NOTE: This document does not provide legal advice – it is only intended as a discussion draft to be
updated and modified to fit the circumstances. The publishers and authors shall not be liable to any person
with respect to any loss or damages caused or alleged to be caused directly or indirectly by the information
or any mistake in this document. In particular, all statutory references should be checked and users are
reminded that changes are continually being made to the law and the document will not be up to date. [25
August 2011]
TO:
of
Dated:
1.
Guarantee and Indemnity
I,
of
(the "Guarantor") in consideration
of your making or continuing advances or loans or supplying or continuing to supply goods or
services or extending or continuing credit to 1[
of
(the "
")] [the persons whose names and addresses are set out in the
schedule to this guarantee carrying on business in partnership under the name [
]
at [
] (all of which persons are called the "Obligor" in this
guarantee)] [
Limited whose registered office is at [
] (the
"Obligor")] hereby irrevocably and unconditionally guarantee to you the due performance by
the Obligor of all its obligations to you and the discharge of all its liabilities to you of
whatsoever nature and whether actual or contingent (all of which liabilities and obligations
are called the "Obligor's Liabilities" in this guarantee). As a separate and independent
stipulation I also agree to indemnify you and hold you harmless against any loss damages
costs and expenses which you may suffer or incur by reason of your entering or having
entered into any transaction with the Obligor or by reason of your entering or having entered
into any transaction with the Obligor or by reason of any default of the Obligor in discharging
the Obligor's Liabilities 2[PROVIDED THAT the total sum recoverable by you from me
under this guarantee shall not exceed the sum of £
plus interest thereon at the rate
specified in clause 9 from the date of your demand for payment].
1
Delete as appropriate
2
Delete if there is to be no limit on liability
LENDING - PERSONAL GUARANTEE
2.
Continuing Guarantee
This guarantee and indemnity shall not be considered as satisfied by any intermediate
payment or satisfaction of the Obligor's Liabilities but shall be a continuing guarantee for the
Obligor's Liabilities until the expiry of three calendar months written notice of discontinuance
from me to you and thereafter my liability under this guarantee shall be limited to the amount
of the Obligor's Liabilities as at the date of expiry of such notice including contingent
liabilities and all liabilities of the Obligor to you which arise out of any contract or
arrangement between you and the Obligor entered into prior to the expiry of such notice
whether or not any such liability was in existence at the date of such expiry. I shall not
however be liable under this guarantee unless you have first made a demand of the Obligor
which has not been complied with.
3.
Recovery as Principal Debtor
In respect of this guarantee and indemnity I shall as between myself and you be deemed to be
a principal debtor and accordingly you shall be at liberty without any obligation whatsoever to
advise me and without affecting your rights against me at any time to withdraw or vary any
credit to the Obligor to vary exchange abstain from perfecting or release any other securities
at any time held by you for or on account of all or any part of the Obligor's Liabilities to
compound with give time to and/or make any other arrangements with the Obligor. Any sum
which might not be recoverable from me as guarantor for any reason whatsoever whether on
account of any legal disability or incapacity of the Obligor or any other matter whatsoever
which might be a defence as between you and the Obligor shall nevertheless be recoverable
from me as a principal debtor on demand.
4.
Additional Security
This guarantee and indemnity shall be in addition to and shall not be in any way prejudiced by
any other security at any time held by you for all or any part of the Obligor's Liabilities nor
shall such other security or any lien to which you may be otherwise entitled or the liability of
any person not party to this guarantee for all or any part of the Obligor's Liabilities be
prejudiced or affected by this guarantee and indemnity. And you may at your discretion
release give time for payment to or make any other arrangement with any such other person
without prejudice to any liability under this guarantee.
5.
Obligor's Insolvency and Suspense Account
I agree that I shall not be entitled as against you to any right of proof in the insolvency of the
Obligor whether in respect of my rights as a surety or any other liability of the Obligor to me
unless and until the whole of the Obligor's Liabilities shall have first been completely
discharged. And further for the purpose of enabling you to sue the Obligor or prove in the
insolvency of the Obligor for the whole of the Obligor's Liabilities or to preserve intact the
liability of any other party you may at any time keep for such time as you may think prudent
any moneys realised under this guarantee in a separate or suspense account without any
obligation on your part to apply the same or any part thereof in or towards the discharge of the
Obligor's Liabilities.
-2LENDING - PERSONAL GUARANTEE
6.
Non-enforcement by Guarantor of Rights
I shall not (without your prior written consent) so long as the Obligor remains under any
actual and/or contingent liability to you:
3
[7.
(a)
in respect of any sum paid by me under or in respect of this guarantee, seek to enforce
repayment by subrogation or otherwise or to exercise any other rights or legal
remedies of any kind which may accrue howsoever to me in respect of such amount;
or
(b)
claim or accept payment of any other moneys for the time being due to me by the
Obligor on any account whatsoever or exercise any other right or remedy which I have
in respect thereof or assign any benefits thereof; or
(c)
take any charge or other security over the assets of the Obligor to secure the liability
of the Obligor to me in respect of my liability under this guarantee. And any such
charge or security which I may have taken or may take whether with or without such
consent shall be a security to you for the fulfilment of my obligations under this
guarantee.
Obligor as Partnership
As the Obligor is a partnership then references to the Obligor include all persons carrying on
business in the name of or in succession to the partnership and each of them notwithstanding
that by death retirement or admission of partners or other cause the constitution of the
partnership may have been partially or wholly varied and in the event of the dissolution of the
partnership (other than dissolution by reason only of any change in the partners of the
partnership) this guarantee shall extend to all monies owing and liabilities incurred in the full
name until receipt by you of actual notice of such dissolution.]
8.
Indemnity as to Interest
Any sum due from me under this guarantee shall carry interest both before and after judgment
at the rate of 2 per cent. per annum over the base rate of National Westminster Bank plc from
time to time (or if such rate cannot be determined for any reason then at a reasonable rate)
from date of demand by you upon me for payment until payment and such interest shall be
compounded with quarterly rests.
9.
Further Demands
No demand made by you shall prejudice or restrict your rights to make further or other
demands.
3
Delete if Obligor is not a partnership
-3LENDING - PERSONAL GUARANTEE
10.
Provisions Severable
Each of the provisions of this guarantee is severable and distinct from the others and if at any
time one or more of such provisions is or becomes invalid illegal or unenforceable, the
validity legality and enforceability of the remaining provisions of this guarantee shall not in
any way be affected prejudiced or impaired thereby.
11.
Death
This guarantee and indemnity shall not be determined or affected by my death and shall be
binding in all respects on my personal representatives and successors in title.
12.
Clause Headings
The headings to clauses and the underlining are for convenience only and have no legal effect.
13.
Notices
Any demand under this guarantee shall be given in writing or by cable, telex or facsimile
addressed to me at Messrs.
(ref
). A demand so made shall be deemed to have
been duly made, if left at such address, on the day it was so left or, if sent by first class post,
two weekdays after the time when the same was put in the post and in proving delivery it shall
be sufficient to prove that the same was properly addressed, stamped (at the first class rate to
be sent to an address within the United Kingdom) and put in the post. Any such demand sent
by cable, telex or facsimile shall be deemed to have been duly made at the time of despatch.
14.
Jurisdiction
I agree that any legal action or proceeding arising out of or in connection with this guarantee
and indemnity may be brought in the High Court of Justice in England, irrevocably submit to
the jurisdiction of such court and agree that any writ, judgment or other notice of legal process
shall be sufficiently served if delivered to me at
(ref ). The submission to such
jurisdiction shall not (and shall not be construed so as to) limit your rights to take proceedings
against me in whatsoever jurisdictions shall to you seem fit nor shall the taking of proceedings
in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction.
15.
Governing Law
This guarantee shall be governed by and construed in accordance with English law.
-4LENDING - PERSONAL GUARANTEE
4
EXECUTED as a DEED
by
in the presence of:
4
[SCHEDULE]
)
)
)
Delete if Obligor is not a partnership
-5LENDING - PERSONAL GUARANTEE
NOTE: This document does not provide legal advice – it is only intended as a discussion draft to be
updated and modified to fit the circumstances. The publishers and authors shall not be liable to any person
with respect to any loss or damages caused or alleged to be caused directly or indirectly by the information
or any mistake in this document. In particular, all statutory references should be checked and users are
reminded that changes are continually being made to the law and the document will not be up to date. [25
August 2011]
DATED
(1)
- and (2)
PERSONAL GUARANTEE OF
[individual/partnership/limited company]
LENDING - PERSONAL GUARANTEE