| Issue |
Narrative |
Comment
|
| Consideration |
Is there consideration? |
|
| Permanence |
Is it unconditional, irrevocable and continuing? |
|
| Unaffected |
Is it unaffected by:
|
|
|
|
|
- amendment or discharge of obligor’s obligations
|
|
- beneficiary’s waiver or forbearance to obligor
|
|
- other customary grounds for discharge of guarantees
|
|
| Punctual performance |
Does it guarantee the obligor’s “punctual performance”? |
|
| Without prejudice |
Is it without prejudice to beneficiary’s rights against obligor? |
|
| Independence |
Is it independent of any other credit support arrangement between beneficiary and obligor? |
|
| Indemnity |
Is there an indemnity against beneficiary’s costs of enforcement of guaranteed obligations? |
|
| Is there an indemnity wrt the value of obligations which are void/unenforceable against the obligor? |
|
| Currency and payment |
Must payment must be in immediately available funds in the currency of the underlying obligations? |
|
| No set-off or counterclaim |
Is set-off or counterclaim against moneys beneficiary owes the guarantor excluded? |
|
| Interest |
Must guarantor pay interest from the date of demand until payment in full? |
|
| Suspense account |
May beneficiary place amounts beneficiary into a suspense account pending satisfaction in full? |
|
| Demand process |
May beneficiary demand without first taking steps vs the obligor? |
|
| No discharge if prejudice |
May beneficiary decline to discharge the guarantee if it might prejudice its claim under insolvency laws? |
|
| Reinstatement |
If beneficiary discharges, is guarantor’s liability reinstated should obligor’s payments be set aside? |
|
| Guarantor’s rights versus obligor |
Must Guarantor obtain beneficiary’s consent before taking action against obligor until guaranteed obligations are fully paid? |
|
| Must guarantor hold sums it receives from obligor pending satisfaction to beneficiary’s order |
|
| Tax gross-up |
Must guarantor gross up if subject to withholding on guarantee payments? |
|