The Guarantee and Indemnity Agreement is a critical security document used in commercial and financial transactions under United States law when additional assurance is required for a party's obligations. It is commonly used in lending transactions, corporate finance, real estate deals, and commercial contracts where one party seeks additional security for another's obligations. The agreement combines two distinct legal concepts: a guarantee (a promise to pay another's debt) and an indemnity (a primary obligation to protect against loss). This document is essential when a lender or contracting party requires additional security beyond the principal debtor's covenant, particularly in high-value transactions or when dealing with special purpose vehicles or subsidiaries. The agreement must comply with both federal and state-specific requirements, including the Statute of Frauds and the Uniform Commercial Code, and may need to address specific state law requirements regarding enforceability and consumer protection.
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1. Parties: Identifies all parties to the agreement including the guarantor(s), creditor/beneficiary, and reference to the principal debtor
2. Background: Sets out the context of the guarantee, including reference to the principal agreement or debt being guaranteed
3. Definitions: Defines key terms used throughout the agreement, including 'Guaranteed Obligations' and 'Enforcement Event'
4. Guarantee: Details the primary guarantee obligations, including scope and nature of the guarantee
5. Indemnity: Specifies the indemnity obligations separate from the guarantee provisions
6. Nature of Guarantee and Indemnity: Establishes whether the guarantee is continuing, unconditional, irrevocable, and/or joint and several
7. Representations and Warranties: Sets out guarantor's representations regarding their capacity, authority, and financial condition
8. Preservation of Rights: Explains how the guarantee remains valid despite various changes or circumstances
9. Payments: Details payment obligations, including timing, method, and currency of payments
10. Costs and Expenses: Allocates responsibility for costs related to preparation, enforcement, and amendments
11. Enforcement: Specifies when and how the guarantee can be enforced
12. Assignment and Transfer: Addresses the ability to transfer or assign rights under the guarantee
13. Notices: Specifies how formal communications between parties should be made
14. Governing Law and Jurisdiction: Specifies applicable law and courts for dispute resolution
1. Security: Include when the guarantee is secured by specific assets or collateral
2. Multiple Guarantors: Include when there are multiple guarantors to address joint and several liability
3. Limited Recourse: Include when the guarantee is limited to specific assets or amounts
4. Currency Indemnity: Include for cross-border transactions involving multiple currencies
5. Tax Gross-Up: Include when tax obligations need to be addressed explicitly
6. Financial Covenants: Include when ongoing financial requirements are imposed on the guarantor
7. Power of Attorney: Include when the beneficiary requires power to act on behalf of the guarantor in specific circumstances
8. Subordination: Include when the guarantee needs to be subordinated to other obligations
1. Guaranteed Obligations: Detailed description of the obligations being guaranteed
2. Security Assets: List and description of any assets securing the guarantee
3. Guarantor Information: Detailed information about each guarantor including address and registration details
4. Form of Demand: Template for making a demand under the guarantee
5. Principal Agreement: Copy or summary of the principal agreement being guaranteed
6. Financial Thresholds: Details of any financial limits or thresholds applicable to the guarantee
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