Fill and Sign the Guarantee Form and Variations

GUARANTEE FORM AND VARIATIONS TABLE OF CONTENTS GUARANTEE FORM LENDER'S ALTERNATIVE PROVISIONS FOR GUARANTEE 1 Continuing Guarantee 2 Completion Guarantee 3 Guarantee of Carrying Costs 4 Guarantee Of Borrower's Obligations Regarding Exceptions To Nonrecourse Limitation 5 Financial Covenants By Guarantor 6 Multiple Guarantors 7 New York Provisions 8 Additional Events Of Default 9 Limiting Risk Of Avoidance Of Guarantee 10 Guarantor Liable For Last Portion GUARANTOR'S ALTERNATIVE PROVISIONS FOR GUARANTEE 1 Guarantee Of Payment Only 2 Guarantee of Payment Of Portion Of Principal 3 Guarantee of Payment Of Portion Of Interest 4 Financial Statements On A "Review" Basis 5 Guarantee Of Collection 6 Guarantee Of Completion Or Carrying Costs GUARANTEE FORM GUARANTEE1 {{{29/COUNTY OF ORIGINAL LOAN CLOSING}}}, {{{30/STATE OF ORIGINAL LOAN CLOSING}}} {{{28/DATE OF ORIGINAL LOAN CLOSING}}} WHEREAS, {{{31/BORROWER}}}, {{{40/TYPE OF BORROWER}}}, having an office at {{{32/ADDRESS OF BORROWER}}} (the "Borrower "), has applied to {{{1/LENDER}}}, {{{9/TYPE OF LENDER}}}, having an office at {{{2/ADDRESS OF LENDER (FOR NOTICES)}}} (the "Lender "), for a loan, line of credit, or other financing or financial accommodation in the maximum aggregate principal sum of ${{{19/AMOUNT OF LOAN}}} (such loan, line of credit, financing and other financial accommodation being collectively called the "Loan "), which Loan will be evidenced by the note dated {{{28/DATE OF ORIGINAL LOAN CLOSING}}} in the original principal sum of ${{{19/AMOUNT OF LOAN}}} made by the Borrower to the Lender (the "Note "); WHEREAS the Lender is willing to make the Loan to the Borrower only if {{{61/GUARANTOR}}} (the "Guarantor ") executes and delivers this Guarantee and guarantees payment to the Lender of the Indebtedness (defined below), and the performance of the Borrower's obligations, as provided in this Guarantee; NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, and in order to induce the Lender to make the Loan to the Borrower, the Guarantor hereby acknowledges, agrees and confirms that all of the above recitals are true, correct and complete and hereby covenants and agrees with the Lender as follows: Guarantee of Indebtedness; Definition of "Indebtedness" and "Loan Documents" . The Guarantor 1 See Chapter 8 of the main text of this book for more details regarding guarantees and other credit enhancements. This Chapter may discuss variations of the following form which are not included in such form and which are applicable to your particular transaction. Suggested language for guarantees in mortgage securitizations has been incorporated in the following form of guarantee. See Standard & Poor's, Legal and Structured Finance Issues in Commercial Mortgage Securities at 92-94 (September 1995). guarantees, absolutely, irrevocably and unconditionally, to the Lender the payment of the Indebtedness, and the performance of all obligations of the Borrower under the Loan Documents. "Indebtedness ," as used in this Guarantee, means all principal, interest, additional interest (including, without limitation, all interest accruing from and after the commencement of any case, proceeding or action under any existing or future laws relating to bankruptcy, insolvency or similar matters with respect to the Borrower, all interest described in this parenthetical being called the "Post-Bankruptcy Interest "), and all other sums of any nature whatsoever, which may or shall become due and payable pursuant to the provisions of either the Note, this Guarantee, or any other document or instrument evidencing, securing, or guaranteeing payment of the indebtedness evidenced by the Note (in whole or in part) or any other amount payable under any other document now or hereafter executed and delivered in connection with such indebtedness or the Note (the Note, and each such other document and instrument, being collectively called the "Loan Documents "). The Guarantor's obligations under this Guarantee shall not be affected by: 1) modification of the Indebtedness or any Loan Document in any bankruptcy or insolvency proceeding, or 2) the fact that the Lender may not have an allowed claim for the Indebtedness or the other obligations under the Loan Documents, against the Borrower, as a result of any bankruptcy or insolvency proceeding or otherwise. Guarantee of Payment And Performance . This Guarantee is a guaranty of payment and performance, and not merely of collection. The Guarantor further waives any right to require that any action be brought against the Borrower or any other person or party or to require that resort be had to any security or to any balance of any deposit account or credit on the books of the Lender in favor of the Borrower or any other person or party. Any payment on account of or reacknowledgment of the Indebtedness by the Borrower, or any other party liable for the Indebtedness shall be deemed to be made on behalf of the Guarantor and shall serve to start anew the statutory period of limitations applicable to the Indebtedness. 2 Guarantor's Obligations Absolute, Unconditional And Irrevocable . The Guarantor acknowledges that this Guarantee, and the Guarantor's obligations under this Guarantee, are and shall at all times continue to be absolute, irrevocable and unconditional in all respects, irrespective of the value, 2 Note that if the Guarantee is only a partial guarantee, the Lender may wish to modify this language. For example, the modified language could provide that the statute of limitations is deemed extended by the Borrower's payment, but the Guarantor does not receive credit against its Share of the Indebtedness. genuineness, validity, regularity, or enforceability of the Obligations or the Loan Documents, and irrespective of any law, regulation or order now or hereafter in effect in any jurisdiction affecting the Obligations or the Loan Documents. The liability of the Guarantor under this Guarantee is not, and will not be, subject to any reduction, limitation, impairment, termination, defense, offset, counterclaim or recoupment whatsoever, whether: 1) by reason of any claim of any character whatsoever (including, without limitation, any claim of waiver, release, surrender, alteration, or compromise), or 2) by reason of any liability at any time to the Guarantor or otherwise, or 3) based upon any obligations or any other agreement or otherwise, and however arising, or 4) out of action or inaction or otherwise or 5) arising from default, willful misconduct, negligence or otherwise. This Guarantee (and the Guarantor's obligations under this Guarantee) shall at all times be valid and enforceable, irrespective of any other agreement or circumstance of any nature whatsoever which might otherwise constitute a defense to:1) this Guarantee, or 2) the obligations of the Guarantor under this Guarantee, or 3) the obligations of any other person or party (including, without limitation, the Borrower) relating to this Guarantee, or 4) the obligations of the Guarantor under this Guarantee or otherwise with respect to the Loan or the Indebtedness, including, without limitation, each of the following: A) the filing of a petition under Title 11 (or any successor or replacement provision) of the United States Code with regard to the Borrower or the Guarantor, or B) the commencement of an action or proceeding for the benefit of the creditors of the Borrower or the Guarantor, or C) the realization upon any collateral given, pledged or assigned as security for all or any portion of the Indebtedness, or D) the obtaining by the Lender of title to any collateral given, pledged or assigned as security for the Indebtedness by reason of foreclosure or enforcement of the Lender's lien on such collateral, the acceptance of an assignment or deed in lieu of foreclosure or sale, or otherwise, orE) any lack of validity or enforceability of the Indebtedness or the Loan Documents or any agreement or instrument relating to the Indebtedness or any of the Loan Documents. This Guarantee sets forth the entire agreement and understanding, between both the Lender and the Guarantor, with respect to the matters covered by this Guarantee. The Guarantor acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Guarantee or with respect to the obligations of the Guarantor under this Guarantee, except those specifically set forth in this Guarantee. Waiver by Guarantor Of Notices, Protest, Demand, Etc. The Guarantor hereby waives (unless and to the extent such waiver is prohibited by applicable law): 4.1 notice of acceptance of this Guarantee, and notice of the making of the Loan (and the making of any advance of proceeds of the Loan) by the Lender to the Borrower; 4.2 presentment and demand for payment of the Indebtedness or any portion thereof; 4.3 protest and notice of dishonor or default to the Guarantor or to any other person or party with respect to the Indebtedness or any portion thereof; 4.4 all other notices to which the Guarantor might otherwise be entitled; and 4.5 any demand under this Guarantee. Waiver by Guarantor of Defenses, Setoffs, Etc. The Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert or interpose any defense (other than the final and indefeasible payment in full of the Indebtedness, if and to the extent such payment has actually been made and has not been disgorged by the Lender), setoff, counterclaim, reduction, limitation, impairment, termination, recoupment or crossclaim of any nature whatsoever with respect to this Guarantee or the obligations of the Guarantor under this Guarantee or the obligations of any other person or party (including without limitation, the Borrower) relating to this Guarantee or the obligations of the Guarantor under this Guarantee or otherwise with respect to the Loan in any action or proceeding brought by the Lender to collect the Indebtedness, or any portion thereof, or to enforce the obligations of the Guarantor under this Guarantee (provided, however, that the foregoing shall not be deemed a waiver of the right of the Guarantor to assert any compulsory counterclaim maintained in a court of the United States, or of the State of {{{87/STATE WHOSE LAW GOVERNS}}} if such counterclaim is compelled under local law or rule of procedure, nor shall the foregoing be deemed a waiver of the right of the Guarantor to assert any claim which would constitute a defense, setoff, counterclaim or crossclaim of any nature whatsoever against the Lender in any separate action or proceeding). Waiver by Guarantor of Rights of Subrogation, Indemnity, Etc. Notwithstanding any payment made by the Guarantor pursuant to the provisions of this Guarantee, the Guarantor shall not seek to enforce or collect upon (and the Guarantor hereby waives) any right (either direct or indirect) which the Guarantor now has or may acquire (against the Borrower or any other person or entity) either by way of subrogation, indemnity, reimbursement, contribution, or other right of payment or recovery, for any amount paid under this Guarantee or by way of any other obligation whatsoever of the Borrower to the Guarantor, nor shall the Guarantor file, assert or receive payment on any claim, whether now existing or hereafter arising, against the Borrower in the event of the commencement of a case by or against the Borrower under Title 11 (or any successor or replacement provision) of the United States Code. In the event either a petition is filed under said Title 11 (or any successor or replacement provision) of the United States Code with regard to the Borrower, or an action or proceeding is commenced for the benefit of the creditors of the Borrower, this Guarantee shall at all times thereafter remain effective in regard to each payment or other transfer of assets to the Lender received from or on behalf of the Borrower which is or may be held voidable on the ground of preference, fraud, fraudulent transfer, or other ground, whether or not the Indebtedness has been paid in full. To the extent the Borrower or the Guarantor makes a payment or payments to the Lender, which payment or payments (or any part thereof) are later invalidated, deemed to be fraudulent or preferential, avoided, or required to be repaid to the Borrower or the Guarantor or any of their respective estate, trustee, receiver, or any other party, pursuant to any bankruptcy law, or other federal or state law, common law, or equitable basis (all such payments specified in this sentence being called the "Avoided Payments "), then, to the extent of such Avoided Payments, this Guarantee and the Obligations which have been paid, reduced or satisfied by the Avoided Payments shall be reinstated and continued in full force and effect as of the date the Avoided Payments were first made to the Lender.Indemnity by Guarantor . The Guarantor shall indemnify and hold the Lender harmless, and defend the Lender, at the Guarantor's sole cost and expense, against each loss, liability, cost and expense (including, but not limited to, reasonable attorneys' fees and disbursements of the Lender's counsel, whether in-house staff, retained firms or otherwise), and each claim, action, procedure and suit, to the extent any such loss, liability, cost, expense, claim, action, procedure and suit arises out of or in connection with: 7.1 1) this Guarantee, 2) any transaction contemplated by this Guarantee, 3) the Indebtedness (or any part thereof), or 4) any Loan Document, including, but not limited to, all costs of appraisals and reappraisals of any collateral for the Indebtedness; 7.2 any amendment to, or restructuring of, this Guarantee, the Indebtedness, or any Loan Document; 7.3 any action that may be taken by the Lender: 1) in connection with the enforcement of any Loan Document (including, without limitation, any action or proceeding to enforce this Guarantee), whether or not suit is filed in connection with such Loan Document, or 2) in connection with either the Guarantor or the Borrower (or any member, partner, joint venturer or shareholder of any such person or entity) becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding; or 7.4 the past, present or future sale, or offering for sale, of any stock, partnership or other equity interest in the Guarantor or the Borrower, including, without limitation, any liability under any applicable securities or blue sky law. All sums expended by the Lender shall be payable on demand by the Lender, and, until reimbursed by the Borrower or by the Guarantor pursuant to this Guarantee, shall bear interest at the Default Rate (as defined in the Note). 3 Financial Statements . The Guarantor hereby represents and warrants that all financial statements of the Guarantor heretofore delivered to the Lender by or on behalf of the Guarantor are true and correct in all material respects and fairly present the financial condition of the Guarantor as of 3 If the "Default Rate" is not defined in the Note, then this term will have to be defined in the Guarantee. the respective dates of such financial statements. No material adverse change has occurred in any financial condition reflected in any such financial statement since the date of such financial statement. In addition, the Guarantor covenants that so long as: 1) any portion of the Indebtedness remains outstanding and unpaid, or 2) the Lender has any obligation under any Loan Document, then the Guarantor will furnish to the Lender, unless otherwise consented to in writing by the Lender: 8.1 as soon as available, but in any event within one hundred twenty (120) days next following the end of each fiscal year of the Guarantor, annual financial statements for the Guarantor, on the Lender's standard form of such statement, for such fiscal year, prepared and audited by (and certified as being in accordance with generally accepted accounting principles by) an independent certified public accountant of recognized standing selected by the Guarantor and acceptable to the Lender, and containing a fully itemized statement of profit and loss and of surplus and a balance sheet, and otherwise in form and substance satisfactory to the Lender; 8.2 a certificate signed by the Guarantor (or if the Guarantor is not an individual, by a duly authorized representative of the Guarantor) certifying on the date of such certificate that: (i) such financial statement is true, correct and complete and (ii) no default, and no event which upon notice or lapse of time or both would constitute a default, has occurred under this Guarantee or, if such default exists, the nature thereof and the period of time it has existed (such certificate being called a "Certification "); and 8.3 within ten (10) days after request by the Lender, such further detailed financial and other information (including, but not limited to, financial statements) as may be requested by the Lender with respect to either the Guarantor, or any affiliate of, or entity controlled by the Guarantor, as of a date not earlier than that specified by the Lender in such request, together with a Certification with respect to such financial and other information. Lien, Security Interest And Setoff; Collateral Security . In addition to any right available to the Lender under applicable law or any other agreement, the Guarantor hereby gives to the Lender a continuing lien on, security interest in, and right of setoff against: 1) all moneys, securities and other property of the Guarantor and the proceeds thereof, now on deposit or now or hereafter delivered, remaining with or in transit in any manner to the Lender, its correspondents, participants or its agents from or for the Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise or coming into possession of the Lender in any way,2) each balance of any deposit account or credit of the Guarantor with, and each claim of the Guarantor against, the Lender at any time existing, in each such case as collateral security for the payment of the Indebtedness and each other obligation of the Guarantor under this Guarantee, including, without limitation, fees, contracted with or acquired by the Lender, whether joint, several, absolute, contingent, secured, matured or unmatured (the Indebtedness and all other obligations of the Guarantor under this Guarantee being collectively called the "Obligations "). The Guarantor hereby authorizes the Lender at any time or times, without prior Notice (defined below), to apply such balances, credits or claims, or any part thereof, to such Obligations in such amounts as the Lender may select, whether contingent, unmatured or otherwise and whether any collateral security therefor is deemed adequate or not. The collateral security described in this Guarantee shall be in addition to any collateral security described in any separate agreement executed by the Guarantor. The Lender, in addition to any right available to the Lender under applicable law or any other agreement, shall have the right, at the Lender's option, to set off immediately the amount of any Obligations (or such portion as may be designated by the Lender) against all monies owed by the Lender in any capacity to the Guarantor, whether or not due, and the Lender shall, at its option, be deemed to have exercised such right to set off and to have made a charge against any such money immediately upon the occurrence of any event of default set forth below, even though such charge is made or entered on the books of the Lender subsequent to those events. Event of Default . If any of the following events should occur (each such event being called an "Event of Default "): 10.1 any default under any of the Loan Documents and the continuance of such default beyond any applicable notice or grace period for such default contained in the Loan Documents; 10.2 the Guarantor violates any provision of this Guarantee; or 10.3 the Guarantor terminates or dissolves or suspends its usual business activities or conveys, sells, leases, transfers, or otherwise disposes of all or a substantial part of its property, business or assets, other than in the ordinary course of business; then, and in any such event, the Lender may declare the Obligations to be, and the Obligations shall become, immediately due and payable.Application by Lender of Moneys to Indebtedness . All moneys available to the Lender for application in payment or reduction of the Indebtedness may be applied by the Lender in such manner and in such amounts and at such time or times and in such order, priority and proportions as the Lender may see fit to the payment or reduction of such portion of the Indebtedness as the Lender may elect. Guarantee Independent of Collateral; Rights of Lender; Modification And Waiver; Additional Credit . The Guarantor hereby expressly agrees that this Guarantee is independent of, and in addition to, all collateral, if any, granted, pledged or assigned under the Loan Documents. The Guarantor hereby consents that from time to time, before or after any default by the Borrower, with or without further Notice to or assent from the Guarantor: 12.1 any security at any time held by or available to the Lender for any obligation of the Borrower, or any security at any time held by or available to the Lender for any obligation of any other person or party primarily, secondarily or otherwise liable for all or any portion of the Indebtedness or any other obligation of the Borrower or any other person or party, other than the Lender, under any of the Loan Documents (all such obligations specified above in this paragraph of either the Borrower, or any other such person or entity, being collectively called the "Aggregate Obligations "), including any guarantor of the Indebtedness or of any of such Aggregate Obligations, may be accelerated, settled, exchanged, surrendered or released and the Lender may fail to set off and may release, in whole or in part, any balance of any deposit account or credit on its books in favor of the Borrower, or of any such other person or party, and the Lender may fail to perfect its interest in any security for the Aggregate Obligations (or any part thereof); 12.2 any obligation of the Borrower, or of any such other person or party, may be changed, altered, renewed, extended, continued, accelerated, surrendered, compromised, settled, waived or released in whole or in part, or any default with respect thereto waived; 12.3 the Lender may extend further credit in any manner whatsoever to the Borrower, and generally deal with the Borrower or any security, deposit account, credit on the Lender's books or in Lender's possession or control (to the extent such security, deposit account, or credit is described above in this Section 12 ), or any other person or party, as the Lender may see fit; 12.4 the Lender may delay or fail to take any action to obtain payment of the Obligations from any party other than the Guarantor; and 12.5 the Lender may delay or fail to take any action either to enforce the Obligations or to exercise any right or remedy against the Guarantor or any other party, whether under this Guarantee, under the Loan Documents, or any other agreement or indulgence or compromise; and the Guarantor shall remain bound in all respects under this Guarantee, without any loss of any rights by the Lender and without affecting the liability of the Guarantor, notwithstanding any such exchange, surrender, release, change, alteration, renewal, extension, continuance, compromise, waiver, inaction, extension of further credit or other dealing. In addition, all moneys available to the Lender for application in payment or reduction of the Indebtedness or any Aggregate Obligations may be applied by the Lender in such manner and in such amounts and at such time or times and in such order, priority and proportions as the Lender may see fit. Additional Undertakings . The obligations and liabilities of the Guarantor under this Guarantee are in addition to the obligations and liabilities of the Guarantor under the Additional Undertakings (as hereinafter defined). The discharge of any or all of the Guarantor's obligations and liabilities under any one or more of the Additional Undertakings by the Guarantor or by reason of operation of law or otherwise shall in no event or under any circumstance constitute or be deemed to constitute a discharge, in whole or in part, of the Guarantor's obligations and liabilities under this Guarantee. Conversely, the discharge of any or all of the Guarantor's obligations and liabilities under this Guarantee by the Guarantor or by reason of operation of law or otherwise shall in no event or under any circumstance constitute or be deemed to constitute a discharge, in whole or in part, of the Guarantor's obligations and liabilities under any of the Additional Undertakings. The term "Additional Undertakings " as used in this Guarantee shall mean any other guaranty of payment, guaranty of performance, completion guaranty, indemnification agreement or other guaranty or instrument creating any obligation or undertaking of any nature whatsoever (other than this Guarantee) now or hereafter executed and delivered by the Guarantor to the Lender in connection with the Loan.Successors And Assigns; No Assignment By Guarantor . Each reference in this Guarantee to the Lender shall be deemed to include its successors and assigns, in whose favor the provisions of this Guarantee shall also inure. Each reference in this Guarantee to the Guarantor shall be deemed to include all heirs, executors, administrators, legal representatives, successors and assigns, if any, of the Guarantor, all of whom shall be bound by the provisions of this Guarantee, provided, however, that the Guarantor shall in no event nor under any circumstance have the right, without obtaining the prior written consent of the Lender, to assign or transfer the Guarantor's obligations and liabilities under this Guarantee, in whole or in part, to any other person, party or entity. Definition of "Guarantor" . If any Guarantor shall be a partnership, the agreements and obligations on the part of the Guarantor contained in this Guarantee shall remain in force and application, notwithstanding any changes in the individuals composing the partnership, and the term "Guarantor" shall include each altered or successive partnership, but the predecessor partnerships and their partners shall not thereby be released from any obligations or liability under this Guarantee. If any Guarantor shall be a corporation, limited liability company, or other entity, then the agreements and obligations on the part of the Guarantor contained in this Guarantee shall remain in force and application notwithstanding the merger, consolidation, reorganization or absorption of such entity, and the term "Guarantor" shall include such new entity, but the old entity shall not thereby be released from any obligations or liabilities under this Guarantee. No Waiver By Lender . No delay on the part of the Lender in exercising any right or remedy under this Guarantee or failure to exercise any such right or remedy shall operate as a waiver in whole or in part of any such right or remedy. No notice to or demand on the Guarantor shall be deemed to be a waiver of the obligations of the Guarantor or of the right of the Lender to take further action without notice or demand as provided in this Guarantee. No course of dealing between the Guarantor and the Lender shall change, modify or discharge, in whole or in part, this Guarantee or any obligations of the Guarantor under this Guarantee. Lender's Written Approval Required For Changes . This Guarantee may only be modified, amended, changed or terminated by an agreement in writing signed by the Lender and the Guarantor. No waiver of any term, covenant or provision of this Guarantee shall be effective unless given in writing by the Lender and if so given by the Lender shall only be effective in the specific instance in which given. The execution and delivery hereafter to the Lender by the Guarantor of a new instrument of guaranty or any reaffirmation of guaranty, of whatever nature, shall not terminate, supersede or cancel this instrument, unless expressly so provided in such new instrument, and all rights and remedies of the Lender, either under this Guarantee or under any instrument of guaranty hereafter executed and delivered to the Lender by the Guarantor, shall be cumulative and may be exercised singly or concurrently.Authority; Enforceability; Approvals; No Violations . The Guarantor represents and warrants to the Lender that: 18.1 neither the execution and delivery of this Guarantee, nor the consummation of the transactions contemplated by this Guarantee, nor compliance with the terms and provisions of this Guarantee, will violate any applicable provision of law or any applicable regulation or other manifestation of governmental action; and 18.2 all necessary approvals, consents, licenses, registrations and validations of any governmental regulatory body, including, without limitation, approvals required to permit the Guarantor to execute and carry out the provisions of this Guarantee, for the validity of the obligations of the Guarantor under this Guarantee and for the making of any payment or remittance of any funds required to be made by the Guarantor under this Guarantee, have been obtained and are in full force and effect. If the Guarantor is an entity, then the Guarantor also represents and warrants that: 1) this Guarantee has been validly authorized, executed and delivered by the Guarantor, and 2) the Guarantor has the power to execute and deliver this Guarantee, and to perform its obligations under this Guarantee, and 3) this Guarantee constitutes the legally binding obligation of the Guarantor and is fully enforceable against the Guarantor in accordance with the terms of this Guarantee. Notices . Each notice, request or demand given or made under this Guarantee (each such notice, request, or demand being called a "Notice ") shall be in writing and shall be hand delivered or sent by Federal Express or other reputable courier service or by postage prepaid registered or certified mail, return receipt requested. Each Notice which is given by the Guarantor or the Lender (the party giving the Notice is called the "Sending Party ") to the other (such other party being called the "Receiving Party ") shall be deemed given: (a) when received by the Receiving Party at its address set forth below, if such Notice is hand delivered or is sent by Federal Express (or other reputable courier service) to such address, and (b) three (3) business days after being postmarked and addressed to such Receiving Party at its address set forth below if sent by registered or certified mail, return receipt requested: If to the Guarantor: {{{61/GUARANTOR}}} {{{62/ADDRESS OF GUARANTOR}}}Attention: {{{63/GUARANTOR'S REPRESENTATIVE}}} With a copy to: {{{65/GUARANTOR'S ATTORNEY}}} {{{66/LAW FIRM OF GUARANTOR'S ATTORNEY}}} {{{67/ADDRESS OF GUARANTOR'S ATTORNEY}}} If to the Lender: {{{1/LENDER}}} {{{2/ADDRESS OF LENDER (FOR NOTICES)}}} Attention: {{{4/LENDER'S REPRESENTATIVE}}} With a copy to: {{{12/LENDER'S ATTORNEY}}} {{{13/LAW FIRM OF LENDER'S ATTORNEY}}} {{{14/ADDRESS OF LENDER'S ATTORNEY}}} When the Sending Party gives a Notice to a Receiving Party, then such Sending Party will use reasonable efforts also to send a copy of such Notice to the address which immediately follows the address of the Receiving Party and is preceded by the legend "With a copy to." However, failure to deliver such copy or copies to any address which is immediately preceded by such legend shall have no consequence whatsoever to the effectiveness of any such Notice if it is nonetheless actually given as provided above to the Receiving Party. Each party to this Guarantee may designate a change of address by Notice given, as provided in this Guarantee, to the other party fifteen (15) days prior to the date such change of address is to become effective. Applicable Law . This Guarantee is, and shall be deemed to be, a contract entered into under and pursuant to the substantive laws of the State of {{{87/STATE WHOSE LAW GOVERNS}}} and shall be in all respects governed, construed, applied and enforced in accordance with the laws of the State of {{{87/STATE WHOSE LAW GOVERNS}}} without regard to principles of conflicts of laws. Nevertheless, the Lender is hereby given the right to elect, in its sole and absolute discretion, that this Guarantee be governed by the laws of the state in which the collateral, if any, for the Indebtedness is situate.Jurisdiction and Venue . The Guarantor agrees to submit to personal jurisdiction in the State of {{{87/STATE WHOSE LAW GOVERNS}}} in any action or proceeding arising out of this Guarantee. In furtherance of such agreement, the Guarantor hereby agrees and consents that without limiting other methods of obtaining jurisdiction, personal jurisdiction over the Guarantor in any such action or proceeding may be obtained within or without the jurisdiction of any court located in {{{87/STATE WHOSE LAW GOVERNS}}} and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon the Guarantor by registered or certified mail to, or by personal service at, the last known address of the Guarantor, whether such address be within or without the jurisdiction of any such court. The Guarantor hereby further agrees that the venue of any litigation arising in connection with the Indebtedness or in respect of any of the obligations of the Guarantor under this Guarantee, shall, to the extent permitted by law, be in {{{88/COUNTY FOR VENUE}}}. No Exculpatory Provision Applies to Guarantor . No exculpatory provisions (if any) which may be contained in any Loan Document shall in any event or under any circumstances be deemed or construed to modify, qualify, or affect in any manner whatsoever the obligations and liabilities of the Guarantor under this Guarantee. Counterparts . If there is more than one Guarantor, then this Guarantee may be executed in one or more counterparts by some or all of the parties to this Guarantee. Each counterpart of this Guarantee need not be signed by each signatory. Each such duplicate counterpart which has been signed by at least one signatory, when combined with other counterparts which have been signed by the other signatories, shall be deemed an original. The failure of any party listed below to execute this Guarantee, or any counterpart hereof, or the ineffectiveness for any reason of any such execution, shall not relieve the other signatories from their obligations under this Guarantee, nor shall any implication arise, from the failure of any of the original guarantors to sign this Guarantee, that such non-signing guarantor, or any other guarantor, is released from any of such non-signing guarantor's, or other guarantor's, respective obligations under the original guaranty. Waiver of Trial By Jury . THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND THE LENDER BY ITS ACCEPTANCE OF THIS GUARANTEE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS GUARANTEE.IN WITNESS WHEREOF, the Guarantor has duly executed this Guarantee the day and year first above set forth. WITNESS/ATTEST: {{{61/GUARANTOR}}} _________________________ Individual Acknowledgement4 State Of {{{30/STATE OF ORIGINAL LOAN CLOSING}}} ) ss.: County Of {{{29/COUNTY OF ORIGINAL LOAN CLOSING}}} ) On {{{28/DATE OF ORIGINAL LOAN CLOSING}}}, before me personally came {{{61/GUARANTOR}}}, to me known and known to me to be the individual described in and who executed the foregoing instrument and acknowledged to me that {{{61/GUARANTOR}}} executed the same. _______________________ Notary Public Corporate Acknowledgement State Of {{{30/STATE OF ORIGINAL LOAN CLOSING}}} )ss.: County Of {{{29/COUNTY OF ORIGINAL LOAN CLOSING}}} ) On {{{28/DATE OF ORIGINAL LOAN CLOSING}}}, before me personally came {{{63/GUARANTOR'S REPRESENTATIVE}}}, to me known, who, being by me duly sworn, did depose and say that {{{63/GUARANTOR'S REPRESENTATIVE}}} resides at {{{63.1/ADDRESS OF GUARANTOR'S REPRESENTATIVE}}}; that {{{63/GUARANTOR'S REPRESENTATIVE}}} is {{{63.2/TITLE OF GUARANTOR'S REPRESENTATIVE}}} of {{{61/GUARANTOR}}}, the corporation described in and which executed the above instrument; and that {{{63/GUARANTOR'S REPRESENTATIVE}}} signed the above instrument by authority of the Board of Directors of said corporation. 4 The following forms of acknowledgment are accepted for use in New York. Most states have adopted the Uniform Acknowledgment Act, the Uniform Acknowledgments Act, the Uniform Recognition of Acknowledgments Act, or the Uniform Law on Notarial Acts, so the forms of acknowledgement have become standardized. ____________________________ Notary Public General Partnership Acknowledgement State Of {{{30/STATE OF ORIGINAL LOAN CLOSING}}} )ss.: County Of {{{29/COUNTY OF ORIGINAL LOAN CLOSING}}} ) On {{{28/DATE OF ORIGINAL LOAN CLOSING}}}, before me personally came {{{63/GUARANTOR'S REPRESENTATIVE}}}, to me known and known to me to be a partner of {{{61/GUARANTOR}}}, {{{64.3/TYPE OF GUARANTOR}}}, and known to me to be the individual described in and who executed the foregoing instrument as a partner of {{{61/GUARANTOR}}}, and acknowledged before me that {{{61/GUARANTOR}}} executed such instrument as a partner in such partnership for the uses and purposes in said instrument set forth. ______________________________Notary Public LENDER'S ALTERNATIVE PROVISIONS FOR GUARANTEE 1฀ Continuing Guarantee . The above form of Guarantee guarantees the payment of the Loan and certain related indebtedness. Alternatively, the definition of the "Indebtedness" in Section of the Guarantee can be broadened to include all indebtedness of the Borrower to the Lender, whenever incurred, at least until the Guarantor gives notice of termination of the Guarantee. The Guarantee should then clearly cover all indebtedness of the Borrower to the Lender which is incurred on or before the date that the Lender actually receives notice of such termination. Such a Guarantee is called a "continuing" guarantee. 2 ฀ Completion Guarantee . If the Guarantee is intended to be not a guarantee of payment or collection, but instead a guarantee that improvements will be constructed on the Mortgaged Property, then add the following provisions to the Guarantee. The following provisions assume that the Lender and the Borrower enter into a separate Construction Loan Agreement (in the form contained on this floppy disk), which defines each of the capitalized terms used below in this Section but which are not defined below. 2.1 Delete Section of the Guarantee, and substitute the following for such Section: 1 Guarantee of Performance; Duty of Reimbursement 1.1 Guarantee Of Borrower's Performance . The Guarantor absolutely, irrevocably and unconditionally guarantees to the Lender that: [a] the Borrower shall construct and complete the Work in accordance with the Plans and otherwise in accordance with the provisions of the Construction Loan Agreement, and [b] the Borrower shall pay all costs and expenses incurred in connection with the construction and completion of the Work; [c] the Borrower shall complete the construction of all alterations, fixtures and other work in accordance with each existing or future lease or occupancy agreement with each tenant, licensee or other occupant of the Real Estate (or any part thereof) (each such tenant, licensee, or other occupant being called a "Tenant "), to the extent such construction is required to be performed by the Borrower (all such construction described in this subparagraph being called the "Tenant Work "); [d] the Borrower shall pay all costs and expenses incurred in connection with the Tenant Work; [e] the Borrower shall keep the Real Estate and the Improvements free and clear of all liens connected with or arising from the construction or completion of the Work and all Tenant Work, whether equal or prior in lien or other priority or subordinate to the lien of the Mortgage. 1.2 Guarantor's Duty To Reimburse Lender . If the Borrower does not take and complete the actions specified in the preceding subparagraphs [a] to [e] of the immediately preceding paragraph of this Guarantee, in accordance with the provisions of the Construction Loan Agreement and the other documents evidencing or securing the Note (the Construction Loan Agreement and all such other documents being collectively called the "Loan Documents "), or if an event of default shall occur and shall be continuing beyond any applicable grace and cure period under this Guarantee or any other Loan Document, then the Guarantor shall reimburse the Lender, upon demand, for all costs and expenses (including, but not limited to, reasonable attorneys' fees and disbursements of the Lender's counsel, whether in-house staff, retained firms or otherwise), to the extent not otherwise reimbursed to the Lender by the Borrower, in connection with: [a] the construction of the Work in accordance with the provisions of the Construction Loan Agreement; [b] the construction of the Tenant Work; [c] the construction of any work to meet the requirements of each Tenant, to the extent required to be done at the sole cost and expense of the Lender, or any designee or wholly owned subsidiary of the Lender which may acquire all or any part of the Real Estate, or any purchaser from the Lender or such designee or subsidiary (the Lender, such designee, such subsidiary, and each such purchaser, being collectively called the "Subsequent Transferee ") pursuant to the provisions of any lease or occupancy agreement entered into by the Subsequent Transferee subsequent to the date upon which the Subsequent Transferee obtains title to the Real Estate (or any part thereof) by reason of either a foreclosure of any of the Loan Documents, or acceptance of a deed or assignment in lieu of a foreclosure or sale or otherwise, with respect to any portion of the Real Estate; and[d] the removal of any lien caused by the Borrower's failure to comply with the provisions of the Construction Loan Agreement or any other Loan Document, or arising from the construction of the Work (whether such lien is equal or prior in lien or other priority or subordinate to the lien held by the Lender pursuant to the Loan Documents, and irrespective of whether the validity, priority or enforceability of any such lien has been adjudicated by a court of competent jurisdiction or otherwise). Such reimbursement (as provided in this Section 1.2 ) shall be made to the Lender by the Guarantor as provided in this Guarantee: 1) whether or not such costs and expenses are incurred by the Lender prior or subsequent to the Lender declaring the Loan immediately due and payable or the occurrence of any Event of Default (as defined in this Guarantee), 2) whether or not any Loan Document is modified in any bankruptcy or insolvency proceeding or otherwise, and 3) even though the Lender may not have an allowed claim (for any amount guaranteed by the Guarantor pursuant to this Guarantee) against the Borrower as a result of any bankruptcy or insolvency proceeding. The Guarantor further covenants and agrees, if requested by the Lender, to complete or to cause the construction of the Work in accordance with the Construction Loan Agreement and the Plans. 1.3 "Indebtedness" . "Indebtedness ," as used in this Guarantee, means all obligations of the Guarantor under this Guarantee, together with the obligation, if any, of the Borrower and any third party to pay any amount guaranteed by this Guarantee or any part thereof. 2.2 Add to Section ("Indemnity By Guarantor") the following subparagraph immediately after subparagraph (and then renumber the subparagraphs thereafter): 7.3 the failure by the Borrower to construct the Work or the Tenant Work or to take any other action which is required to be taken by the Borrower as provided in this Guarantee or any other Loan Document. 2.3 Add the following as a new Section to the Guarantee after Section 10 ("Event of Default"), and then renumber the subsequent Sections: 11 Specific Enforcement . The Guarantor agrees that it will be impossible to accurately measure the damages to the Lender resulting from a breach of the covenants by the Guarantor to complete (or to cause the completion of) the Work or the Tenant Work or any other construction or work which the Guarantor is obligated to perform pursuant to this Guarantee, that such a breach will cause irreparable injury to the Lender and that the Lender has no adequate remedy at law in respect of such breach. As a consequence, the Guarantor agrees that each such covenant specified in this paragraph shall be specifically enforceable against the Guarantor. The Guarantor hereby waives, and agrees not to assert, any defense to any specific enforcement by the Lender of any such covenant by the Guarantor. 2.4 Add the following language to the beginning of Section of the Guarantee: any of the Plans, and 3 ฀ Guarantee of Carrying Costs . Some Lenders may require the Guarantor to deliver a Guarantee that all carrying costs relating to the collateral will be paid as and when incurred. If the Lender wants a "carrying cost" Guarantee, then substitute, in exchange for the first two sentences of Section of the Guarantee, the following: The Guarantor guarantees, absolutely, irrevocably and unconditionally, to the Lender the payment of the Carrying Costs. "Carrying Costs " means all operating expenses and carrying costs of any nature whatsoever incurred in connection with the property securing the Loan (such property being called the "Collateral "), including, without limitation, real estate taxes and assessments, insurance premiums, management and brokerage fees, tenant improvements and leasing commissions, renovations, utility payments, maintenance and repair expenses, maintenance and service contracts for the operation of the Mortgaged Property, attorneys' fees and court costs, all other expenditures which are properly expensed or amortized consistent with generally accepted accounting principles applied on a consistent basis, and debt service on: 1) any loan or other indebtedness secured by the Collateral (or any part thereof) other than the Loan, 2) any future loan or other indebtedness secured by the Collateral, or any part thereof (including, without limitation, in the case of any such existing or future loan or indebtedness, all principal, interest - including specifically all interest accruing from and after the commencement of any case, proceeding or action under any existing or future laws relating to bankruptcy, insolvency or similar matters with respect to the obligor under any such note or the then owner of any Collateral - and all other sums of any nature whatsoever which may or shall become due and payable in connection with any such loan or indebtedness, all of the above unaffected by modification thereof in any bankruptcy or insolvency proceeding, and even though the holders of the interests in such loan or indebtedness may not have an allowed claim for the same against the obligor under any such loan or indebtedness or the then owner of the Mortgaged Property as a result of any bankruptcy or insolvency proceeding). All Carrying Costs not paid by the Borrower will be paid by the Guarantor ten (10) days after demand from the Lender. "Indebtedness " means all obligations of the Guarantor under this Guarantee, together with the obligation, if any, of the Borrower and any third party to pay the Carrying Costs or any part thereof. 1. Guarantee Of Borrower's Obligations Regarding Exceptions To Nonrecourse Limitation . Even if the Lender is making a nonrecourse loan, and is not requiring any personal guarantee of the Loan, the Lender may still need the principals of the Borrower to guarantee the Borrower's obligations with respect to the "bad acts" which are exceptions to the nonrecourse provisions. For example, if the Borrower is a shell corporation, and its principals steal rents from the Mortgaged Property, or defraud the Lender, then the Lender will want such principals to acknowledge their personal liability directly to the Lender. 4 ฀ Financial Covenants By Guarantor . The Guarantor may be required to make various financial covenants to the Lender, such as with respect to the Guarantor's debt service ratio and loan to value ratio. For sample language, see Section 5 ("Debt Service Coverage Ratio") of the Lender's Optional Provisions for Loan Commitment . 5 ฀ Multiple Guarantors . Most lenders generally prefer to have a separate Guarantee for each Guarantor. If there are separate Guarantees for each Guarantor, and one Guarantor is able to invalidate its Guarantee, then this will be less likely to result in invalidation of the obligations of the other Guarantors. If, nonetheless, there is more than one Guarantor, then the Lender might consider inserting the following new Section into the Guarantee: Multiple Guarantors The term "Guarantor" as used in this Guarantee shall, if this Guarantee is signed by more than one party, unless otherwise stated in this Guarantee, mean the "Guarantor and each of them" and each undertaking contained in this Guarantee shall be their joint and several undertaking. The Lender may proceed against none, one or more of the Guarantor at one time or from time to time as the Lender sees fit in its sole and absolute discretion. The problem is that this clause is an awkward and inefficient way of achieving the meaning intended by the drafter of the Guarantee. In some contexts in the Guarantee, for example, the drafter will mean "all Guarantors," while in other contexts the drafter will prefer "each" or "any" Guarantor. The best approach is to search for "Guarantor" wherever it appears in the Guarantee and to customize each particular reference for the desired meaning. 6 ฀ New York Provisions . In the case of a New York guarantor, or a guaranty which may be enforced in New York State or be subject to New York State law, then the following Section should be added to the Guarantee (but not to a Completion Guarantee or an Environmental Guarantee) as a new Section (numbered "24" or the applicable Section number), and the subsequent Section should also be renumbered: Instrument For The Payment of Money . The Guarantor acknowledges and agrees that this Guarantee is, and is intended to be, an instrument for the payment of money only, as such phrase is used in § 3213 of the Civil Practice Law and Rules of the State of New York, and the Guarantor has been fully advised by its counsel of the Lender's rights and remedies pursuant to said § 3213. 2. Additional Events Of Default . Additional clauses (regarding "acts of bankruptcy" by the Guarantor) will be required to be added to Section ("Event of Default") of the Guarantee only if they are not already part of the Loan Documents. Section 4.1 of the Mortgage currently contains language making the bankruptcy, insolvency, etc. of the Guarantor a default under the Mortgage. 3. Limiting Risk Of Avoidance Of Guarantee . If there is any risk of avoidance of the Guarantee as a fraudulent transfer, 5 then the Lender can consider adopting a formula which limits the guaranteed amount to the Guarantor's net worth. 6 Alternatively, the Lender could insert the following provision in the Guarantee 5 See § 8.01[8] of the main text of this book. 6 See Cherkis, Collier Real Estate Transactions and the Bankruptcy Code ¶ 2.04 at 2-121 (1995). as a new Section (numbered "24" or the applicable Section number), and the subsequent Section should also be renumbered:Limit On Indebtedness . Notwithstanding anything to the contrary in this Guarantee, the amount of the Indebtedness which is guaranteed by the Guarantor pursuant to this Guarantee shall not exceed the maximum amount which may be guaranteed by the Guarantor yet not be subject to avoidance (or annulment) under any federal or state law prohibiting fraudulent transfers or fraudulent conveyances (including, without limitation, Section 548 of the Bankruptcy Code). 7 4. Guarantor Liable For Last Portion . If the Guarantor is liable for only a portion of the Indebtedness, then the following should also be added to the Guarantee as a new Section (after Section of the Guarantee). If the following language is not added, then generally payments will be deemed to be applied first to the guaranteed portion of the Indebtedness (until it is reduced to zero), and then to the unguaranteed portion. 8 The following Section should be numbered "2" or the applicable Section number, and the Sections thereafter should be renumbered: Guarantor Liable For Last Portion of Indebtedness . The Guarantor agrees that no portion of any sums applied, from time to time, in reduction of the Indebtedness (other than sums paid by the Guarantor pursuant to the provisions of this Guarantee) shall be deemed to have been applied in reduction of the Guarantor's Share of Indebtedness. The Guarantor's Share of Indebtedness shall be the last portion of the Indebtedness to be paid. This Guarantee shall remain in full force and effect, and shall not be deemed discharged, until the earlier of: 1) the date upon which all of the obligations and liabilities of the Guarantor under this Guarantee shall have been performed and discharged by the Guarantor in accordance with the provisions of this Guarantee, or 2) the Indebtedness has been paid in full, and the Lender has no further obligation to the Borrower under the Loan Documents; provided, however, that this sentence is subject to the other provisions of this Guarantee. 7 See Cherkis, Collier Real Estate Transactions and the Bankruptcy Code ¶ 2.04 at 2-121 (1995). 8 Restatement Third, Property (Mortgages) § 1.1, Illus. 5 at 11 (1997). GUARANTOR'S ALTERNATIVE PROVISIONS FOR GUARANTEE 9 5. Guarantee Of Payment Only . The Guarantor may agree to guarantee only payment of the Borrower's financial obligations to the Lender, and not the performance of the Borrower's obligations. Such payment obligations may be further limited to only principal and interest (excluding unliquidated contingent obligations under indemnities, for example). The exact language limiting the scope of the Guarantee is subject to negotiation, but several examples are set forth below (see Section ("Guarantee of Payment Of Portion Of Principal") below. 7 ฀ Guarantee of Payment Of Portion Of Principal . If the Guarantor is not guaranteeing the entire Indebtedness, but only a percentage of the unpaid principal amount, then the Guarantor should consider the following language: 2.1 On page 1 of the Guarantee (in the last "Whereas" clause), and in the first sentence of Section 1 , change "the Indebtedness" to "the Guaranteed Portion of the Indebtedness." Similar changes should be made at each other point that the "Indebtedness" appears in the Guarantee. Then, in such first sentence of Section 1 , add a period after "Indebtedness," and delete the remainder of such sentence, if the Guarantor is guaranteeing no other obligations. Similarly, delete "and performance" from the heading to, and the first sentence of, Section ("Guarantee Of Payment And Performance") of the Guarantee. Also, the Guarantor may want to limit the scope of Section ("Indemnity By Guarantor"). 2.2 Add the following, as a new Section after Section 1 of the Guarantee (and then renumber the subsequent Sections), if the Guarantor is guaranteeing 100% of the interest on the Loan: 2 Guarantor's Share of Indebtedness . "Guarantor's Share of Indebtedness " as used in this Guarantee means the total of: 1) a portion of the outstanding principal balance of the Loan equal to the Guarantor's Principal Share (defined below), provided that whenever the outstanding principal balance of the Loan is equal to, or less than, the Guarantor's Principal Share, then the Guarantor's Share of Indebtedness shall be the outstanding principal balance of the Loan, (2) all interest and additional interest (including specifically Post-Bankruptcy Interes