Terms and Indemnity for Guarantee
By requesting Lloyds Bank plc (“Lloyds Bank”) to issue, or to arrange for its correspondent to issue the guarantee, indemnity, bond or other undertaking (“the Undertaking”) detailed overleaf, you irrevocably jointly and severally hereby agree:
1 to indemnify on demand Lloyds Bank against all demands, claims, liabilities, costs and expenses which may be brought against it, or which it may suffer or incur, arising under or in connection with the Undertaking and (provided that any such increase, decrease, amendment or extension was made in accordance with the terms of the Undertaking or at your request or otherwise with your consent) any increase or decrease in the amount of the Undertaking and/or any amendment or extension to the Undertaking.
2 that Lloyds Bank and/or Lloyds Bank’s correspondent may pay any demand(s) under or in connection with the Undertaking:
2.1 immediately upon first demand being made; and
2.2 without your agreement and without contacting you, and notwithstanding that you may dispute the validity of such demand; and
2.3 without requiring any proof that the amount(s) demanded is/are properly due.
3 to pay on demand any sums payable, or appearing to Lloyds Bank to be payable, by you under this indemnity and that Lloyds Bank may debit any account(s) in your name(s) with any such sums.
4 that, in the case that the amount to be debited to your account is denominated in a currency different from the currency of your account Lloyds Bank may, unless you have agreed other settlement arrangements with it, pass any such debits in the currency of your account at Lloyds Bank’s rate of exchange ruling when it passes such debit or, if passed after payment, at the rate of Lloyds Bank ruling when it receives advice of payment.
5 that, in the event that any amount payable by you hereunder remains unpaid and you do not have an account with Lloyds Bank that it can debit in the same currency as such unpaid amount, you shall pay interest from time to time on such unpaid amount at a rate as may be agreed between you and Lloyds Bank, but in the absence of such agreement at a rate per annum equal to the aggregate of 3% per annum and the cost to Lloyds Bank (as shall be determined by Lloyds Bank at its absolute discretion) of funding such unpaid amount from time to time, and (without prejudice to Lloyds Bank’s right to require payment of such interest) all such interest shall be compounded (both before and after any demand or judgement) at such times as Lloyds Bank shall from time to time fix (but no more than monthly).
6 that, in the case of an Undertaking issued by Lloyds Bank, Lloyds Bank may pay any demand(s) unless expressly and in its view unambiguously provided otherwise:
6.1 without verifying the authenticity or authority of any signature(s) appearing on such demand and/or any accompanying document(s); and
6.2 whether received by facsimile or telex transmission or email or any other means; and
6.3 without ascertaining or enquiring as to whether or not any conditions of the Undertaking and/or of the underlying contract or agreement referred to in the Undertaking which are not required specifically to be reflected or referred to in the content of the demand or any accompanying document(s) have been met; and
6.4 without ascertaining or enquiring as to whether or not any pre-condition(s) of liability under the Undertaking has/have been met so that such liability shall be treated as having commenced on the date of issue of the Undertaking; and
6.5 without considering whether Lloyds Bank’s liability has been reduced or terminated unless it has received evidence satisfactory to it or is otherwise satisfied that its liability has been reduced or terminated; and
6.6 without ascertaining or enquiring if the amount demanded is actually due.
7 that in the case of an Undertaking issued by Lloyds Bank’s correspondent:
7.1 Lloyds Bank’s counter-guarantee (however described) in favour of the correspondent bank shall be in the terms required by that correspondent bank and shall be subject to the appropriate law, jurisdiction, usage and custom for that correspondent bank.
7.2 Lloyds Bank’s liability to its correspondent in respect of such Undertaking shall be determined by the terms of its counter-guarantee in its correspondent’s favour and that your liability under this indemnity shall continue until such time as and to the extent that Lloyds Bank has received an authenticated release of liability from its correspondent; and
7.3 unless otherwise provided by Lloyds Bank’s counter-guarantee its liability shall be treated as having commenced on the date of issue of its counter-guarantee; and
7.4 Lloyds Bank may pay immediately on first demand any amount(s) demanded by its correspondent under Lloyds Bank’s counter-guarantee.
8 that any payment Lloyds Bank and/or its correspondent make under or in connection with the Undertaking shall be binding upon you.
9 that you shall remain liable under this indemnity notwithstanding that the Undertaking may be or become wholly or partly invalid, illegal or unenforceable.
10 that, if two or more parties (other than Lloyds Bank) sign this indemnity, the obligations hereunder are joint and several.
11 that Lloyds Bank has no liability or responsibility to you if the instructions transmitted by Lloyds Bank to its correspondent are not carried out, even if Lloyds Bank has taken the initiative in the choice of correspondent.
12 that the Undertaking is intended to be and will be enforceable by the beneficiary and any other parties to it according to its terms and conditions. Otherwise, unless expressly provided to the contrary in Clause 13, no person other than you and Lloyds Bank shall have rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of this indemnity.
13 that Lloyds Bank and/or any member of the Lloyds Banking Group may be subject to sanctions and/or embargoes imposed by the international community including the UK, EU, UN and the USA and that Lloyds Bank may not accept instructions from or may refuse to make any payment to the beneficiary and/or Lloyds Bank’s correspondent (if any) or take any action under or in connection with the Undertaking if it would result, or is in the reasonable opinion of Lloyds Bank likely to result, in a breach by it or any member of the Lloyds Banking Group or any of their respective employees of any sanction or embargo whether or not imposed in the UK, that Lloyds Bank will not be liable for any loss, damage, cost or expense arising out of or in connection with any failure to pay or to act as a result of any such sanction or embargo and, further, that Lloyds Bank and/or its agents shall be permitted to disclose to the relevant authorities such information related to the Undertaking as may be required.
14 If you are a customer of:
• Lloyds Bank International Limited
• Lloyds Bank Private Banking Limited
• Bank of Scotland plc
14.1 you acknowledge and agree that:
14.1.1 each of the above banks has appointed Lloyds Bank plc as its agent for the purpose of international banking transactions carried out at the request of its customers. Accordingly, if you are a customer of one of these banks, although Lloyds Bank plc will effect the transaction contemplated in these terms and conditions in its own name, you acknowledge and agree that it will do so as agent for your bank and that bank will indemnify Lloyds Bank plc in respect of the transaction.
14.1.2. these terms and conditions are therefore to be read as being between you and your bank and that all references in these terms and conditions to the “Bank”, “us”, “we”, “Lloyds Bank” and “Lloyds Bank plc” shall be construed accordingly to give effect to this clause.
14.1.3. Lloyds Bank plc may require the disclosure by Lloyds Bank International Limited, Lloyds Bank Private Banking Limited or Bank of Scotland plc (as the case may be) of information relating to its accounts (including information stored on its database), and that therefore Lloyds Bank International Limited, Lloyds Bank Private Banking Limited or Bank of Scotland plc (as applicable) is authorised to disclose all such information as may be requested by Lloyds Bank plc for the purpose of carrying out international banking transactions.
14.2 in any case where you have given Lloyds Bank International Limited, Lloyds Bank Private Banking Limited or Bank of Scotland plc information about individuals you represent and confirm that those individuals have appointed you to act for them and consent to the processing of personal data for the purpose of carrying out international transactions and to the transfer of that information abroad and to receive any data protection notices on their behalf.
14.3 the account details to be entered into the application for the transaction contemplated in these terms and conditions should be those of your appropriate account with your bank which will be debited or credited with any sums due in respect of the transaction.
15 that Lloyds Bank shall not be liable for any loss of profits, business, data or information or for any incidental, indirect, special or consequential damages whether arising from negligence, breach of contract or otherwise, even if informed of the possibility of those losses or damages. Except as otherwise specified herein Lloyds Bank shall not be liable for any direct losses arising out of or relating to any of its actions or omissions to act in respect of the transaction contemplated by these terms and conditions, except to the extent that any such losses are caused by Lloyds Bank’s wilful misconduct, fraud or gross negligence.
16 that if the Undertaking or Lloyds Bank’s counter-guarantee (however described), if any, is stated to be subject to the Uniform Rules for Demand Guarantees published by the International Chamber of Commerce (‘the URDG’) the terms of this indemnity shall take precedence over any conflicting terms in the URDG.
17 that this indemnity and any disputes or claims arising out of or in connection with its subject matter (including non-contractual obligations) shall be governed by, construed and take effect in all respects in accordance with the laws of England. The parties irrevocably agree to submit to the exclusive jurisdiction of the English courts to settle any dispute or claim that arises out of or in connection with the indemnity (and any non-contractual obligations). You acknowledge that the indemnity, the Undertaking or Lloyds Bank’s counter-guarantee in respect of an Undertaking issued by the correspondent in certain countries is subject to specific local legislation and regulations and you agree to comply with any such legislative requirements and regulations as though they were set out herein.