Last updated 04/22/2022
IMPORTANT – PLEASE READ THE FOLLOWING NOTE BEFORE SIGNING THIS PERSONAL GUARANTY:
This is a personal guaranty. By agreeing to the provisions of this Personal Guaranty, you may become liable, instead of, or in addition to, the Business.
We strongly recommend that you seek independent legal advice before agreeing to be bound by this Personal Guaranty and also read the Capital on Tap Business Credit Card Agreement which this Personal Guaranty relates.
Personal Guaranty in favor of:
WebBank and its direct and indirect successors and assigns (collectively, "Bank” “we”, “us” and “our”):
Who is a director/shareholder/
(the “Guarantor” “you” and “your”)
[Name of Signatory]
[Name of Business] (the Business)
1. Bank has entered into the Capital on Tap Business Credit Card Agreement, with the Business, dated [mm/dd/yyyy] (including any documents or other agreements in connection therewith, as each may be amended from time to time, collectively, the Agreement) for Bank to create a Capital on Tap Business Credit Card Account (the Account) for the Business and to issue cards or other devices that are used by cardholders to access the Account.
2. Guaranteed Obligations means all duties, promises, obligations and liabilities of the Business to Bank howsoever evidenced, whether direct or indirect, absolute or contingent, voluntary or involuntary, liquidated or unliquidated, determined or undetermined, due or to become due, or now existing or hereafter incurred, which arise under the Agreement, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all reasonable attorneys’ fees the Business is required to pay pursuant to the terms of the Agreement and the costs of enforcement of this Personal Guaranty) or otherwise.
3. In consideration of Bank agreeing to enter into the Agreement and to permit usage of the Account pursuant to the terms of the Agreement, the Guarantor hereby irrevocably, personally and unconditionally:
a) guarantees to Bank the prompt and complete payment and performance by the Business when due of all the Guaranteed Obligations;
b) guarantees that he or she shall immediately on demand pay the amount due or perform the obligation of the Business as if the Guarantor was the principal obligor; and
c) indemnifies the Bank immediately on demand against any cost, loss or liability suffered by the Bank if any Guaranteed Obligation is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which the Bank would otherwise have been entitled to recover.
4. In the event that the Business does not make any payment in full, or perform in full, as required by the Agreement, the Bank shall have the immediate right to request that the Guarantor makes any such payment and/or makes good any shortfall where the Business has paid less than required or performs where the Business has not performed in full.
5. The Guarantor agrees to be bound by the terms and conditions of the Agreement, including (but not limited to) such provisions related to payment on demand by the Business and the Arbitration Clause.
6. The Guarantor agrees that Bank is not under any obligation to take any debt collection or legal action against the Business before requiring payment by the Guarantor.
7. This Personal Guaranty will not be discharged or otherwise affected by any invalidity or unenforceability of, or irregularity or defect in, any security for the Guaranteed Obligations (whether by way of mortgage, guaranty, or otherwise) which the Bank may hold now, or at any time in the future.
8. Guarantor agrees, as a separate obligation, to indemnify the Bank against all loss occasioned by, or arising from, any legal limitation, disability or lack of capacity or authority of, or affecting, the Business or any person acting or purporting to act on behalf of the Business regarding the Guaranteed Obligations.
9. This is a guaranty of payment and performance and not a guaranty of collection. This Personal Guaranty is a continuing guaranty and covers the ultimate balance due at any time from the Business to Bank under the Agreement until all amounts owed to Bank under the Agreement are satisfied in full, regardless of any intermediate payment or settlement of the account. Guarantor agrees to remain liable in respect of this Personal Guaranty (including following Guarantor’s death or mental incapacity) until the Bank releases Guarantor in writing.
10. The obligations of Guarantor hereunder are independent of the obligations of the Business and of any other person who may become liable with respect to the Guaranteed Obligations (the Other Obligor). Guarantor is jointly and severally liable with the Business and with any Other Obligor for the full and timely payment and performance of all of the Guaranteed Obligations. Guarantor expressly agrees that a separate action or actions may be brought and prosecuted against Guarantor (or any Other Obligor), whether or not any action is brought against the Business, or any Other Obligor, and whether or not the Business, any Other Obligor, or any other persons are joined in any action against Guarantor. Guarantor further agrees that Bank shall have no obligation to proceed against any security for the Guaranteed Obligations prior to enforcing this Personal Guaranty against Guarantor, and that Bank may pursue or omit to pursue any and all rights and remedies Bank has against any person or with respect to any security in any order or simultaneously or in any other manner. All rights of the Bank and all obligations of Guarantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity, regularity, or enforceability of the Agreement, (b) any circumstance that might constitute a legal or equitable discharge of Guarantor, and (c) any other circumstances which might otherwise constitute a defense available to, or a discharge of the Business in respect of, the Guaranteed Obligations, until full payment or performance thereof.
11. The Guarantor represents and warrants that:
a) Guarantor has the power and authority and the legal right to execute, deliver and perform this Personal Guaranty and has taken all necessary action to authorize the execution, delivery and performance of this Personal Guaranty;
b) the obligations in this Personal Guaranty are binding on the Guarantor;
c) Guarantor has reviewed and approved the Agreement;
d) Guarantor has carefully read this Personal Guaranty and has, or had a reasonable opportunity to, consult with Guarantor’s attorney;
e) Guarantor understands the contents of this Personal Guaranty and signs this Personal Guaranty as its free act and deed.
f) the Guarantor has not taken any action, nor have any other procedures or steps been taken, or, to the best of the Guarantor's knowledge and belief, threatened against Guarantor, for bankruptcy or for the appointment of a bankruptcy trustee or similar officer of any or all of Guarantor’s assets; and
g) no litigation or other proceedings are taking place or, to Guarantor’s knowledge, are threatened against Guarantor, which have been, or in Guarantor’s reasonable opinion is likely to be, adversely determined and, if so, would be expected to have a material adverse effect on Guarantor’s ability to perform the obligations under this Personal Guaranty.
12. Guarantor authorizes Bank (whether or not after termination of this Personal Guaranty), without notice or demand (except as shall be required by applicable statute which cannot be waived), and without affecting or impairing its liability hereunder, from time to time: (a) to renew, compromise, extend, increase, accelerate, or otherwise change the time for payment of, or otherwise change the terms of, Guaranteed Obligations or any part thereof, including increase or decrease of the rate of interest thereon; (b) to exercise or refrain from exercising any rights against Business or others, or otherwise retrain from acting; (c) to consent to or waive any breach of, or any act, omission or default under, the Agreement.
13. Guarantor hereby waives all notices he or she may be entitled to by law, including, but not limited to: (a) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of this Personal Guaranty, and diligence in collection; (b) notice of the existence, creation, or incurring of any new or additional Guaranteed Obligations under the Agreement; (c) any right to require Bank to proceed against, give notice to, or make demand upon the Business; (d) any right to require Bank to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (e) any right to require Bank to pursue any remedy of Bank; (f) any right to direct the application of any security held by Bank; (g) any defense arising out of any disability or other defense of the Business, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of the Business, or of any remedy for the enforcement of such liability; (h) any statute of limitations affecting the liability of Guarantor hereunder; and (i) any other defenses available to a surety under applicable law.
14. If the Business avoids any payments or performance due under the Agreement as a result of insolvency or dissolution, Guarantor’s obligation shall continue as if the payment or performance had not been avoided and Bank shall be entitled to recover the amount from Guarantor.
15. If the Bank reasonably requires, it may decline to release this Personal Guaranty unless it is satisfied that any payment or performance of the Guaranteed Obligations will not be avoided whether as a preference or otherwise.
16. Any release or discharge of this Personal Guaranty will be conditional upon no security or payment or performance by the Business or Guarantor to the Bank being avoided (whether under any statutory provision relating to insolvency or otherwise).
17. If any security or payment is avoided, the Bank is entitled to recover from Guarantor the value or amount of that security or payment as if there had been no release or discharge of this Personal Guaranty.
18. Any demand, notice or proceeding under this Personal Guaranty may be served:
a) by letter, sent by first class post to, or left at, Guarantor’s last known address or registered office and if sent by post, it will be deemed to have been served at the time it would, in the ordinary course of post, be delivered; or
b) by email to Guarantor’s last known email address and it will be deemed to have been served at the time of transmission.
19. This Personal Guaranty may not be assigned by the Guarantor to any third party without the prior written approval of the Bank.
20. This Personal Guaranty shall inure to the benefit of Bank and Bank’s successors and assigns. Guarantor acknowledges and agrees that this Personal Guaranty may be assigned by Bank to any third party, without notice to Guarantor, and shall be fully enforceable by such assignee.
21. This Personal Guaranty and any dispute arising out of or in connection with it shall be governed by and construed in accordance with Utah law, without regard to internal principles of conflicts of law.
22. The Federal and state courts of Utah shall have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Personal Guaranty to the extent such dispute is not adjudicated according to the Arbitration Clause of the Agreement.
23. If any provision hereof shall be invalid or unenforceable, then such provision shall be limited to the extent required to make it valid and enforceable, and, if required, severed from this Personal Guaranty, and the remainder of the document shall remain in full force and effect.
24. Guarantor authorizes Bank to investigate his or her creditworthiness in connection with any transaction, or extension of credit, and on an ongoing basis, for the purposes of opening and reviewing the Account, taking collection action on the Account, or for any other legitimate purpose associated with the Account, by obtaining credit reports and making other inquiries from time to time. Upon request, we will tell you the name and address of any credit reporting agency that furnished a report on you. We may report your liability, payment history, and the status of your account to credit reporting agencies and to others who may lawfully receive such information. We will tell a credit reporting agency if you fail to comply with any term of the Agreement. This may have a negative impact on your credit report. If you believe information we have given to a credit reporting agency is incorrect, write to us at: email@example.com. When you write to us, tell us the specific information you believe is incorrect.
25. Without waiving any of Bank’s rights, it may, at its option, release the Business without notifying the Guarantor and without releasing the Guarantor from the Guarantor’s obligation to pay all amounts owing under this Agreement in full, or to otherwise perform the terms and conditions of this Agreement.
26. If Bank needs to contact you to service your Account or to collect amounts you owe to us, you authorize us, as well as servicers, agents, independent contractors, contractors, debt collectors or collection agencies, and to anyone to whom we may sell your Account, to communicate with you in any way, such as calling, texting, or email via: (1) Your cell, landline, text number or any number you provide, use to contact us, or any number which you may utilize, or to any other device or service for which you may be charged for the call, including, but not limited to, voice over internet protocol; (2) Any email address you provide to us or any other person or company that provides any services in connection with the Account; (3) Automated telephone dialing systems; (4) Pre-recorded or artificial voice messages and any other form of communication. You also agree that these communications aren’t unsolicited for purposes of any state or federal law and you understand that communications may result in additional mobile, text message, data charges or other charges.
27. We may monitor and record any calls between you and us.
28. We send any notices by email to the address you gave us. We consider an electronic notice sent as soon as we email it, unless we receive notification that the email was undeliverable. Guarantor shall notify the Bank if the Guarantor (i) is no longer associated with the Business or no longer willing to be jointly and severally liable, or (ii) is the subject of bankruptcy or insolvency proceedings. All such notices and related correspondence should be sent to the following address: firstname.lastname@example.org or Capital on Tap Business Credit Card, The Yard, 85 Delancey St, New York, NY 10002.
This document is a personal guaranty. By signing this personal guaranty, I agree to be legally bound by its terms.
Signature of Guarantor ……………………………………..