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4A.02[4][c] Joint and Several Guaranty of Performance and Obligations JOINT AND SEVERAL GUARANTY OF PERFORMANCE AND OBLIGATIONSPREMISES: LANDLORD: TENANT: DATE OF LEASE AND THIS GUARANTY: GUARANTOR:1. In consideration of, and as an inducement for, the granting, execution and delivery of the above-captioned Lease (hereinafter the "Lease") and in further consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned Guarantor (which term shall be deemed to include the named Guarantor and its successors and assigns), ___________ a corporation ____________ having offices at ____________, New York, New York hereby, absolutely, unconditionally and irrevocably guarantees to Landlord the full and prompt performance and observance of all the Tenant's obligations under the Lease, including, without limitation, the full and prompt payment of all rent and additional rent (including, without limitation, Landlord's reasonable attorneys' fees, expenses and disbursements for the collection thereof) payable by Tenant under the Lease and Tenant's indemnity obligations benefiting Landlord under the Lease (hereinafter all such obligations of Tenant are collectively referred to as the "Obligations"), all irrespective of the validity, binding effect, legality or enforceability of the Lease or whether the Lease shall have been duly executed or validly entered into by Tenant, or any other circumstance which might now or hereafter or otherwise constitute a legal or equitable discharge or defense of a guarantor or of Guarantor. Guarantor hereby covenants and agrees with Landlord that if a default shall at any time occur in the payment of any rent or additional rent, Guarantor shall and will forthwith upon demand pay such rent and additional rent, and any arrears thereof to Landlord in legal currency of the United States of America for payment of public and private debts. 2. This Guaranty is an absolute, unconditional and irrevocable guaranty of payment and of performance (and not merely of collection). This Guaranty shall be enforceable against Guarantor without the necessity of any notice of nonpayment, nonperformance or nonobservance, or any notice of acceptance of this Guaranty, or any other notice or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives. If Tenant shall default in the payment or performance of any of the Obligations, Guarantor shall, upon demand, pay or perform the same in place of Tenant. 3. Guarantor hereby expressly agrees that this Guaranty shall be a continuing guaranty and that the validity of this Guaranty and the obligations and liability of Guarantor hereunder shall in no way be terminated, affected, diminished or impaired by reason of (a) the assertion of or the failure of Landlord to assert against Tenant any of the rights or remedies reserved to Landlord pursuant to the terms, covenants and conditions of the Lease or (b) any assignment of the Lease, or (c) subletting by Tenant of all or any portion of the Premises or (d) any renewal or extension of the Lease or any modification or amendment thereof, whether pursuant to the Lease or by subsequent agreement of Landlord and Tenant, or (e) any extension of time that may be granted by Landlord to Tenant, or (f) any consent, release, indulgence or other action, inaction or omission under or in respect of the Lease, or (g) any dealings or transaction or matter or thing occurring between Landlord and Tenant or (h) any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship affecting Tenant or Tenant's successors or assigns whether or not notice thereof is given to Guarantor, or (i) any impairment of the Obligations by law, order of any court or otherwise, or (j) Landlord's receipt, applications or release of any security given for the payment or performance of the Obligations, or any matter or thing whatsoever, whether or not specifically mentioned herein, other than full payment and performance of all Tenant's Obligations under the Lease.4. No failure or delay on the part of Landlord in exercising any right, power or privilege under this Guaranty shall operate as a waiver of or otherwise affect any such right, power or privilege, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. 5. Guarantor agrees that whenever at any time or from time to time Guarantor shall make any payment to Landlord or perform or fulfill any term, covenant, or condition hereunder on account of the liability of Guarantor hereunder, Guarantor will notify Landlord in writing that such payment is for such purpose. No such payment by Guarantor pursuant to any provision hereof shall entitle Guarantor, by subrogation or otherwise, to any payment from Tenant or out of any of the property of Tenant by setoff, lien or otherwise, and Guarantor does hereby waive any and all claims and rights by law or contract however arising, of subrogation, setoff, reimbursement, contribution, exoneration or indemnity (or any similar right) from and against Tenant or any affiliated entity of Tenant arising out of or in connection with the Obligations, this Guaranty or any said payments of Guarantor required hereunder. Said waiver of Guarantor shall terminate on a date (the "Termination Date") which is the later of 370 days after (i) expiration or termination of the Lease or (ii) after payment or discharge in full of all the Obligations owing by Tenant under the Lease; provided, and only if, neither Tenant nor the Guarantor shall be the subject of any bankruptcy or insolvency proceeding prior to the Termination Date. Until Tenant's Obligations to Landlord are satisfied or discharged, Guarantor does hereby and shall be deemed to subordinate any present or future claims of Guarantor against Tenant, or any firm, person, corporation or entity controlled by, controlling or under common control with Tenant, to the payment and performance of Tenant's Obligations to Landlord and Guarantor shall not receive or retain any payment or thing of value as payment for such claims including any security therefor. 6. Guarantor agrees that it will, at any time and from time to time, within ten (10) business days following written request by Landlord, execute, acknowledge and deliver to Landlord, a statement certifying that this Guaranty is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating such modifications). Guarantor agrees that such certificates may be relied on by anyone holding or proposing to acquire any interest in the building in which the Premises are located from or through Landlord or by the holder of any mortgage or superior lease. 7. The Guarantor represents and warrants to Landlord as follows: 7.1 The execution, delivery and performance by Guarantor of this Guaranty have been duly authorized by all necessary corporate action. 7.2 Guarantor is not in default in the terms and conditions of any agreement to which it is a party or by which it is bound, such as would materially or adversely affect its ability to carry out the terms, covenants and conditions of this Guaranty. 7.3 Guarantor has the full power, authority and legal right to execute and deliver, and to perform and observe the provisions of this Guaranty including the payment and performance of all Obligations. This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable in accordance with its terms except as enforcement thereof may be limited due to (a) bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally or (b) the nonavailability of equitable remedies which are discretionary with the courts. 7.4 Guarantor is not in violation of any decree, ruling, judgment, order or injunction applicable to it, nor any law, ordinance, rule or regulation of whatever nature which, when taken alone or in the aggregate, would materially and adversely affect its ability to carry out any of the terms, covenants, and conditions of this Guaranty or would impair Landlord's rights to receive the benefits hereunder. There are no actions, proceedings or investigations pending or threatened against or affecting Guarantor (or any basis therefor known to Guarantor) before or by any court, arbitrator, administrative agency or other governmental authority or entity, which when taken alone or in the aggregate, if adversely decided, would materially or adversely affect its ability to carry out any of the terms, covenants and conditions of this Guaranty or would impair Landlord's rights to receive the benefits hereunder. 7.5 No authorization, approval, consent or permission (governmental or otherwise) of Guarantor's shareholders or of any court, agency commission or other authority or entity is required for the due execution, delivery, performance or observance by the Guarantor of this Guaranty or for the payment of any sums or performance hereunder. Guarantor agrees that if such authorization, approval, consent, filing or permission shall be required in the future in order to permit or effect performance of the obligations of Guarantor under this Guaranty, Guarantor shall promptly inform Landlord or any of its successors or assigns and shall use its best efforts to obtain such authorization, approval, consent, filing or permission. 7.6 Neither the execution or delivery of this Guaranty, nor the consummation of the transactions herein contemplated, nor the compliance with the terms and provisions hereof, conflict or will conflict with or result in a breach of any terms, conditions, or provisions of the Certificate of Incorporation, By-laws or similar documents of Guarantor or of any law, order, writ, injunction or decree of any court or governmental authority, or of any agreement or instrument to which Guarantor is a party or by which it is bound, or constitutes or will constitute a default thereunder. 7.7 Guarantor is not entitled to immunity from judicial proceedings and Guarantor agrees that, should Landlord or any of its successors or assigns bring any suit, action or proceeding in New York or any other jurisdiction to enforce any obligation or liability of Guarantor arising, directly or indirectly, out of or relating to this Guaranty, no immunity from such suit, action or proceeding will be claimed by or on behalf of Guarantor nor will Guarantor object to the jurisdiction of the court wherein Landlord brings such actions.7.8 All of the Tenant's issued and outstanding stock is owned by Guarantor. 7.9 There has been no material adverse change in the business or condition, financial or otherwise, results of operations or prospects of Guarantor since ____________, as shown in Guarantor's audited financial statements, dated _________, 20__, copies of which have been delivered to Landlord. 8. Guarantor covenants and agrees that it will maintain its corporate existence, rights and franchise in full force and effect so long as the Guaranty is outstanding, and will notify Landlord of any material or adverse change in its financial condition. 9. It is a condition of the granting, execution and delivery of the Lease that Guarantor execute and deliver this Guaranty and Guarantor deems the granting, execution and delivery of the Lease to be in Guarantor's best interest and as owner of all of Tenant's issued and outstanding stock, Guarantor expects to derive benefit therefrom. The obligations and liabilities of Guarantor under this Guaranty shall not be subject to or impaired by any counterclaim, set-off, deduction or defense based upon any claim Guarantor may have against Landlord. 10. Guarantor acknowledges and agrees that all disputes arising, directly or indirectly, out of or relating to this Guaranty may be dealt with and adjudicated in the state courts of New York or the federal courts sitting in New York; and hereby expressly and irrevocably submits the person of Guarantor to the jurisdiction of such courts in any suit, action or proceeding arising, directly or indirectly, out of or relating to this Guaranty. So far as is permitted under the applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners specified in this Guaranty, or as otherwise permitted by law, shall be necessary in order to confer jurisdiction upon the person of Guarantor in any such court. 11. Provided that service of process is effected upon Guarantor in one of the manners hereafter specified in this Guaranty or as otherwise permitted by law, Guarantor irrevocably waives, to the fullest extent permitted by law, and agrees not to assert, by way of motion, as a defense or otherwise, (a) any objection which it may have or may hereafter have to the laying of the venue of any such suit, action or proceeding in an inconvenient forum, or (b) any claim that it is not personally subject to the jurisdiction of the above-named courts. Provided that service of process is effected upon Guarantor in one of the manners hereafter specified in this Guaranty or as otherwise permitted by law, Guarantor agrees that final judgment, from which Guarantor has not or may not appeal or further appeal, in any such suit, action or proceeding brought in such a court of competent jurisdiction, shall be conclusive and binding upon Guarantor and may be enforced and collected, so far as it is permitted in the federal courts and in any other courts to the jurisdiction of which Guarantor is subject, including, without intending any limitation, , the courts of the State of New York, by a suit upon such judgment and that the Guarantor will not assert any defense, counterclaim, or right of set off in any such suit upon such judgment. 12. Guarantor hereby irrevocably designates and appoints Tenant ("Agent"), as its authorized agent to accept and acknowledge on its behalf service of any and all process which may be served in any suit, action or proceeding of the nature referred to in this Guaranty in any state court of New York or federal court sitting in New York. Agent, by executing this Guaranty irrevocably consents to and accepts its designation and appointment as agent for service of process upon Guarantor. Said designation and appointment shall be irrevocable until the date upon which the term of the Lease, including any extensions thereof, expires. Agent covenants and agrees that it shall not cease so to act unless and until Guarantor shall have irrevocably designated and appointed another such agent or agents satisfactory to Landlord and shall have delivered to Landlord or any of its successors or assigns, evidence in writing of such other agent's acceptance of such appointment and any attempt by such agent to cease to so act shall be ineffective and without force or effect unless the foregoing provisions of this sentence shall be complied with. 13. Guarantor agrees to execute, deliver and file all such further instruments as may be necessary under the laws of the State of New York, in order to make effective (a) the appointment of Agent as agent for service of process, (b) the consent of Guarantor to jurisdiction of the state courts of New York and the federal courts sitting in New York and (c) the other provisions of this Guaranty; and hereby appoints Landlord its attorney-in-fact under irrevocable power of attorney coupled with an interest, to provide said further instruments. 14. Guarantor hereby consents to process being served in any suit, action or proceeding of the nature referred to in this Guaranty by the mailing, postage prepaid, return receipt requested, to the address specified above or to any other address of which Guarantor shall have given written notice to Landlord, or to Agent at the Premises. Guarantor irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any such service and agrees that such service (a) shall be deemed in every respect effective service of process upon Guarantor in any such suit, action or proceeding and (b) shall, to the fullest extent permitted by law, be taken and held to be valid personal service upon and personal delivery to Guarantor. 15. Nothing in this Guaranty shall affect the right of Landlord to serve process in any manner permitted by law or limit the right of Landlord or any of its successors or assigns, to bring proceedings against Guarantor in the courts of any jurisdiction or jurisdictions. 16. Should Landlord be obligated by any bankruptcy or other law to repay to Tenant or to Guarantor or to any trustee, receiver or other representative of Guarantor or of them, any amounts previously paid with respect to Tenant's Obligations, then this Guaranty shall be reinstated in the amount of such repayment. Landlord shall not be required to litigate or otherwise dispute its obligation to make such repayments if it in good faith and on the advice of counsel believes that such obligation exists. 17. If this Guaranty shall be held ineffective or unenforceable by any law or ruling of any court of competent jurisdiction, Guarantor shall be deemed to be a tenant under the Lease with the same force and effect as if Guarantor was expressly named as joint Tenant therein with joint and several liability. 18. All remedies afforded to Landlord by reason of this Guaranty are separate, independent and cumulative remedies and it is agreed that no one of such remedies, whether exercised by Landlord or not, shall be deemed to be in exclusion of any other remedy available to Landlord and shall not limit or prejudice any other legal or equitable remedy which Landlord may have. Guarantor shall not directly or indirectly sell, lease or otherwise dispose of all or substantially all of its properties or assets, unless the transferee of Guarantor's properties and assets shall assume all of the obligations of Guarantor under this Guaranty pursuant to a written instrument of assumption, in form and substance reasonably satisfactory to Landlord, and in the event of such assumption, Guarantor and such transferee shall be jointly and severally liable for all of the obligations of Guarantor under this Guaranty. Guarantor shall not dispose of less than all of its properties or assets unless, in each instance, Guarantor receives fair value in exchange therefor.19. All defined terms used in this Guaranty which are defined in the Lease shall have the meaning ascribed to such terms in the Lease. This Guaranty shall continue in full force and effect so long as any of the Obligations remains unpaid or unperformed (whether or not the Lease shall have terminated). 20. If any provision of the Guaranty or the application thereof to any person or circumstance shall to any extent be held void, unenforceable or invalid, then the remainder of this Guaranty or the application of such provision to persons or circumstances other than those as to which it is held void, unenforceable or invalid shall not be affected thereby and each provision of this Guaranty shall be valid and enforceable to the fullest extent permitted by law. 21. As further inducement to Landlord to make and enter into the Lease and in consideration thereof, Guarantor hereby waives trial by jury and the right thereto in any action or proceeding of any kind or nature, arising, on, under or by reason of or relating to, this Guaranty or any agreement collateral hereto. 22. No waiver or modification of any provision of this Guaranty nor any termination of this Guaranty shall be effective unless in writing and signed by Landlord, nor shall any waiver be applicable, except in the specific instance for which it is given. 23. The laws of the State of New York applicable to contracts made and to be performed wholly within the State of New York shall govern and control the validity, interpretation, performance and enforcement of this Guaranty. 24. This Guaranty shall be binding upon Guarantor and its successors and assigns and inure to the benefit of Landlord and its successors and assigns. IN WITNESS WHEREOF, Guarantor and Tenant (for the purpose of accepting Agent's obligations) have duly executed this Guaranty as of the day and year first above written. GUARANTOR[NAME] By:____________________President TENANT, AS AGENT [NAME] By:____________________President GUARANTOR: State of New York ) County of ) ss.: On the ______________ day of ________________ in the year 2002 before me, the undersigned, personally appeared___________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity(ies), and that by his/her signature on the instrument, the individual, or the person or entity upon behalf of which the individual acted, executed the instrument. __________________ Notary Public TENANT, AS AGENT: State of New York ) County of ) ss.: On the ____________ day of ____________________ in the year 2002 before me, the undersigned, personally appeared ______________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity(ies), and that by his/her signature on the instrument, the individual, or the person or entity upon behalf of which the individual acted, executed the instrument. __________________ Notary Public