Business Loans and Personal Guaranties

The most common complaint I hear from business clients is that they cannot find financing. Needless to say, most are elated when they receive loan approval. As a practical business matter, that approval comes with a pile of paper including:

  1. A resolution of the governing board for the business approving the loan and authorizing signatories – Keep a copy of this in your minute or record book, it is an official corporate record;
  2. A Loan Agreement;
  3. A Promissory Note;
  4. A Security Agreement; and
  5. Personal Guaranties of the Owners or Shareholders.

I can write a blog and book on each of these documents, but today I want to focus on Personal Guaranties.

Let’s start by agreeing that Personal Guaranties are a necessary  part of the lending arrangement for small business today. As a business lawyer, I recognize that banks will not make loans without assurances and a way to ensure repayment. Clients generally assume that the Personal Guaranty is required and is limited to the amount of their investment in the business. Personal Guaranties ARE NOT limited automatically. Usually, they are joint and several.

A joint and several guaranty means that each party signing the guaranty is personally responsible for the whole amount due. So if the loan is for $1,000,000 and there are three owners, each owner can be sued for the full amount of $1,000,000, but the lender can only collect the amount once from any one or combination of the the three.

In order to be liable only for an owner’s proportionate share, the guaranty must be a limited guaranty, limiting recourse to a maximum amount or percentage.

To change the loan documents, an owner will need a productive relationship with the businesses bank and banker, and will need to specifically ask for limited recourse. Your business attorney can review the documents and help you negotiate a better deal. We recommend that small businesses find experienced business lawyers with the skills and knowledge to assist you with loan documents.

Please contact us if you have any questions.—-Rochelle Friedman Walk, Esq.

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About Rochelle Friedman Walk, Esq.

Rochelle Friedman Walk, Esq. is an experienced, thoughtful and strategic attorney, business executive and neutral mediator. She has been court-appointed as a receiver and mediator, and is a member of the FINRA arbitration panel. She is known for her negotiating skills and the ability to bring parties together in win-win, creative solutions. She offers a practical and business-oriented approach to the practice of law. Her background in business enables her to relate well to clients and to quickly define the work and potential solutions. In her more than twenty-five years of business and legal experience, she has served as the chief restructuring officer, chief administrative officer, chief legal officer and Business Unit Manager to several national and multi-national business organizations. As an attorney, she has represented clients in a wide range of legal transactions and disputes including complex commercial, insurance coverage, real estate, construction, financial restructuring and employment matters. She has served as an ombudsman in employment, elder care, NAACP, creditor and shareholder matters and has worked with a number of different international unions to resolve concerns. Ms. Walk is a Martindale-Hubbell Preeminient (AV)-rated lawyer, has been named by Tampa Bay Magazine as one of the Top Lawyers in Tampa Bay (July 2010) and is included in Martindale-Hubbell's inaugural and subsequent editions of its Bar Register of Preeminient Women Lawyers (2011, 2012). A graduate of Case Western Reserve University School of Law and Colgate University, she is a Florida Supreme Court Circuit Civil and Appellate certified mediator, licensed to practice law in the States of Florida and Ohio, and is a member of the America Bar Association, Section for Dispute Resolution, the Hillsborough County Bar Association and the Florida Academy of Professional Mediators. She has been recognized by the YWCA as a Woman of Professional Excellence and the Tampa Jewish Community Federation as a Woman of Distinction.She volunteers for SCORE as a presenter on various business topics and serves on the Boards of a number of not-for-profit community agencies in the Tampa Bay area, including a community foundation and assisted living facility. Previously, she served on the Board of a Crisis Nursery.

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