A guaranty agreement is a contract between two parties where one party agrees to pay a debt or perform a duty in the event that the original party fails to do so. The party who makes the guaranty is called the guarantor. An agreement of this nature is often used in real estate, insurance, or financial transactions.
A guaranty is sometimes called a guarantee or a warranty. A guaranty agreement can be absolute, meaning the guarantor will assume the obligation for any reason. Or it can be conditional, meaning the guarantor will assume the obligation under specific circumstances.
Below is a list of common sections included in Guaranty Agreement. These sections are linked to the below sample agreement for you to explore.
GUARANTY AGREEMENT, dated as of February 19, 2010 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “ Guaranty ”), by HARRAH’S ENTERTAINMENT, INC., a Delaware corporation (together with its successors and permitted assigns, “ Guarantor ”), for the benefit of WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-TFL2, (together with its successors and assigns, “ Lender ”).
WHEREAS, pursuant to that certain Amended and Restated Senior Note, dated as of the date hereof (as the same may be amended, restated, replaced supplemented or otherwise modified from time to time, the “ Note ”), executed by PHW LAS VEGAS, LLC, a Nevada limited liability company (“ Borrower ”), payable to the order of Lender in the original principal amount of up to $554,340,000, Borrower is indebted, and may from time to time be further indebted, to Lender with respect to a loan (the “ Loan ”) made pursuant to that certain Amended and Restated Loan Agreement, dated as of the date hereof (as amended, restated, replaced, supplemented, or otherwise modified from time to time, the “ Loan Agreement ”), between Borrower and Lender, which Loan is secured by, inter alia , that certain Amended and Restated Deed of Trust, Security Agreement, Assignment of Leases and Rents, Financing Statement and Fixture Filing, dated as of the date hereof, by and among Borrower, as trustor, First American Title Insurance Company, a California corporation, as trustee, and Lender, as beneficiary (as amended, restated, replaced, supplemented, or otherwise modified from time to time, collectively, the “ Security Instrument ”), and further evidenced, secured or governed by other instruments and documents executed in connection with the Loan (together with the Note, the Loan Agreement and the Security Instrument, collectively, the “ Loan Documents ”).
WHEREAS, Lender is not willing to enter into the documents that modify the Loan on the date hereof unless Guarantor unconditionally guarantees payment and performance to Lender of the Guaranteed Obligations (as herein defined).
WHEREAS, Guarantor is the owner of a direct or indirect interest in Borrower and will directly benefit from Lender’s modification of the Loan.
NOW, THEREFORE, as an inducement to Lender to modify the Loan to Borrower, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
NATURE AND SCOPE OF GUARANTY
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1.2. Guaranteed Obligations . As used herein, the term “ Guaranteed Obligations ” means all the obligations and liabilities of Borrower under Sections 9.4(b) and (c) of the Loan Agreement. The maximum aggregate liability with respect to the Guaranteed Obligations (other than the obligations and liabilities of Borrower under Section 9.4(c)(ii)(A) of the Loan Agreement) and other than Enforcement Costs (as defined below) shall not exceed thirty million dollars ($30,000,000); provided that the foregoing restrictions on liability shall not apply to any Guaranteed Obligations that arise from (i) events, acts, or circumstances that are actually committed by, or voluntarily or willfully brought about by Guarantor, to the full extent of such Guaranteed Obligations; or (ii) events, acts, or circumstances (regardless of the cause of same) that provide actual benefit (in cash, cash equivalent, or other quantifiable amount) to Guarantor, to the full extent of the actual benefit received by Guarantor. Notwithstanding the foregoing, during any period in which Borrower obtains and maintains environmental insurance for the Property which has a term through November 11, 2011 and a two (2) year tail coverage in amounts not less than $50,000,000 for third party liability and $25,000,000 for first party cleanup coverage from a carrier with not less than an “A” rating and otherwise acceptable to Lender in its reasonable discretion, including, without limitation, naming Lender as an additional insured thereunder, and such environmental insurance policy is in full force and effect, then during such period Guarantor shall have no obligations or liability to Lender hereunder with respect to Borrower’s failure to comply with Section 9.4(b)(iii) of the Loan Agreement. For the purposes hereof, Lender hereby acknowledges and confirms that: (i) that certain Primary Environmental Site Liability Policy, Policy # 37310075, issued by Chubb Custom Insurance Company, and (ii) that certain Excess Environmental Liability Policy, Policy # PLS 2104680, issued by American International Specialty (collectively, the “ Environmental Policies ”) were delivered to Lender and are in effect on the date hereof and are acceptable to Lender so long as each of the Environmental Policies remains in full force and effect. Notwithstanding the foregoing, it is hereby expressly agreed that the obtaining and maintaining of any such environmental insurance for the Property shall not in any way reduce, amend, modify or otherwise affect any of the obligations and liabilities of Borrower under any of the Loan Documents.
1.3. Nature of Guaranty . This Guaranty is an irrevocable, absolute, continuing guaranty of payment and not a guaranty of collection. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced shall not release or discharge the obligation of Guarantor to Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Lender and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or part of the Note.
1.4. Guaranteed Obligations Not Reduced by Offset . The Guaranteed Obligations and the liabilities and obligations of Guarantor to Lender hereunder, shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower (other than the defense of payment of such Guaranteed Obligations by Borrower), or any other
party, against Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.
1.5. Payment By Guarantor . If all or any part of the Guaranteed Obligations shall not be punctually paid when due, Guarantor shall, immediately upon demand by Lender, and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of the maturity, or any other notice whatsoever, pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Lender at Lender’s address as set forth herein. Such demand(s) may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations, and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be made, given and received in accordance with the notice provisions hereof.
1.6. No Duty To Pursue Others . It shall not be necessary for Lender (and Guarantor hereby waives any rights which Guarantor may have to require Lender), in order to enforce the obligations of Guarantor hereunder, first to (a) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other person, (b) enforce Lender’s rights against any collateral which shall ever have been given to secure the Loan, (c) enforce Lender’s rights against any other guarantors of the Guaranteed Obligations, (d) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (e) exhaust any remedies available to Lender against any collateral which shall ever have been given to secure the Loan, or (f) resort to any other means of obtaining payment of the Guaranteed Obligations.
1.7. Waivers . Guarantor agrees to the provisions of this Guaranty, and hereby waives notice of (a) any loans or advances made by Lender to Borrower, (b) acceptance of this Guaranty, (c) any amendment or extension of the Note, the Loan Agreement or of any other Loan Documents, (d) the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Property, (e) the occurrence of any breach by Borrower or an Event of Default, (f) Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (g) to the extent permitted by applicable, nonwaivable law, sale or foreclosure (or posting or advertising for sale or foreclosure) of any collateral for the Guaranteed Obligations, (h) protest, proof of non-payment or default by Borrower, and (i) generally, to the extent permitted by applicable, nonwaivable law, all demands and notices of every kind in connection with this Guaranty, the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations. Notwithstanding the foregoing to the contrary, no waiver of notice is hereby given by Guarantor with respect to any amendment, waiver, modification or other alteration of Sections 9.4(b) and (c) of the Loan Agreement.
1.8. Payment of Expenses . In the event that Guarantor should breach or fail to timely perform any provisions of this Guaranty, Guarantor shall, immediately upon demand by Lender, pay Lender all costs and expenses (including court costs and reasonable attorneys’ fees) incurred by Lender in the enforcement hereof or the preservation of Lender’s rights hereunder (the foregoing, collectively “ Enforcement Costs ”).
1.9. Effect of Bankruptcy . In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Lender shall be without effect, and this Guaranty shall remain in full force and effect. It is the intention of Borrower and Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s performance of such obligations and then only to the extent of such performance.
1.10. Waiver of Subrogation, Reimbursement and Contribution . Notwithstanding anything to the contrary contained in this Guaranty, until such time as the Debt has been paid in full, Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating Guarantor to the rights of Lender), to assert any claim against or seek contribution, indemnification or any other form of reimbursement from Borrower or any other party liable for payment of any or all of the Guaranteed Obligations for any payment made by Guarantor under or in connection with this Guaranty.
1.11. Borrower . The term “Borrower” as used herein shall include any Person constituting Borrower and any new or successor corporation, association, partnership (general or limited), limited liability company, joint venture, trust or other individual or organization formed as a result of any merger, reorganization, sale, transfer, devise, gift or bequest of any Person constituting Borrower or any interest in any Person constituting Borrower.
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following, and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any common law, equitable, statutory or other rights (including without limitation rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:
2.1. Modifications . Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Loan Agreement, the other Loan Documents, or any other document, instrument, contract or understanding between Borrower and Lender pertaining to the Guaranteed Obligations or any failure of Lender to notify Guarantor of any such action. Notwithstanding the foregoing to the contrary, no consent or waiver is hereby given by Guarantor with respect to any amendment, waiver, modification or other alteration of Sections 9.4(b) and (c) of the Loan Agreement.
2.2. Adjustment . Any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower, Guarantor or any other party liable for payment of any or all of the Guaranteed Obligations.
2.3. Condition of Borrower or Guarantor . The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, or Guarantor or any other party at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor or any changes in the direct or indirect shareholders, partners or members of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.
2.4. Invalidity of Guaranteed Obligations . The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including without limitation the fact that (a) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (b) the act of creating the Guaranteed Obligations or any part thereof is ultra vires , (c) the officers or representatives executing the Note, the Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (d) the Guaranteed Obligations violate applicable usury laws, (e) the Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, (f) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (g) the Note, the Loan Agreement or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereunder regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.
2.5. Release of Obligors . Any full or partial release of the liability of Borrower on the Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other party, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons will be liable to pay or perform the Guaranteed Obligations, or that Lender will look to other Persons to pay or perform the Guaranteed Obligations.
2.6. Other Collateral . The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.
2.7. Release of Collateral . Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations.
2.8. Care and Diligence . The failure of Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of any collateral, property or security, including but not limited to any neglect, delay, omission, failure or refusal of Lender (except to extent of Lender’s gross negligence or willful misconduct) (a) to take or prosecute any action for the collection of any of the Guaranteed Obligations or (b) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any security therefor, or (c) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.
2.9. Unenforceability . The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Guaranteed Obligations.
2.10. Offset . Any existing or future right of offset, claim or defense of Borrower against Lender, or any other Person, or against payment of the Guaranteed Obligations, whether such right of offset, claim or defense (other than the defense of payment in full) arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.
2.11. Merger . The reorganization, merger or consolidation of Borrower into or with any other Person.
2.12. Preference . Any payment by Borrower to Lender is held to constitute a preference under bankruptcy laws, or for any reason Lender is required to refund such payment or pay such amount to Borrower or someone else.
2.13. Other Actions Taken or Omitted . Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.
REPRESENTATIONS AND WARRANTIES