Personal Guarantees for Small Business Loans: What Every Business Owner Should Know

PERSONAL GUARANTEE AGREEMENT

IDENTIFICATION OF PARTIES

THIS PERSONAL GUARANTEE AGREEMENT (the "Agreement" or "Guarantee") is made and entered into as of [DATE] (the "Effective Date"), by and among:

GUARANTOR: [GUARANTOR NAME], an individual residing at [GUARANTOR ADDRESS], with contact information as follows: telephone: [GUARANTOR PHONE], email: [GUARANTOR EMAIL] (hereinafter referred to as the "Guarantor");

BORROWER: [BORROWER NAME], a [BUSINESS ENTITY TYPE] organized and existing under the laws of [STATE/JURISDICTION], with its principal place of business located at [BORROWER ADDRESS] (hereinafter referred to as the "Borrower"); and

LENDER: [LENDER NAME], a [LENDER ENTITY TYPE] organized and existing under the laws of [STATE/JURISDICTION], with its principal place of business located at [LENDER ADDRESS], with contact information as follows: telephone: [LENDER PHONE], email: [LENDER EMAIL] (hereinafter referred to as the "Lender").

RECITALS

WHEREAS, the Borrower has applied to the Lender for a loan in the principal amount of [LOAN AMOUNT] (the "Loan") as more particularly described in that certain Loan Agreement dated [LOAN AGREEMENT DATE] between the Borrower and the Lender (the "Loan Agreement");

WHEREAS, the Loan is being made for the purpose of [LOAN PURPOSE];

WHEREAS, the Lender is unwilling to extend or maintain credit to the Borrower without receiving a personal guarantee from the Guarantor;

WHEREAS, the Guarantor is [RELATIONSHIP TO BORROWER, e.g., "the principal shareholder and chief executive officer of the Borrower"] and will derive substantial direct and indirect benefits from the extension of credit to the Borrower; and

WHEREAS, the Guarantor is willing to guarantee the obligations of the Borrower to the Lender under the Loan Agreement and related loan documents.

NOW, THEREFORE, in consideration of the Lender extending the Loan to the Borrower, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:

1. GUARANTEE

1.1 Nature and Scope of Guarantee

The Guarantor hereby irrevocably, absolutely, and unconditionally guarantees to the Lender the full and punctual payment and performance when due (whether at stated maturity, by acceleration, or otherwise) of all present and future indebtedness, liabilities, and obligations of the Borrower to the Lender arising under or in connection with the Loan Agreement and any and all other loan documents executed in connection therewith (collectively, the "Loan Documents"), including, without limitation, all principal, interest, fees, charges, expenses, attorneys' fees and other costs and sums that may be due now or in the future under the Loan Documents (collectively, the "Guaranteed Obligations").

1.2 Type of Guarantee

This Guarantee is [GUARANTEE TYPE: "unlimited" OR "limited to the maximum amount of $[MAXIMUM GUARANTEE AMOUNT]"]. [IF LIMITED, ADD: "Notwithstanding the foregoing, the Guarantor's maximum liability under this Guarantee shall not exceed $[MAXIMUM GUARANTEE AMOUNT], plus all interest accruing on such amount and all legal fees, costs, and expenses incurred by the Lender in enforcing this Guarantee."]

1.3 Joint and Several Liability

[IF MULTIPLE GUARANTORS: "The obligations of the Guarantor under this Guarantee are joint and several with the obligations of any other guarantor of the Guaranteed Obligations, and separate actions may be brought against the Guarantor whether or not actions are brought against the Borrower or any other guarantor."] [IF SOLE GUARANTOR: "The Guarantor acknowledges and agrees that the Guarantor is solely responsible for the Guaranteed Obligations under this Guarantee."]

1.4 Continuing Guarantee

This Guarantee is a continuing guarantee and shall remain in full force and effect until all of the Guaranteed Obligations have been indefeasibly paid in full and all commitments of the Lender to extend credit to the Borrower have been terminated. This Guarantee shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Lender upon the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, all as though such payment had not been made.

1.5 Nature of Guarantee

This Guarantee is [SECURED/UNSECURED]. [IF SECURED, ADD: "The Guarantor hereby grants to the Lender a security interest in the following assets of the Guarantor (the "Collateral") to secure the Guarantor's obligations under this Guarantee: [DESCRIPTION OF COLLATERAL]. The Guarantor agrees to execute and deliver to the Lender all documents that the Lender reasonably requests to perfect and maintain the Lender's security interest in the Collateral."]

2. GUARANTOR'S OBLIGATIONS

2.1 Primary Obligation

The liability of the Guarantor under this Guarantee shall be primary, direct, and immediate, and not conditional or contingent upon the pursuit of any remedies against the Borrower or any other person, nor against any collateral available to the Lender. The Lender shall not be required to prosecute collection, enforcement, or other remedies against the Borrower or any other guarantor, or to enforce or resort to any collateral for the repayment of the Guaranteed Obligations, before calling on the Guarantor for payment.

2.2 Payment Upon Demand

If the Borrower fails to pay any Guaranteed Obligation when due (whether at stated maturity, by acceleration, or otherwise), the Guarantor shall, upon demand by the Lender, immediately pay the Guaranteed Obligations then due in full. The Guarantor shall make each payment to the Lender in immediately available funds as directed by the Lender, without set-off, counterclaim, or other defense.

2.3 Costs of Enforcement

The Guarantor shall pay to the Lender, on demand, all reasonable costs and expenses, including, without limitation, attorneys' fees and legal expenses, incurred by the Lender in connection with the enforcement of this Guarantee or the collection of any sums due under this Guarantee.

2.4 Interest on Unpaid Amounts

Any amounts due under this Guarantee that are not paid when due shall bear interest at the default rate specified in the Loan Agreement from the date due until paid in full.

3. EVENTS OF DEFAULT

3.1 Definition of Default

For purposes of this Guarantee, a "Default" shall occur upon the occurrence of any of the following events:

(a) The Borrower fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of the Loan or any other Guaranteed Obligation;

(b) The Borrower or the Guarantor fails to perform or observe any covenant, condition, or agreement contained in the Loan Documents or this Guarantee;

(c) Any representation, warranty, or certification made by the Borrower or the Guarantor in the Loan Documents or this Guarantee, or in any statement or certificate furnished pursuant thereto, proves to have been incorrect in any material respect when made;

(d) The Borrower or the Guarantor (i) commences any case, proceeding, or other action under any bankruptcy, insolvency, or similar law, (ii) has any such case, proceeding, or other action commenced against it that is not dismissed within 60 days, (iii) makes a general assignment for the benefit of creditors, (iv) has a receiver, trustee, custodian, or similar official appointed for it or for a substantial part of its property, or (v) is generally unable to pay its debts as they become due;

(e) The Guarantor contests the validity or enforceability of this Guarantee or denies having any liability or obligation hereunder; or

(f) Any other event of default specified in the Loan Agreement or other Loan Documents occurs.

3.2 Acceleration

Upon the occurrence of a Default, the Lender may, at its option, declare all Guaranteed Obligations to be immediately due and payable, whereupon the same shall become immediately due and payable by the Guarantor.

4. WAIVERS BY GUARANTOR

4.1 Waiver of Defenses

The Guarantor hereby waives any and all defenses to enforcement of this Guarantee based upon:

(a) The incapacity, lack of authority, death, or disability of the Borrower, any other guarantor, or any other person;

(b) The failure of the Lender to properly obtain, perfect, or maintain any security interest or lien on any collateral securing the Guaranteed Obligations;

(c) The unenforceability, invalidity, or non-perfection of any Loan Documents or any security interest or lien on any collateral securing the Guaranteed Obligations;

(d) Any statute of limitations or other law that may provide a defense to the Guarantor's obligations hereunder;

(e) Any modification, amendment, waiver, extension, renewal, or increase in the Guaranteed Obligations;

(f) Any change in the corporate existence, structure, or ownership of the Borrower;

(g) Any insolvency, bankruptcy, reorganization, or other similar proceeding affecting the Borrower or its assets or any resulting release or discharge of any obligation of the Borrower; and

(h) Any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.

4.2 Waiver of Notice

The Guarantor hereby waives:

(a) Notice of acceptance of this Guarantee;

(b) Notice of the creation, existence, or incurrence of new or additional indebtedness, liabilities, or obligations of the Borrower to the Lender;

(c) Notice of any adverse change in the financial condition of the Borrower or of any other fact that might increase the Guarantor's risk;

(d) Notice of presentment for payment, demand, protest, and notice of dishonor, nonpayment, or other default with respect to any of the Guaranteed Obligations;

(e) Notice of the Lender's obtaining, amending, substituting for, releasing, waiving, or modifying any security interest or lien on any collateral securing the Guaranteed Obligations;

(f) Notice of the Lender's settlement, compromise, acceleration, or restructuring of any of the Guaranteed Obligations; and

(g) Notice of any other matters for which notice might otherwise be required by law.

4.3 Waiver of Subrogation

Until the Guaranteed Obligations have been indefeasibly paid in full and all commitments of the Lender to extend credit to the Borrower have been terminated, the Guarantor waives and shall not exercise any rights that the Guarantor may have against the Borrower or any collateral, including, without limitation:

(a) Any right of subrogation to the rights of the Lender against the Borrower;

(b) Any right of indemnification or contribution against the Borrower or any other guarantor;

(c) Any right to enforce any remedy that the Lender now has or may hereafter have against the Borrower; and

(d) Any benefit of, and any right to participate in, any collateral now or hereafter held by the Lender.

5. SUBORDINATION

5.1 Subordination of Borrower's Indebtedness

The Guarantor hereby subordinates to the Guaranteed Obligations any and all claims and rights the Guarantor may have against the Borrower, including, without limitation, any right of payment, subrogation, contribution, reimbursement, indemnification, or otherwise, arising from any payment made by the Guarantor under this Guarantee. Until the Guaranteed Obligations have been indefeasibly paid in full and all commitments of the Lender to extend credit to the Borrower have been terminated, the Guarantor shall not demand, sue for, or otherwise attempt to collect any indebtedness of the Borrower to the Guarantor.

5.2 Payments Held in Trust

If, notwithstanding Section 5.1, the Guarantor receives any payment from the Borrower in violation of this Guarantee, the Guarantor shall hold such payment in trust for the Lender and shall promptly deliver such payment to the Lender in the form received.

6. REPRESENTATIONS AND WARRANTIES

6.1 Guarantor's Representations and Warranties

The Guarantor hereby represents and warrants to the Lender as follows:

(a) The Guarantor has the full legal capacity to enter into and perform this Guarantee;

(b) This Guarantee constitutes the legal, valid, and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms;

(c) The execution, delivery, and performance of this Guarantee by the Guarantor do not and will not conflict with, result in a breach of, or constitute a default under any agreement or instrument to which the Guarantor is a party or by which the Guarantor or the Guarantor's property is bound;

(d) There is no litigation, proceeding, or investigation pending or, to the knowledge of the Guarantor, threatened against the Guarantor that could adversely affect the validity or enforceability of this Guarantee or the ability of the Guarantor to fulfill the Guarantor's obligations under this Guarantee;

(e) The Guarantor is not insolvent, and the execution and delivery of this Guarantee will not render the Guarantor insolvent;

(f) The Guarantor has received and reviewed copies of all Loan Documents;

(g) The Guarantor will receive direct and indirect benefits from the extension of credit to the Borrower; and

(h) The Guarantor has established adequate means of obtaining information from the Borrower on a continuing basis regarding the Borrower's financial condition.

6.2 Financial Condition Representations

The Guarantor represents and warrants that:

(a) The financial statements and other financial information of the Guarantor previously furnished to the Lender are true, complete, and correct in all material respects and fairly present the financial condition of the Guarantor as of the dates thereof;

(b) There has been no material adverse change in the Guarantor's financial condition since the date of the most recent financial statements furnished to the Lender; and

(c) The Guarantor has not incurred any material liability, direct or contingent, since the date of the most recent financial statements furnished to the Lender.

7. COVENANTS

7.1 Affirmative Covenants

Until all Guaranteed Obligations have been indefeasibly paid in full and all commitments of the Lender to extend credit to the Borrower have been terminated, the Guarantor shall:

(a) Promptly provide the Lender with such financial statements and other information relating to the Guarantor's financial condition as the Lender may reasonably request from time to time;

(b) Promptly notify the Lender of any material adverse change in the Guarantor's financial condition or of any litigation, proceeding, or investigation pending or threatened against the Guarantor that could adversely affect the validity or enforceability of this Guarantee or the ability of the Guarantor to fulfill the Guarantor's obligations under this Guarantee;

(c) File all tax returns and pay all taxes when due, except those being contested in good faith by appropriate proceedings;

(d) Maintain the Guarantor's legal existence and right to conduct business; and

(e) Comply with all applicable laws, rules, regulations, and orders.

7.2 Negative Covenants

Until all Guaranteed Obligations have been indefeasibly paid in full and all commitments of the Lender to extend credit to the Borrower have been terminated, the Guarantor shall not, without the prior written consent of the Lender:

(a) Transfer, sell, lease, or otherwise dispose of a substantial portion of the Guarantor's assets, except in the ordinary course of the Guarantor's personal financial affairs;

(b) Incur, assume, or permit to exist any indebtedness or liability for borrowed money that would materially impair the Guarantor's ability to perform under this Guarantee;

(c) Create or permit to exist any lien, security interest, or other encumbrance on the Guarantor's assets that would materially impair the Guarantor's ability to perform under this Guarantee; or

(d) Make any material change in the Guarantor's financial structure or in any of the Guarantor's business objectives, purposes, or operations that would materially adversely affect the ability of the Guarantor to pay the Guaranteed Obligations.

8. GENERAL PROVISIONS

8.1 Governing Law

This Guarantee shall be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE], without giving effect to any choice of law or conflict of law provisions.

8.2 Jurisdiction and Venue

The Guarantor hereby irrevocably submits to the jurisdiction of the courts of the State of [JURISDICTION STATE] and of the United States District Courts located in the [JURISDICTION DISTRICT] in any action or proceeding arising out of or relating to this Guarantee. The Guarantor hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such courts. The Guarantor hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection that the Guarantor may now or hereafter have to the laying of venue of any such action or proceeding in any such court.

8.3 Attorneys' Fees

In the event any legal action or proceeding is commenced to interpret or enforce the terms of this Guarantee, or to recover damages for the breach thereof, the party prevailing in any such action or proceeding shall be entitled to recover from the non-prevailing party all reasonable attorneys' fees, costs, and expenses incurred by the prevailing party. As used herein, "attorneys' fees" shall mean the full and actual cost of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorney performing such services and shall not be limited to "reasonable attorneys' fees" as defined in any statute or rule of court.

8.4 Severability

If any provision of this Guarantee, or any portion thereof, is held to be invalid, illegal, void, or unenforceable by any court or tribunal of competent jurisdiction, the remainder of this Guarantee shall remain in full force and effect to the maximum extent permitted by law. The parties agree that any such invalid, illegal, void, or unenforceable provision shall be modified and limited in its effect to the extent necessary to cause it to be enforceable, or if such modification is not possible, shall be deemed severed from this Guarantee. In such event, the parties shall negotiate in good faith to replace any invalid, illegal, void, or unenforceable provision with a valid, legal, and enforceable provision that corresponds as closely as possible to the parties' original intent and economic expectations. The invalidity or unenforceability of any provision in one jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

8.5 Integration

This Guarantee constitutes the entire agreement between the Guarantor and the Lender with respect to the subject matter hereof and supersedes all prior negotiations, understandings, and agreements between such parties, whether oral or written. There are no representations, understandings, agreements, or conditions not specified in this Guarantee.

8.6 Amendments

This Guarantee may be amended, modified, or supplemented only by a written instrument executed by the Guarantor and the Lender. No waiver of any provision of this Guarantee shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.

8.7 Assignment

The Lender may, without notice to or consent of the Guarantor, assign or transfer all or any part of the Guaranteed Obligations and this Guarantee to any person or entity. In such event, each and every immediate and successive assignee, transferee, or holder of all or any part of the Guaranteed Obligations shall have the right to enforce this Guarantee, by legal action or otherwise, as fully as if such assignee, transferee, or holder were herein by name specifically given such rights. The Guarantor may not assign or transfer the Guarantor's rights or obligations under this Guarantee without the prior written consent of the Lender.

8.8 Successors and Assigns

This Guarantee shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns.

8.9 Notices

All notices, requests, demands, and other communications required or permitted to be given under this Guarantee shall be in writing and shall be deemed to have been duly given if delivered personally, sent by registered or certified mail (return receipt requested), sent by overnight courier, or sent by electronic mail (with confirmation of receipt) to the parties at the addresses specified in the preamble to this Guarantee (or at such other address as shall be specified by the parties by like notice). Notices shall be deemed received on the date of personal delivery, three business days after mailing if sent by registered or certified mail, one business day after deposit with an overnight courier, or on the date electronic mail is sent if sent during normal business hours, or the next business day if sent after normal business hours.

8.10 Counterparts

This Guarantee may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Guarantee by facsimile or electronic transmission shall be as effective as delivery of a manually executed counterpart.

8.11 No Waiver by Lender

No failure or delay on the part of the Lender in exercising any right, power, or privilege under this Guarantee shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.

9. TERMINATION AND RELEASE

9.1 Termination Conditions

This Guarantee shall terminate and be of no further force or effect upon the earliest to occur of:

(a) The indefeasible payment in full of all Guaranteed Obligations and the termination of all commitments of the Lender to extend credit to the Borrower;

(b) The express written consent of the Lender; or

(c) The consummation of any transaction or series of related transactions as a result of which the Borrower ceases to be a subsidiary or affiliate of the Guarantor, provided that the Lender has given its prior written consent to such transaction(s) and the release of the Guarantor.

9.2 Release Provisions

Upon termination of this Guarantee pursuant to Section 9.1, the Lender shall, at the request and expense of the Guarantor, execute and deliver to the Guarantor a written release confirming the termination of this Guarantee and the release of the Guarantor from all liability hereunder, except for any obligations or liabilities that expressly survive such termination.

10. RISK DISCLOSURE

10.1 Risk Acknowledgment

THE GUARANTOR ACKNOWLEDGES AND AGREES THAT:

(a) BY SIGNING THIS GUARANTEE, THE GUARANTOR IS PERSONALLY LIABLE FOR PAYMENT OF THE GUARANTEED OBLIGATIONS;

(b) IF THE BORROWER FAILS TO MAKE ANY PAYMENT WHEN DUE OR OTHERWISE DEFAULTS UNDER THE LOAN DOCUMENTS, THE LENDER CAN DEMAND PAYMENT FROM THE GUARANTOR WITHOUT FIRST ATTEMPTING TO COLLECT FROM THE BORROWER OR ANY OTHER PERSON OR FROM ANY COLLATERAL;

(c) THE GUARANTOR'S PERSONAL ASSETS, INCLUDING THE GUARANTOR'S HOME, PERSONAL PROPERTY, AND OTHER ASSETS, MAY BE SUBJECT TO SEIZURE AND SALE TO SATISFY THE GUARANTEED OBLIGATIONS;

(d) THE GUARANTOR'S LIABILITY UNDER THIS GUARANTEE COULD SUBSTANTIALLY EXCEED THE VALUE OF ANY BENEFIT THE GUARANTOR MAY RECEIVE FROM THE LOAN; AND

(e) THE GUARANTOR HAS CAREFULLY READ THIS GUARANTEE AND UNDERSTANDS ITS TERMS AND CONSEQUENCES.

10.2 Independent Legal Advice

THE GUARANTOR ACKNOWLEDGES THAT:

(a) THE LENDER HAS RECOMMENDED THAT THE GUARANTOR OBTAIN INDEPENDENT LEGAL ADVICE BEFORE SIGNING THIS GUARANTEE;

(b) THE GUARANTOR HAS HAD THE OPPORTUNITY TO SEEK AND OBTAIN INDEPENDENT LEGAL ADVICE CONCERNING THE MEANING AND CONSEQUENCES OF SIGNING THIS GUARANTEE; AND

(c) THE GUARANTOR IS SIGNING THIS GUARANTEE FREELY AND VOLUNTARILY, WITHOUT ANY PRESSURE OR UNDUE INFLUENCE FROM ANY PERSON.

IN WITNESS WHEREOF, the Guarantor has executed this Personal Guarantee as of the Effective Date.

GUARANTOR:

[GUARANTOR NAME]

ACKNOWLEDGED AND ACCEPTED:

LENDER: [LENDER NAME]

By: ________________________________ Name: [AUTHORIZED SIGNATORY NAME] Title: [AUTHORIZED SIGNATORY TITLE]

BORROWER: [BORROWER NAME]

By: ________________________________ Name: [AUTHORIZED SIGNATORY NAME] Title: [AUTHORIZED SIGNATORY TITLE]