Under the first prong of KRS 371.065, a guaranty can be enforceable if it is “written on” the guaranteed instrument or instruments:
“No guaranty of an indebtedness which . . . is not written on . . . the instrument or instruments being guaranteed shall be valid or enforceable . . .”
Perhaps the clearest example of such a guaranty would be one included within the very same document (i.e., instrument) creating the principal obligation being guaranteed. But what if the guaranty is included as an exhibit to the instrument? Are these guarantees written on the instrument or instrument being guaranteed? Some cases do suggest that a guaranty that is included as an attachment or an exhibit to an instrument could satisfy the “written on” requirement. See Wheeler & Clevenger Oil Co. v. Washburn, 127 S.W.3d 609 (Ky. 2004); BP Products. N. Am. Inc. v. McGuirk Oil Co., Case No. 1:10-cv-00089-JHM, 2011 U.S. Dist. LEXIS 58897 (W.D. Ky. June 1, 2011).
In Duckett v. Kubota Tractor Corp., Case No. 5:01CV-228-R, 2002 U.S. Dist. LEXIS 28296 (W.D. Ky. Feb. 1, 2002), the court addressed the issue of whether guaranty agreements included in a 16-page booklet containing an agreement, exhibits to the agreement, and a blanket guaranty, were enforceable. The court suggested that the guaranty agreements there could be considered “written on” the agreement, but ultimately determined that the guaranties were nonetheless unenforceable. The agreements, the court concluded, were not the instruments being guaranteed, as the purchase orders that would be made in the future (pursuant to the agreement) were the subject instruments on which the guaranties should have been written.
Thus, unless a guaranty agreement is included within the guaranteed instrument itself, there is risk that it would not comply with the “written on” prong of the guaranty statute.