If there is one universal complaint we hear from Performance Bond applicants it is their reluctance to give personal indemnity. And there is even more resistance from their spouses! Keep in mind, people operate through corporations to protect their assets. So why defeat the purpose by signing personally? Why do bonding companies demand this and can it be avoided?
The giving a personal indemnity makes the company owners and spouses personally liable in the event of a bond claim or loss. It means assets such as their home and investments are literally at risk if there is a problem on a bonded contract. People typically view bonds the same as insurance where there is no such personal obligation. Therefore, there’s a natural resistance to this requirement.
Let’s stop for a moment and understand why such indemnity is expected.
A bonding relationship is much like borrowing money from a bank. Unlike insurance, neither the bank nor the bonding company ever expects to have a loss. When you apply for a bank line the lender may ask for personal signatures of the company owners (co-signers) to support the credit application. This means that if the company fails to pay the debt, the bank seeks recovery from the co-signers. The bank wants the owners to stand behind the company obligation.
The same approach is used in bonding. Bonding companies want the company owners to share in the risk and understand the importance of preventing bond losses. Personal indemnity accomplishes this.
Why must spouses sign?
- Company stock is normally a jointly owned marital asset.
- The success of the bonded contracts benefits both parties even if they are not both active in the company.
- Bonding companies want to prevent assets from being moved around to avoid the indemnity obligations.
For these reasons “full personal indemnity” is generally required by all bonding companies. However there are some exceptions. Ways to avoid indemnity:
- Long surety relationship It is possible that after many years in a profitable relationship, the contractor may convince the surety to drop the indemnity requirement.
- Company size Firms with a multi-million dollar net worth may be viewed as so credit worthy, the additional support (of personal indemnity) is unnecessary.
- Public Companies Go public. Publicly owned entities normally only give company indemnity. Obtaining personal indemnity is impractical and normally waived.
- ESOPS Form an ESOP. Employee owned companies (like public companies) tend to have a large number of stockholders, each with a small percent of ownership. It is unrealistic to expect these owners to be personally liable.
- Pre-Nup. The existence of a Prenuptial Agreement or Non-transfer of Assets Agreement between married parties/stockholders could justify waiving the spouse. However, the stockholder would still give indemnity.
- Sell Your Stock Company owners can sell their stock to the next generation of owners, key employees perhaps. If you (and your spouse) are no longer stockholders, your personal indemnity will not be expected. An exception could be a case where you remain in a key position and/or you personally are the primary financial strength.
- Collateral Place assets with the bonding company such as cash or an irrevocable letter of credit to secure their position. If high enough, it could overcome the absence of personal indemnity.
These examples are real life solutions. However for many contractors they may not be within reach. The simple truth is that in most cases personal indemnity cannot be avoided.
Company owners/spouses rarely like to give it, but virtually all must do so if they wish to have bonded contracts for their privately owned companies.
FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision, Bid and Performance Bonds since 1979 – we’re good at it! Call us with your next one.
Steve Golia, Marketing Mgr.: 856-304-7348
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