a binding precedent or specific provisions under law, it is possible that an Indonesian court may require that a certain commercial interest exist or corporate benefit be derived before a company can issue a guarantee or provide a security interest over its assets to a third party, or before a company undertakes to indemnify a party for losses, costs, expenses, and the like caused by a third party.

Registration is essential in order to create valid security, as the fiduciary security rights will only be established upon their registration, and for the purposes of enforcement. An asset may only be subject to one fiduciary security. For a fiduciary security over receivables, the relevant account debtors must be notified or acknowledge the fiduciary security in order for it to become effective against them. Under Police Head Regulation No. 8 of 2011 on Executing Fiduciary Security Pacification (22 June 2011), an application can now be made to the police office in the location where the fiduciary is executed in order to have the execution ”pacified”. However, it is not yet clear how this new rule will operate in practice.

Pledge

A pledge in respect of tangible property will become effective upon the possession or control of the property by the pledgee and, in respect of intangible property, a notice of the pledge must be served to the relevant parties, eg, the company (for a pledge of shares) to make the pledge effective against them. A pledge is often made together with a Power of Attorney in favour of the pledgee authorising it to sell the collateral assets in the event of the pledgor’s default. In practice, to avoid any challenge to enforcement, the pledgee may need to obtain a court order through normal civil procedures before exercising the Power of Attorney to sell the collateral assets privately. A pledge over shares must be noted in the register of shareholders. The Company Law requires that any security over shares be noted in the register of shareholders, including the name and address of the security grantee, and the date of establishment of such security. In the case of scripless shares, the shareholder must notify the account holder to block the relevant share account with Indonesia’s central securities repository (PT Kustodian Sentral Efek Indonesia). Hypothec

Under the Shipping Law, ships that have been registered in the Indonesian Ships Registry (Daftar Kapal Indonesia) can be secured as a security by way of hypothec. The security is made by executing a Deed of Hypothec by the Registrar and Recorder of Changes of Names of Ships (Pejabat Pendaftar dan Pencatat Balik Nama Kapal) at the domicile where the ship is registered, and noting this in the Master List of Ship Registration.

Following the enactment of Law No. 1 of 2009 regarding Aviation, which contains the implementing provisions of the Land Deed Official (Pejabat Pembuat Akta Tanah or PPAT)

(Deed of HT). The Deed of HT must be executed in the Indonesian language using the standard form regulated by the State Minister of Agrarian Affairs/Chairman of National Land Agency, which can be amended by the parties to reflect more accurately the rights and obligations of the grantor and grantee under the HT.

A Deed of HT must be registered at the Land Office where the land is located by the relevant PPAT who prepared the Deed of HT. Security rights only become effective after registration. The Land Office will issue a certificate of security rights (Sertifikat Hak Tanggungan) noting the lender as a secured party over the land. Priority depends on the ranking of security rights. The certificate is made in a “grosse akta” or a deed having court executorial power. Under the HT law, parcels of land can be encumbered with more than one security right. The ranking of securities is determined based on the date of registration of the securities. If a debtor is in default, the first rank holder has priority to take the proceeds from the sale of land to recover the debt.

Fiduciary security

Under the Fiduciary Security Law, the grant of a fiduciary security must be made under a Deed of Grant of Fiduciary Security which must be made in the Indonesian language and before an Indonesian notary and contain the following information:

• the identity of the grantor and the grantee of the fiduciary security

• a reference to the underlying agreement

• a description of the object

• the secured amount and

• the value of the object.

Each fiduciary security (including any amendments that will result in a change to the fiduciary security certificates) must be registered with the Fiduciary Registration Office having jurisdiction over the grantor’s place of domicile. This also applies to fiduciary objects that are not located in the territory of the Republic of Indonesia. The Fiduciary Registration Office then issues a copy of the registry book posting in the form of a certificate of registration (Sertifikat

Jaminan Fidusia) that notes the lender as the secured party

and constitutes evidence of the registration.

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formed to manage all commercial offshore loans to Indonesia that were not loans from the Intergovernmental Group on Indonesia, Offshore Commercial Loan Team (Pinjaman

Komersial Luar Negeri) Team (PKLN Team). Loans managed

by the coordinating team include commercial offshore loans to the Government, state-owned companies and private companies. The loans that are required to be managed by the PKLN Team are:

• loans related to development projects that are “non- recourse”, “limited-recourse”, “advanced payment”, “trustee borrowing”, “leasing” and other loans

• loans related to development projects where financing is based on a build, operate and transfer model.

PD No. 39 of 1991 provides that any proposed borrowers of such offshore loans must apply for approval from the PKLN Team and submit complete information on the purpose of the loan.

Loans that do not require prior approval or management by the PKLN Team are as follows:

• short-term commercial offshore loans for trading

• offshore loans to private companies for financing development projects where the companies have no relation to the Government or state-owned companies by way of share participation or any other form and

• other offshore loans to be determined by the PKLN Team. However, it should be noted that although the exempted loans are not subject to approval and management, all offshore loans are subject to periodic reporting requirements to the PKLN Team.

Generally, it should be assumed that a corporate guarantee given by a state-owned company in favour of an offshore lender(s) will be subject to the requirement to obtain approval from the PKLN Team under PD No. 39 of 1991. The rationale for this assumption is that, if enforced, the corporate

guarantee would trigger obligations to make repayments from Indonesia to offshore accounts. As to corporate guarantee provided by Indonesian private companies, the corporate guarantee will need to be notified to the PKLN Team, the Ministry of Finance and Bank Indonesia and will be required to be regularly reported to Bank Indonesia when the

corporate guarantee becoming enforceable. Convention on International Interests in Mobile Equipment

(Cape Town Convention), subject to the satisfaction of certain requirements under the law, an Indonesian law hypothec should now create security rights over aircraft following the registration of the hypothec with the International Registry. The law also provides that Indonesia will also recognize the International Interests established over aircraft under a security agreement governed by foreign law, without any nexus.

It is also necessary for the aircraft security grantee to obtain Irrevocable Deregistration and Export Authorization (IDERA) and have the IDERA registered with and acknowledged by the Ministry of Transport.

Security over Warehouse Receipts

Security over warehouse receipts must be made in an Indonesian notarial deed. The deed must contain, among other things, the specification of the warehouse receipt to be encumbered, the secured amount and the market value of the commodities as at the loading in the warehouse. Although the law is silent on the language of the notarial deed, given the requirement to use the Indonesian language in agreements entered into by Indonesian parties (under Law No. 24 of 2009 on the National Flag, Language, Emblem, and Anthem), the notarial deed should be executed in the Indonesian language or in a dual language form.

The security must be registered with PT. Kliring Berjangka Indonesia (Persero), which will issue a confirmation of the registration to the security grantee, the security grantor and the warehouse management. By Government Regulation No. 36 of 2007, this confirmation will be issued within one day after the Registry receives the complete documents.

Granting guarantees

An Indonesian company may issue an upstream or downstream corporate guarantee to the extent that the guarantee is for the best interest of the company and subject to the Board of Directors obtaining the necessary approvals under the company’s articles of association. However, note that the position concerning the giving of guarantees by public companies is more complicated.

Offshore loans and guarantees

The Indonesian Government has regulated the use of offshore loans and guarantees for such loans by Indonesian companies since 1972. Through Presidential Decree No. 39 of 1991 regarding Coordination of Management of Commercial Offshore Loans (PD No. 39 of 1991), a coordinating team was

• a report on the signing of the loan agreement or the corporate guarantee becoming enforceable. The report can be submitted simultaneously with the report submitted to Bank Indonesia

• a quarterly report on the realisation or implementation of the loan agreement or corporate guarantee.

In practice, the report submitted to the PKLN Team will be in the same form as those submitted to Bank Indonesia and the Ministry of Finance.

Guarantees by public companies

Bapepam-LK requires certain procedures to be followed before a listed entity can provide a corporate guarantee, as stated under Chairman of Bapepam Decree No. KEP-614/ BL/2011 on Material Transactions and Change of Main Business Activities dated 28 November 2011 (Material Transaction Rules).

Under the Material Transaction Rules, a material transaction includes, among others:

• offering assets as security and/or

• providing of a corporate guarantee

where the value of the security or guarantee is at least 20 per cent of the company’s equity, whether given or conducted in one transaction or in a series of transactions for a similar purpose or activity.

Accordingly, depending on any monetary limitations with respect to the scope of the guarantee, the provision of a guarantee may be considered as a material transaction. Under the Material Transaction Rules, material transactions with a value of at least 20 per cent and up to 50 per cent of the company’s equity require public disclosure, an independent valuation, and a statement from the Board of Commissioners and the Board of Directors. Material transactions with a value exceeding 50 per cent of the company’s paid-up capital additionally require approval from an extraordinary general meeting of shareholders. However, there are some exceptions to the Material Transaction Rules, which include:

• a material transaction carried out with a subsidiary, where the public company or listed entity owns at least 99 per cent of the paid-up capital of the subsidiary

In addition, offshore loans and guarantees must be reported to Bank Indonesia (under Bank Indonesia Regulation No. 12/24/PBI/2010 dated 29 December 2010 regarding Obligation to Report Offshore Loans and its implementing regulations), the Ministry of Finance (under Minister of Finance Decree No. Kep.261/MK/IV/5/73 dated 3 May 1973 regarding the Implementation Rules for Obtaining Offshore Loans). Guarantees should be reported when they become enforceable.

Bank Indonesia reporting obligations

• Prior to obtaining long-term offshore loan facilities (ie, an offshore loan with a tenure of more than one year), Indonesian private non-bank companies are required to file with Bank Indonesia the following reports: (i) financial statement, (ii) financial ratio, (iii) credit rating report (if available), (iv) risk management analysis, and (v) offshore loan plan for a period of one year. The reports must be submitted at the latest by 10 March of the relevant year. Any amendments to the latter two reports must be submitted by 1 July of the relevant year.

• Regardless of the tenure of the offshore loans, companies