A more recent version of these Main Clauses In A Guarantee Crib Sheet notes – written by Cambridge And Oxilp And College Of Law students – is available here.
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Main Clauses in a Guarantee 1) Pure Guarantee a. Provides that the guarantor will automatically be in breach of its obligations under the guarantee if a borrower fails to fulfil its obligations b. Gives a lender an action in damages against the guarantor as it makes the guarantor in breach of its own agreement b.i. Lender has a duty to mitigate its loss in a damages claim b.ii. Hope v Premierpace (Europe) Limited - Lender cannot bring insolvency proceedings against the guarantor in a damages claim b.ii.1. McGuinness the High Court cast some doubt on this decision 2) Conditional Payment Guarantee a. A Guarantor promises to fulfil the obligation if a borrower is in breach a.i. It does not automatically put the guarantor in breach of its own obligations under the guarantee b. Gives a lender an action in debt b.i. Lender has no duty to mitigate in a debt claim b.ii. McGuinness A debt obligation on the part of the guarantor allows the lender, in principal, to be able to pursue the guarantor in insolvency proceedings 3) Indemnity a. Creates a binding obligation for a guarantor to indemnify a lender for any loss not covered under the guarantee b. If the guarantee is set aside for any reason, this clause will remain valid b.i. More watertight for the lender c. HOWEVER although an indemnity is a primary obligation, it is only as good as the person giving it c.i. Is the guarantor solvent?
4) Continuing Guarantee a. Often applies in the case of a revolving loan facility b. Overrides the rule in Clayton's Case (first-in, first-out principle) b.i. Parties will want this included to ensure that the guarantor remains liable for the amounts that are paid off and then redrawn under the revolving credit agreement b.ii. If the clause was not included then the liability of the guarantor would be discharged for amounts repaid. b.ii.1. When new amounts are redrawn, the guarantor would no longer be liable for them 5) Reinstatement a. Protects a bank on the insolvency of the borrower a.i. If a borrower faces insolvency and any repayments to the bank are subsequently made void or unlawful as a result of 238, 239 or 245 IA 1986, then a guarantor will still be liable for these amounts 6) Waiver of Defences a. Waives all the common law defences that would make the guarantee agreement void b. Allows the bank to vary or make alterations to the primary obligation that will not vary or release the guarantee agreement or the guarantor b.i. The guarantee obligation is secondary and therefore should the primary obligation of the borrower be varied, such as granting it extra time, this waiver of defences prevents the extra time being granted to the secondary guarantor obligation as well
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