MANUAL ON GUARANTIES AND SURETIES

NOVEMBER 18, 2009

THE MATERIAL USED IN mrs MANUAL IS FOR TEACHINGOF THE PIDLADELPIDA CLE SEMINAR.

Gregory G. Gosfield, Esq.Klehr, Harrison, Harvey, Branzburg & Ellers LLP260 S. Broad Street 0 Philadelphia, PA 19102-5003 0

Tel: 215.569.4164 0 Fax: 215.568.6603GGosfield@klehr.com

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MANUAL ON GUARANTIES AND SURETIESl

1. CHARACTERISTICS 11.1. The Guaranty Family 11.2. Surety ,o•••••••••• 11.3. Indemnity 21.4. Hold Harmless 21.5. Guaranty of Defense 31.6. General or Special : 31.7. Absolute or Conditional. 31.8. Payment or Collection : 31.9. Parties 31.10. Joint and Several. 31.11. Obligationin US Dollars 41.12. Confession ofJudgment 7

2. DEFENSES 92.1. Change in Status of Obligee 92.2. Assignment 92.3. Invalidity · 92.4. Void Obligation 92.5. Death of Guarantor 92.6. Due on Death 92.7. Discharge by Creditor Discharge of Guaranty 92.8. Defenses of the Surety 112.9. Discharge by Operation ofLaw : 112.10. Statute of Limitations 112.11. Joint Guarantors 122.12. Preventive Provisions 122.13. Fraudulent Conveyance 122.14. Ineffective Waiver 132.15. Subrogation 13

3. TYPES OF GUARANTIES 143.1. Absolute Unconditional and Continuing Guaranty 143.2. Accommodation Guaranty 143.3. Antifraud or Fidelity Guaranty 153.4. Bottom or Last Dollar Guaranty 153.5. Completion Guaranty 153.6. Cross-Stream Guaranty 153.7. Downstream Guaranty 163.8. Exploding Guaranty 163.9. Good Guy Guaranty 163.10. Indemnity 173.11. Last Out Guaranty (of Collection) 17

1 Thanks to Jawad H. Salah, Esq. for his assistance in preparing this material.

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3.12. Limited Collateral Recourse Guaranty 173.13. Master Lease 183.14. Non-Recourse Guaranty 203.15. Note Purchase or "Put" Agreement.. .203.16. Operating Deficit Guaranties 213.17. Out ofFormula Guaranty 213.18. Reducing Guaranty 213.19. Remarketing Agreement , 213.20. Snap-Back, Claw-Back, or Springing Guaranty 213.21. Stand-by Letter of Credit. 213.22. Top or First Dollar Guaranty 223.23. Upstream Guaranty 233.24. Warranty 23

ATTACHMENTS

Attachment A - Cited Sections from Revised UCC §3-605 , 20Attachment B - Cited Sections from Restatement of Suretyship 22Attachment C - Selected Bibliography 24

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MANUAL ON GUARANTIES AND SURETIES

1. CHARACTERISTICS

1.1. The Guaranty Family. Guaranties, warranties.i sureties, indemnities, holdharmless are variants ofthe promise by one guarantor to be responsible for the obligations ofsomeone else. Though some authorities characterize the guaranty agreement as a potential futureliability and not currently enforceable until the Borrower fails to perform, the provision thatprovides the guaranty itself is usually surrounded by a number of representations, warranties, andother covenants which are then currently enforceable. The.general.rule oflaw is that a guarantyis a separate independent contract, and the guarantor has secondary liability after the default ofthe debtor is proven.' As a guaranty is simply a form of contract, it requires no special language

. and can be created by writing; but some authorities say it is subject to the statute of frauds as toguaranties that would otherwise be oral and implied by course of conduct.

1.2. Surety. A surety has two distinguishing features when compared to a guaranty.First, it implicates primary and joint liability with the borrower. Second, whereas a guarantortypically answers a reasonable effort for collection to compel the principal to perform first, andthen notice.of the failure; but the surety does not. Third, a surety can be joined as a co­responsible party, but a guarantor is liable under a separate contractual relationship. Fourth, aguarantor can be revoked until the offer to act as accepted, but a surety is initially andimmediately irrevocable unless the right to revoke is reserved.

"This Agreement shall be an Agreement of suretyshipas well as ofguaranty. Lender may proceed directly against Guarantorwhenever Borrower fails to make any payment when due, orotherwise fails to perform any obligation now or hereafter owed toLender without being required to proceed first against Borrower or

2 Though once considered the same, a warranty is distinguished by being a primary obligation, and liability is basedon whether the assertion made is as represented. A representation, on the other hand, is not actionable iftheaggrieved party knows or should have known it was false. "The technical difference between representations andwarranties - representations are statement ofpast or existing facts and warranties are promises that existing or futurefacts are or will be true - has proven unimportant in acquisition practice. See Freund, Anatomy ofa Merger 153(1975). Separating them explicitly in an acquisition agreement is a drafting nuisance, and the legal import of theseparation has been all but eliminated." ABA Model Stock Purchase Agreement Commentary at 46. "Under Ziff­Davis's theory [which the court rejects], the reliance which is a necessary element for a claim of breach ofexpresswarranty is essentially that required for a tort action based on fraud or misrepresentation - i.e., a belief in the truth ofthe representations made in the express warranty and a change ofposition in reliance on that belief."***This view of"reliance" - i.e., as requiring no more than reliance on the express warranty as being a part of the bargain betweenthe parties - - reflects the prevailing perception of an action for breach of express warranty as one that is no longergrounded in tort, but essentially in contract. The express warranty is as much a part of the contract as any otherterm. Once the express warranty is shown to have been relied on as part ofthe contract, the right to be indemnifiedin damages for its breach does not depend on proofthat the buyer thereafter believed that the assurances of factmade in the warranty would be fulfilled. The right to indemnification depends only on establishing that the warrantywas breached." (citations omitted) CBS, Inc. v Zif.fDavis Publishing Co., 75 N.Y. 2d 496,502-504 (Ct ofApp1990). See Model Asset Purchase Agreement at pages 214-217

3 The vise oflogic requires that if a person is directly liable as a borrower, it cannot also be secondarily liable as aguarantor.

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any other person or entity, or against the Real Estate pursuant tothe Mortgage or against any other security for Borrower'sobligations to Lender.,,4

1.3. Indemnity. An indemnity is considered a primary liability but the loss coveredmust be suffered, rather than anticipated. A promise to compensate or make whole theguarantied party after damages are assessed or a loss is sustained, a reactive stance. Like otherguaranties, indemnities can be broad or limited. Although parties frequently attempt to waivethem, typical defenses to indemnity obligations include the negligence or willful misconduct ofthe indemnified party. Indemnification as used in the corporate context is a misnomer to a realestate specialist because it connotes protection from liability to third parties after damages havebeen determined, whereas corporate lawyers have adopted a broader meaning for that term,covering liability between the contract parties as welL Indemnification in the corporatetransactional agreement is really a stand-in for the default remedy of damages. The buyer isentitled to indemnification for loss from seller's breach of representations or covenants, any pre­existing conditions, broker commission, or Seller's retained liabilities, among other things.

104. Hold Harmless. A hold harmless agreement is frequently considered preemptive,requiring the guarantor to prevent loss, rather than make whole after a loss. A promise to keepthe guarantied party free from cost, damage or liability, a proactive stance. Like indemnityagreements, discussed above, hold harmless agreements can be used to address performanceobligations that may not directly relate to the loan or the financial terms thereof (such as debtservice obligations), for example, they can protect a lender from potential costs, or thediminution of the value of its collateral, by forcing the borrower (and/or the creditworthyguarantor) to be responsible for and perform obligations affecting the real property, such asenvironmental issues, damage claims, and property loss.

4 This confirms that Agreement is a guaranty ofpayment not a guaranty of collection. In Pennsylvania, a guaranty isdeemed to be an agreement of suretyship unless it expressly states that it is a guaranty ofcollection. Pa.Stat.Ann.Tit.§1 (West 1999): Every written agreement hereafter made by one person to answer for the default ofanother shallsubject such person to the liabilities ofsuretyship, and shall confer upon him the rights incident thereto, unless suchagreement shall contain in substance the words: "This is not intended to be contract ofsuretyship, " or unless eachportion ofsuch agreement intended to modify the rights and liabilities ofsuretyship shall contain in substance thewords: "This portion ofthe agreement is not intended to impose the liability ofsuretyship. " See United States v.Shirman, 41 F.R.D. 368,373 (N.D.Ill. 1966) which, in granting summary judgment, held that a guarantor ofcollection,c,reditor's negligence, or lack ofdue diligence, could not lost or dissipated the collateral could not be .adefense from [a] guarantor ofpayment. See Istituto Mobiliare Italiano, S.p.A. v. Motorola, Inc., 689 F. Supp. 812,817 (N.D. Ill. 1988), where the District Court observed that although "impairment of security resulting from acreditor's unreasonable conduct, negligence or bad faith normally discharges a surety from liability to the extent ofthe impairment, the defense of impairment ofcollateral is not available to one who has given an unconditionalguarantee ofpayment."

5 "The common law definition of the term 'indemnification' describes a restitutionary cause of action in which aplaintiff sues a defendant for reimbursement ofpayments made by the plaintiff to a third party. A court may hold,therefore, that a drafter's unadorned use of the term 'indemnification' (usually coupled with "and hold harmless")refers only to compensation for losses due to third-party claims .... Modem usage and practice have redefmed theterm "indemnification" in the acquisition context to refer to compensation for all losses and expenses, from anysource, caused by a breach of the acquisition agreement (or other specified events). The courts, presumably, willrespect express contract language that incorporates the broader meaning." (cites omitted). ABA Model AssetPurchase Agreement at 221.

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1.5. Guaranty of Defense. A guaranty to provide legal representation and expenses todefend the guarantied party from costs of claims.

1.6. General or Special. A general guaranty can be exercised by any holder. It neednot name obligees. A special guaranty is for the benefit of specifically identified obligees. Thereal estate guaranties are almost always special guaranties.

1.7. Absolute or Conditional. Though guaranties require the default by the borroweras a pre-condition to liability, absolute guaranties require no other action, and conditionalguaranties require some other action.

"Guarantor's obligations hereunder shall be absolute,unconditional and irrevocable, regardless ofwhether the proceedsof the Loan are disbursed prior or subsequent to the filing of aFederal or state bankruptcy petition with respect to Borrower.Guarantor's obligations under this Agreement shall include, butnot be limited to, any interest, late charges, attorneys' fees, or othersumscoming due under the terms of the Loan Documents (withoutreference to the effect of Bankruptcy laws) subsequent to the filingofaFederal or state bankruptcy petition with respect to Borrowerregardless ofwhether applicable Bankruptcy laws permit suchsums to be collected from Borrower or to accrue with respect toBorrower."

1.8. Payment or Collection. One significant difference is in guaranties ofpayment orcollection. The former is considered absolute; if the borrower does not pay when due, then theguarantor shall. •The latter is considered actionable only if the borrower does not pay and thecreditor cannot collect after exercising due diligence.

1.9. Parties. Guarantors can be individuals or entities. If the Guarantor is anindividual, Guarantor's spouse cannot sign this Agreement solely because of the spouse's maritalrelationship with the Guarantor, or the spouse's guaranty would be a violation of the EqmilCredit Opportunity Act, 15 U.S.C. §1691(a); Reg. B, 12 C.F.R. §202.7(d) (2001), and cansubject the Lender to a claim for punitive damages even when actual damages cannot bedemonstrated.6

1.10. Joint and Several. The distinctions are antique and anachronistic, but still createdifferent results in some jurisdictions, including Pennsylvania. Generally, if the parties arejointly liable, then they are liable together for the obligation, whereas if they are severally liable,then each of them is liable separately for the obligation. Joint liability imposes the followingthree rules:

(1) Compulsory joinder ofjoint promissors;

(2) Judgment for or against all joint promissors;

6 See Eure v. Jefferson Nat. Bank, 448 S.B. 2d 417 (Va. 1994) and Anderson v. United Finance Co., 666 F.2d 1274,1278 (9th Cir. 1982).

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(3) Discharge for all joint promissors as a result of the discharge of any jointpromissory.

The courts have held that in the absence of a stated intent, the parties are deemed to be jointlyrather than severally liable. Ifone of the jointly liable parties is in bankruptcy or otherwiseunable to be joined, an action which would otherwise be required to name all partners may besubject to being stopped.

"If Guarantorconsists ofmore than one person, firm, orcorporation, the obligations and liabilities under this Agreement ofthose persons, firms and corporations shall be joint and several,"and the word "Guarantor" shall mean all or some or any of them.For purposes of this instrument the singular shall be deemed toinclude the plural, and the neuter shall be deemed to include themasculine and feminine, as the context may require."

1.11. Obligation in US Dollars.

1.11.1. Formation. Pennsylvania requires ofliens only that they state the amountof the original indebtedness. There is no specific requirement for a dollar amount.8

1.11.2. Recording. The Records Office of each county in which each mortgagedproperty is situated has to be consulted on the issue of recording euro-denominated mortgages.State law does not suggest any impediment to such recording, but neither does any state authorityrequire the counties to accept euro-denominated mortgages.

1.11.3. Satisfaction. The statutory form of mortgage satisfaction pieces, 21 P.S.§721-5, does not preface the amount blank with a dollar sign. However, the same MortgageSatisfaction Act does require a plaintiff-debtor suing for mortgage satisfaction to express indollars the debt such plaintiff claims to have satisfied,

7 See Keystone Bank v.Flooring Specialists.. Inc., 518 A.2d.1179 (Pa-: 1987) where the Pennsylvania Supreme Courtanswered this in the affirmative. See also In re: Robert Bahara and Elaine Bahara, 219 B.R. 77,1998 U.S. Dist.LEXIS 3067, 35 UCC Rep. Servo 2d (Callaghan) 1253 (1998): "It must be emphasized that subsection [§3"606](a)(I) relates to the release of an individual from liability that effectively destroys a co-surety's right ofrecourseagainst the released party. An express reservation ofrights against the non-discharged parties is presumed topreserve rights ofrecourse.. This explains why a non-discharged co-surety obtains a discharge ofhis obligation forany amount due in excess ofhis proportionate share ofthe debt, but not for his proportionate share of the debt." Incommenting on whether the debtors were entitIedto the impairment ofcollateral defense under UCC section3­606(a)(2) ofthe UCC under their guaranty, the Banlcruptcy Court stated, "[t]his defense applies where the co-suretyis obligated to pay more than his proportionate share of the underlying debt and the creditor has taken some actionwith respect to collateral otherwise available to the co-surety to enforce the contribution rights against other co­sureties. Under UCC §3606, the co-surety bears the burden ofdemonstrating that the creditor's alleged impairmentof the collateral has resulted in the co-surety being liable for more than its pro-ratashare, i.e., the creditor's action inregard to collateral has impaired a co-surety's ability to recover full contribution for any amount in excess of the co­surety's proportionate share of the debt." Id. at 84.

8 See, M., 1 P.L.E. COMMERCIAL TRANSACTIONS § 51 (2003)("No particular form of words is necessary in order toconstitute a mortgage; it is sufficient if it be in writing, signed by the owner ofthe particular property or interestmortgaged, and specify the debt for which it is security.")

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1.11.4. Procedural Forum. Each of the administrative provisions referencedaboverequire that the parties use "substantially... the following form." There is no case lawindicating whether a foreign currency expression ofdebt constitutes a legally substantialdeviation from the statutory form. However, would be grossly against the equities for thePennsylvania court system to deny satisfaction where a debt has been paid in full and accordingto its terms.

1.11.5. Foreclosure. Pennsylvania's form ofcivil action requires a statement ofthe amount in controversy, in part to determine whether, under county rules, the claim mustundergo compulsory arbitration. Pa. RC.P. Rule 1021 (2003)~ That determination requires adollar expression of the amount demanded. In a foreclosure action, the Praecipe for Writ andWrit ofExecution are both set up to express all amounts in dollars. Pa. RC.P. Rule 3256 and3257, respectively. Again, plaintiff must use "substantially... the following form."

1.11.6. County administrative issues. In addition, the National Mortgage LawSummary (2003)(hereinafter, "Bluebook") cautions that counties may impose poundage(typically based on a percentage of the value ofthe foreclosed-upon property) and may set adollar-denominated minimum bid (based partially on the poundage and the value oftax liens, ifany). Bluebook 257. Additional researchwill have to be done to see whether each county; in itswide zone. ofdiscretion under Pennsylvania law, has implemented further institutional barriers toa e11ro-denominated foreclosure sale.

1.11.7. Analysis: Legal Impediments to a Euro-Denominated Award. In additionto these administrative hurdles, it remains an open question whether a Pennsylvania court canissue a euro-denominated judgment. The established rule in the United Kingdom and the UnitedStates had been that courts could not enforce, and therefore could not enter, ajudgment in anycurrency other than that issued by their sovereign." The Pennsylvania state case most on-point,Pennsylvania RR Co. v. Cameron, 80 Pa 458 (1924), expressed the traditional rule that, "Ourcourts cannot give judgment in sterling currency. It would be ineffective, as there would be nomeans to enforce it; therefore they must reduce the pounds, shillings, and pence mentioned in thebill of lading into American currency at the rate there fixed, which is the par nominal or normalrate of exchange." Cameron is currently cited by 10 Standard Pennsylvania Practice 2d § 65:10,Judgments, generally, for the proposition that: "When a verdict is rendered for a specific sum ofmoney on an obligation stated in terms of a foreign currency, the foreign currency mentioned inthe instrument must be reduced to its equivalent in terms of American currency." Cameronhasn't been cited by a court since 1950. Its decision may have rested, without explicit citation,on now-excised provisions of the federal Coinage Act of 1792. 10 However, there is no case lawcontrary to Cameron in Pennsylvania, neither among state cases nor in the decisions of thefederal Third Circuit. Like many states, Pennsylvania has not adopted the Uniform ForeignMoney Claims Act, which would clarify the issue. The last time a federal court with jurisdictionover Pennsylvania considered the matter,'! "[t]he parties agree [d] that a United States court

9 See, generally, Crystal Beal, "Comment: Foreign Currency Judgments: A New Option for United States Courts,"19 U. Pa. J. Int'l Econ. L. 101 (1998).

10 see Beal, supra, at 106-08

11 Nikimiha Securities Ltd. v. Trend Group Ltd., 646 F.Supp. 1211 (B.D. Pa.1986).

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cannot render a judgment in foreign currency; its judgment must be expressed in United StatesCurrency." That court gave considerable attention to the issue ofwhich date's exchange rate touse. It concluded: "If a state rule is not applied, forum shopping will occur. A defendant facing asuit demanding payment would seek removal when the federal rule was less favorable to thecreditor. It would be inequitable to allow diverse defendants to have this advantage wheresimilarly situated non-diverse defendants would not. There is no strong countervailing federalinterest in the application of federal law and no harm to any federal policy or interest. Therefore,the issue is substantive and state law applies."l2 Finding "no decision of the PennsylvaniaSupreme Court determining the date for conversion of foreign currency in a breach of contractaction" and "no decision of the Superior Court on this issue either,,,13 the court held: "In theabsence of precedent, we believe the Pennsylvania Supreme Court would look to theRestatement ofForeign Relations Law of the United States (Tent. Draft No.6 1985). Section 823provides that the "conversion rate is to be made at such rate as to make the creditor whole and toavoid rewarding a debtor who has delayed in carrying out the obligation." (provision adopted onMay 14, 1986). This rule prevents fluctuating exchange rates from causing the injured or non­breaching party to bear the loss. Here, defendants have resisted paying a debt owed for more thantwo years so that they should bear the risk of a fluctuating exchange rate. ,,14 However, "[e]ven ifPennsylvania would not adopt the Restatement view, such authority as there is makes it clear thatthe intention of the parties should controL See Willing's Estate, 292 Pa. 51, 140 A. 558 (1928)."In that case, the question ofwhether one of an estate's bequests would be transferred in gold orpaper francs was resolved by looking at the intent of the decedent. By the court's logic, if a loanagreement interpreted under Pennsylvania law specified a payment-date conversion (the safestthing for the bondholders), then the court should enforce that provision.

1.11.8. Conclusion. The parties are free under Pennsylvania law to: (1) chooseNew York law and (2) set a conversion date, at lease as close to the payment of the bondholdersas the date of entry ofjudgment. It is not clearly established whether, either as a matter ofNewYork law or as a private contractual matter, the parties could specify conversion as of thepayment date (which would pose the least currency risk to bondholders). Also, there are avariety ofadministrative hurdles that a euro-denominated mortgage may confront, and not all ofthem can be determined in advance.

1.11.9. Proposed Strategies:

(a) The mortgage is to be paid in euros.

(b) However, the parties agree on a USD Initial IndebtednessEquivalent to the amount owed in euros. They also agreeon a Running USD Equivalent of the principal due, whichwill be continually calculated based on interday rates.

12 Id. at 1228.

13 Id. at 1227.

14 Id

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(c) They further agree, for the convenience of the parties, thatthe USD Equivalents may be supplied by either party toany governmental entity which requires them for theforming, recording, taxing, or enforcing of the mortgage.However, every time such Equivalents are given, the otherparty shall be given notice, and they shall be given with adisclaimer that the Equivalents only reflect the dollar valueof a debt denominated in euros.

(d) Lender shall have the option to convert its euro­denominated mortgage into a dollar-denominated mortgageand a hedge, executed by the borrower to the benefit of thelender. Both instruments shall be secured by the real estate.The value of the hedge will be the sum of US dollarsneeded to purchase the euros, if any, owing to bondholdersafter the conversion of dollar-denominated payments(including judgments) on the mortgage. Since both the newmortgage and the hedge will be expressed in dollars, therewill be no issue of enforceability in US courts.

(e) Lender's conversion option shall be triggered automaticallyin the event that lender calls a default.

1.12. Confession of Judgment. In Pennsylvania, this is incorporated by Lender'scounsel as a companion document to both the Note and the Agreement. This practice is theresult of court decisions providing that a borrower could waive its due process rights to adeprivation of hearing and notice when it voluntarily, knowingly and intelligently consents to anagreement containing a cognovit clause. 15

"For Pennsylvania Guaranties: THE FOLLOWING PARAGRAPHSETS FORTH A WARRANT OF AUTHORITY FOR ANATTORNEY TO CONFESS JUDGMENT AGAINST THEGUARANTOR. IN GRANTING THIS WARRANT OFATTORNEY TO CONFESS JUDGMENT AGAINST THEGUARANTOR, THE GUARANTOR HEREBY KNOWINGLY,INTENTIONALLY, AND VOLUNTARlLY, AND, ON THEADVICE OF THE SEPARATE COUNSEL OF THEGUARANTOR, UNCONDITIONALLY WAIVES ANY ANDALL RIGHTS THE GUARANTOR HAS OR MAY HAVE TOPRIOR NOTICE AND AN OPPORTUNITY FOR HEARINGUNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF

15 See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994) (stating that "judgment against areasonably sophisticated, corporate debtor who has signed an instrument containing a document permittingjudgment by confession as part of a commercial transaction is enforceable in the same manner as any otherjudgment); Rappaportv. Norlar, Inc., No. 93-4756,1994 U.S. Dist. Lexis 5754 at *18 (E.D. Pa. April 29, 1994) andGermantown Savings Bank v. Talacki, 520, 657 A.2d 1285,1289 (pa. Super. Ct. 1995).

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THE UNITED STATES AND THE COMMONWEALTH OFPENNSYLVANIA.

GUARANTOR HEREBY AUTHORIZES ANY ATTORNEYOF ANY COURT OF RECORD IN PENNSYLVANIA, ORELSEWHERE, TO APPEAR FOR GUARANTOR IN ANYACTION BROUGHT ON 'nns AGREEMENT, AND TOCONFESS JUDGMENT AGAINST GUARANTOR FOR ALLPRINCIPAL AND INTEREST AND ALL OTHER SUMSTHEN DUE PURSUANT TO THE TERMS OF THE NOTE,MORTGAGE AND SUCH OTHER COLLATERALDOCUMENTS, OR ANY OF THEM, AND FOR COSTS OFSUIT AND AN ATTORNEY'S COMMISSION OF FIVEPERCENT (5%

) , BUT IN ANY EVENT NOT LESS THANTEN THOUSAND DOLLARS ($10,000.00), TOGETHERWITH INTEREST ON ANY JUDGMENT OBTAINED BYLENDER AT THE RATE OF INTEREST SPECIFIED INTHE NOTE AFTER DEFAULT, INCLUDING INTERESTAT THAT RATE FROM AND AFTER THE DATE OF ANYSHERIFF'S OR JUDICIAL SALE UNTIL ACTUALPAYMENT IS MADE TO LENDER OF THE FULLAMOUNT DUE LENDER, AND FOR SO DOING TillSSHALL BE A GOOD AND SUFFICIENT WARRANT.GUARANTOR WAIVES AND RELINQUISHES ALLERRORS, DEFECTS AND IMPERFECTIONS IN ANYENTRY OF JUDGMENT AS AFORESAID, OR IN ANYPROCEEDING PURSUANT THERETO, AND ALLBENEFITS THAT MAY ACCRUE TO illM BY VIRTUE OFANY LAW OR RULE OF COURT RELATING TO A STAYOF EXECUTION OR EXEMPTING ANY PROPERTYFROM LEVY OR SALE UNDER EXECUTION. THEAUTHORITY HEREIN GRANTED TO CONFESSJUDGMENT SHALL NOT BE EXHAUSTED BY ANYEXERCISE THEREOF BUT SHALL CONTINUE FROMTIME TO TIME AND AT ALL TIMES UNTIL ALLOBLIGATIONS OF BORROWER TO LENDER HAVEBEEN FULLY DISCHARGED."

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2. DEFENSES

2.1. Change in Status of Obligee. An old rule which is still recognizable stands for theproposition that a change in the composition of a partnership defeats its ability to enforce aguaranty to an earlier iteration.i"

2.2. Assignment. Another ancient rule is that an assignment of a special guarantywithout the guarantor's consent may not be enforceable, unless there is not material alteration ofthe guarantor's obligations.V

2.3. Invalidity. A proof of mistake, incompetency, coercion, fraud, concealment,misrepresentation, duress and the like can defeat the enforceability of a guaranty.

2.4. Void Obligation. If the principal obligation is void, such as because it is illegal orunenforceable, the guaranty would faiL But if the principal obligation is merely voidable, thenthe guarantor is not entitledto raise that defense. 18

2.5. Death of Guarantor. Death does not automatically revoke a guarantor's obligationunless expressly provided. But contrary to the assumption that a guaranty would. continueunaffected by.death, it appears that, if the amount and probability of liability is uncertain, thePennsylvania Probate Court is in a position under the Probate Code to fix a number (which maybe far less than the amount guaranteed), .set that aside,. and then permit the estate to distribute thebalance of the assets free of the contingent liability. The reason for this power is to enable.anestate to be liquidated rather than keep an estate open for an indefinite period of time until theamount and fact of liability becomes fixed,

2.6. Due on Death. In some printed forms ofnotes, there is a provision to the effectthat the note becomes due upon the death of any personal guarantor. The reason for thisprovision is to establish that there is a liability and the guaranty becomes fully operative upondefault. It fixes the amount (the obligations due at death), in order to get around the uncertaintyproblem which would otherwise exist.

2.7. Discharge by Creditor Discharge of Guaranty. A guarantor may prove the obligeereleased the guarantor. The release can be express. It can be the result of abandonment. 19 It canresult from impairment of the guarantor's rights. Rights of the guarantor that can be impaired,waive, include:

2.7.1. subrogation,

2.7.2. bad faith,

16 38 AM. JUR. 2d Guaranty § 30. Dozier v. Paterson Co., Inc., 648 So. 2d 610 (Ala. Civ. App. 1994); lola StateBankv. Biggs, 233 Kan. 450, 662 P.2d 563 (1983); Hunt Oil Co. v. Killion, 299 S.W.2d 316 (Tex. Civ. App.Texarkana 1957), writ refused n.r.e.

17 38 AM. JUR. 2d Guaranty § 32.

18 38 AM. JUR. 2d Guaranty § 50.

19 38 AM. JUR. 2d Guaranty § 80.

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2.7.3. concealment ofmaterial facts or incomplete disclosure or risk,

2.7.4. material alteration of the principal obligatiorr'"

2.7.5. impairment of collateral

2.7.6. Creditor taking a new note from debtor

2.7.7. Extension ofmaturity'"

20 William Schluderberg-T.J. Kurdle Co. v. Trice, 198 Va. 85,92 S.E.2d 374 (1956). The guarantee explicitlystated that the guarantor would only provide the guarantee as long as the borrower's indebtedness remained less thanor equal to $2,500. 38 AM. JUR. 2d Guaranty §83. "§ 83. Alteration ofprincipal obligation-Particular changes incontract

Alterations of the contract between the parties to the principal obligation which may cause the release or dischargeof the guarantor include-- the addition of a new party.-a change in the place ofpayment.- a change in the method ofpayment.- a change in the rate of interest (whether an increase or decrease) which the debtor is obligated to pay to thecreditor.- restructuring the guaranteed debt after the guarantor had revoked the guaranty as to any new debt.- an increase inthe principal amount ofa guaranteed mortgage note.- an extension ofcredit beyond the limit stated in the underlying loan agreement.- a renewal ofthe principal obligation.- extending the time to pay the principal obligation.- requiring the debtor to make a prepayment not contemplated in the original underlying principal agreement.- a change in the ownership of the principal creditor or party guaranteed.- a change in the ownership ofthe principal debtor where the lender acquired the debtor then released the debtorfrom the guaranty without the guarantor's consent.On the other hand, changes to the principal obligation held not to release the guarantor include­- formalistic changes in the identity of the principal obligor.- changes made as part of a confirmed bankruptcy reorganization plan.- a change in the way the creditor-bank calculated the "prime rate" upon which the interest rate on the guaranteedloan was based.n extension of additional credit beyond that authorized in the note itself, where the lenqer did.not.attempt to collectmore from the guarantor than the note's limit or where the creditor was aware the limit was being exceeded but didnot protest.- a renewal loan to the incorporated successor of the partnership which was the debtor under the original note,where the guaranty applied to renewals, although there is contrary authority."

21 see also RESTATEMENT OF SURETYSHIP 3rd §33. "Except as provided in §34, a secondary obligor is dischargedfrom the secondary obligation to the extent that the obligee, acting alone or in conjunction with the principal obligoror any other person, takes an action that would otherwise cause the secondary obligor a loss by impairing the abilityofthe secondary obligor to have the principal obligor bear the cost ofperformance owed to the obligee. Suchimpairment may be callsedby:

(a) Release of the principal obligor with respect to the underlying obligation, as further described in §36; or

(b) Extension of time granted to the principal obligor to perform the underlying obligation, as further described in§37; or

(c) Other modification of the underlying obligation, as further described in §38; or

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2.7.8. Failure to perfect

2.7.9. Release, postponement or novation of substitute obligor22

2.7.10. Additional defenses can include impairment of right ofrecourse orsubrogation.f failure to comply with law.24

2.8. Defenses ofthe Surety. By contrast to the guarantor, who has an independentcontract and therefore does not on its face adopt the obligations of the debtor nor the debtor'sdefenses, the surety has primary liability with the debtor.25 .

2.9. Discharge by Operation of Law. There are several circumstances where theguarantor is released from liability based on operation of law, such as the followingr"

2.9.1. Debtor's assignment to creditors, as distinct from its bankruptcy

2.9.2. Creditor's failure to achieve a deficiency judgment on the recovered valueof the collateral

2.9.3. Foreclosure sale of collateral which destroys guarantor's right ofsubrogation.

2.10. Statute ofLimitations. Guarantor is not released due to Lender failure to takeaction against Borrower before the .expiration of the statute of limitations "The secondaryobligor's rights and duties with respect to the principal obligor and the obligee arethe same as if,on the day thatthe statute oflimitations expired, the obligee had released the principal obligor ... without preserving the secondary obligor's recourse against the principal obligor,,27 and

(d) Impairment ofcollateral or other security for the underlying obligation, as further described in §39; or

(e) Refusal oftendered performance,as further described in §40; or

(f) Failure to disclose events giving the secondary obligor the power to terminate the secondary obligation, as furtherdescribed in §41; or

(g) Any other action that impairs the principal obligor's duty ofperfonnance, the principal obligor's duty toreimburse, or the secondary obligor's right ofrestitution or subrogation."

22 See Venaglia v. Kropinak, 956 P.2d 824, 833-835 (N.M. Ct. App. 1998) in which the New Mexico SupremeCourt held that the guarantor's defense that he was fully discharged from his guarantee because of the Settlementagreement between the borrower and the noteholder prejudiced his rights as guarantor fmds support in section 44 ofthe Restatement of Suretyship, stating that ''the proposition set forth in section 44 captures the principle underlyingthe more-specific propositions set forth in ... sections [§§39-43 of the Restatement]." In dicta, the court interpretedArticle 3 of the.DCC not to preclude the common law defenses preserved in section 44 ofthe Restatement. Id. at834-835.

23 • Union Bank v. Gradsky, 265 Cal. App. 2d 40, 44-48 (1968); 2. RESTATEMENT OF SURETYSHIP 3d, §33(g).M .

C.LT. Corp. y. Anwright Corp., 237 Cal. Rptr. 108,3 DCC Rep.2d 1638 (Cal. App. 1987).

25 See American Oil Co. v. Valenti, 28 DCC Rep. 118 (Conn. 1979). C£ treatment of release under DCC §R3­605(b), IV.a., infra.

26 38 AM.JUR. 2d Guaranty § 96.

27 THE RESTATEMENT OF SURETYSHIP, §50.

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"[a]ccordingly, the principal obligor is discharged from duties to the secondary obligor ." and thesecondary obligor is discharged from duties to the obligee...,,28

2.11. Joint Guarantors. When one guarantor pays more than its "proportionate share,"it is entitled to retribution from the other guarantora/"

2.12. Preventive Provisions. Some lenders, in an effort to avoid overreaching andlender liability attendant to that, have tempered their all encompassing domination of theguarantor by stating they are exercising enough self-restraint to avoid pushing the guarantor intobankruptcy by using language like the following:

''Notwithstanding the definition of indebtedness herein, theliability of each guarantor hereunder is limited to the lesser minus$1 (one dollar) of the lowest amount that would render thisguaranty void, voidable, or otherwise unenforceable againstcreditors or creditors' representative under any fraudulentconveyance or similar act or under Sections 433 or 548 oftheBankruptcy Code."

2.13. Fraudulent Conveyance. When a guaranty is made byaparent or subsidiaryentity, there isa risk that the guarantor would later claim, or its creditors would claim there wasinadequate consideration. One way of addressing that is by proving an integration of interestsand benefits to guarantor from borrower's loan. Leverage such as the following can be used.

"Guarantor has.a direct ownershipinterest of [ ]% and [mancialinterest in Borrower and Guarantor will benefit directly from the

.making of the Loan to Borrower."

This Recital attempts to serve several functions. First, substantially integrated this wouldsupport Lender's argument that the relationship between Borrower and Guarantor is such thatconsent by the Borrower to acts of the Lender that might result in a discharge of Guarantor'sobligations toLender is, tantamount to a consent by Guarantor alld thereforeGuarantor' s liabilityremains intact.3o Second, this31 recognizes that guarantors, whose business is to provideguaranties, should not enjoy a technical defense to enforcement where the modification to the -

28 RESTATEMENT OF SURETYSHIP, §43. But see Comment e to section 43, that if the Guarantor consents "expresslyor impliedly" to the Lender's action or waives suretyship defenses it prevents extinguishment ofGuarantor'sobligations takes inconsistent either decidedly for discharge (See 825 S.W.2d 802 (Tex. App. 1992) or decidedlyagainst discharge (See Bloom v. Bender, 313 P.2d 568 (Cal. 1957).

29 "The right to contribution among coguarantors arises from their implicit agreement upon executing the guaranty .that each would contribute his just proportion ofany liability, and stands on an equal footing with any other actionfound on an implied contract. The right to contribution is sometimes described as an equitable concept, subject toequitable defenses. A guarantor is entitled to contribution regardless ofwhether he and his coguarantors signed asingle guaranty agreement or separate guaranty agreements." (footnotes omitted) 38 AM. JUR. 2d Guaranty § 121.

30 See RESTATEMENT OF SURETYSHIP, §§48(2) and 49(2)(a)(i). Comment c to §48, "[I]t is reasonable forthe obligee to assume that when the secondary obligor, acting on behalfofthe principal obligor, agrees toan act, the secondary obligor is also agreeing to that act in its capacity as secondary obligor."

31 RESTATEMENT OF SURETYSHIP, §49 is in line with VCC §3-605(c) and (d).

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Guarantor's obligation is non-material. Third, unless the Guarantor demonstrates prejudicecaused by impairment of recourse or circumstances making the amount of loss difficult tocalculate, this Recital would allocate to Guarantor the burden ofpersuasion as to loss orprejudice caused by Lender's act.

2.14. Ineffective Waiver. Lender's routinely provide for broad and unconditionalWaivers:

"Guarantor waives any other circumstances, occurrence orcondition, whether similar or dissimilar to any of the foregoing,which might otherwise constitute a legal or equitable defense,discharge or release of a guarantor or surety. If Borrower defaultsunder the Loan Documents and Lender is prevented fromaccelerating or collecting payment under the Note and other LoanDocuments (whether because of Borrower's Bankruptcy or anyother reason), Lender shall be entitled to receive from Guarantor,upon demand by Lender, the sums which would have otherwisebeen due.and payable had such acceleration occurred and hadLender been permitted to collectsuch sums from BOITower.,,32

They are alsofreqllently attacked as ineffective. But if clearly waived, the Lender generalprevails.f

2.15. Subrogation. The waiver of the destruction or impairment ofa surety's right ofsubrogation to.unimpaired collateral must be unequivocal before it will effectively preclude aguarantor fromasserting the defense noting that such right does not originate in contract but inlaw.34

32 See RESTATEMENT OF SURETYSHIP, §44 as to enforceability of the Guaranty notwithstanding Lender'simpairment ofGuarantor's recourse against the Borrower.

33 RESTATEMENT OF SURETYSHIP §48(l) which provides in part, "Such waiver, if express, may be effectuated byspecific language or by general language indicating that the secondary obligor waives defenses based onsuretyship." The Restatement goes on to provide in Comment d to §48: "Some indication that suretyship rights arebeing foregone is required; thus, a statement to the effect that the duty of the secondary obligor is absolute orunconditional is ordinarily not sufficient to indicate that the secondary obligor is agreeing to forego discharges basedon suretyship status. . .. General language indicating that the secondary obligor waives defense based on suretyshipis sufficient. The secondary obligor need not waive separately each ground for discharge, nor must the contractdescribe them." Restatement of Suretyship Comment d to §48. See also subsection (i) ofDCC §3-605 (whichsection replaces former section 3-606) which allows waiver ofdefense of impairment ofcollateral, eitherspecifically by general language waiving suretyship defenses or defense of impairment ofcollateral, but see furtherComment 8 to DCC §3-605 which notes that if an accommodation party is a debtor with respect to a note secured bypersonal property collateral, Article 9 also applies, including as to whether and to the extent the debtor's rights underArticle 9 can be waived. Guarantor waives all defenses based on suretyship.

34 Citing Langeveld, the New Jersey Supreme Court reiterated this position in Delaware Truck Sales, Inc. v. Wilson,618 A.2d 303, 310(l~93). See also National Westminster BankNJv. Lomker, 649 A.2d 1328, 1332-1333 (N.J.Super. Ct. App. Div. 1994) (the waiver by a guarantor of the defense of bad faith, fraud, conspiracy and other lendermisconduct must be expressly waived)

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"Guarantor agrees that it shall have no right to be subrogated toLender's interest in the Loan Documents until all amounts owingto Lender have been paid in full. Guarantor's aforesaid right ofsubrogation shall be Guarantor's sole remedy against Borrower,and Guarantor hereby waives any right to indemnification thatGuarantor may have against Borrower. Guarantor understands andagrees that the exercise by Lender of certain rights and remediescontained in the Loan Documents may affect or eliminateGuarantor's right of subrogation against Borrower and thatGuarantor may therefore incur a partially or totally non­reimbursable liability under this Agreement; nevertheless,Guarantor authorizes and empowers Lender to exercise, in its solediscretion, any right and remedies, or any combination thereof, thatmay then be available to Lender, since it is the intent and purposeof Guarantor that the obligations hereunder shall be absolute,independent and unconditional under any and all circumstances."

[ALTERNATE OF SUBROGATION - ''Nothing contained in thisAgreement shall be construed to give Guarantor any right ofsubrogation in and to the Loan Documents or all or any part of theLender's interest in the Loan Documents until all amounts owingto Lender have been paid in full."]

3. TYPES OF GUARANTIES

3.1. Absolute Unconditional and Continuing Guaranty. A guararity without conditionswith revocation effective only as to new debt. Corporate, real estate orpersonal guaranties canall be drafted to be "absolute, unconditional and continuing", and even a limited guaranty may insome circumstances have these characteristics (for example, a guaranty limited as to theguaranteed amount - a certain dollar figure, or a figure in excess of a benchmark, for example,could be "absolute, unconditional and continuing" as to the Guarantor's obligations with respectto such specified debt amount). When unconditional, the status of the Borrower, even itsbankruptcy, does not affect the obligation of the Guarantors.f

3.2.guarantor.

Accommodation Guaranty. A guaranty without separate consideration to the

35 Despite the fact that the Guaranty Agreements were part ofa highly structured transaction and were intended toimpose adverse consequences on the Guarantors for committing any 'bad boy' acts, the contract question is astraightforward one. The state court action is, as was argued by Bank of America at the Hearing, a standard contractcase between two non-debtors that arises under New York law. (Tr.15 :3-5). Such a case does not presentbankruptcy issues and does not arise under the Bankruptcy Code. * * *Upon reading the GuarantyAgreements, itis clear that Bank of America's claim in the state law action is entirely independent of any claims Bank of Americamay have against the Debtors. Section 1.1 of the Guaranty Agreements provides, in relevant part, that each ofLightstone and Lichtenstein "hereby irrevocably and unconditionally covenants and agrees that it is liable for theGuaranteed Obligations as a primary obligor." (Memorandum Supp. at p. 3). Moreover, the Guaranty Agreements,at § 1,10, specifically provide that Lightstone and Lichtenstein have no right of offset or indemnity against theDebtors. (memorandum Stipp. at p. 4). Accordingly, Bank ofAmerica's efforts to recover the guaranteedobligations stand on their own and do not directly impact the Debtors." In re Extended Stay Inc., et al, U.S. Bankr.S.D.N.Y, Case No. 09-13764 (JMP)

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3.3. Antifraud or Fidelity Guaranty. A guaranty where a third party warrants that theinformation provided to the Lender on which the Lender relied is true and accurate. The liabilityof the guarantor only arises upon breach of such representations and the occurrence of loss to theLender. In these types of guaranties, it is important that the guaranty clearly indicate thereliance.

3.4. Bottom or Last Dollar Guaranty. A limited guaranty which remains in existenceuntil the last money outstanding is paid.

"Limitation of Liability of Guarantor. Notwithstanding anythingto the contrary contained in this guaranty or any other LoanDocument, the liability of Agreement hereunder shall not at anytime exceed, and Lender agrees that it will not seek personal orgeneral recourse against Guarantor for the payment or collectiorr"of any Obligations guaranteed hereby in excess of, an amount (the"Maximum Recourse Amount') equal to the lesser of (a) $[ ], or(b) the outstanding unpaid amount ofthe Obligations after givingeffect to any payments or credits to which Borrower may beentitled by law, upon any sale of the Real Estate Property orotherwise, it being the intention hereof that neither (i) payment ofany'portion of the Loan, whether by voluntary prepayment,required amortization or otherwise, nor (ii) satisfaction ordischarge of any portion of the Loan, whether by foreclosure,delivery of a deed in lieu of foreclosure, sale of the Real EstateProperty or otherwise, shall be deemed to otherwise discharge allor any portion of Guarantor's liability hereunder, except to theextent, if any, that the outstanding amount of the Obligationsguaranteed hereby remaining unpaid shall be less than theMaximum Recourse Amount. The foregoing lirriitation shall notlimit Guarantor's liability for any other sums due under thisGuaranty, including, without limitation, interest, costs andexpenses."

3.5. Completion Guaranty. A guaranty that a project will be completed timely andlien-free, sometimes extinguished at the issuance of a certificate of occupancy, usually difficultto enforce. Guaranty of damages for failure to complete timely and lien free is the impliedresult. As one author recently 'noted, "lawyers involved in construction financing have expressedconcerns regarding the practical benefit of completion guaranties. The current recession willlikely provide an environment in which some of those concerns are put to the test.,,3?

3.6. Cross-Stream Guaranty. A guaranty by one affiliate of another affiliate'sobligations, subject to the same legal deficiencies as an upstream guaranty.

36 Iflimited to collection; this provision would create a "last dollar" or "bottom" guaranty to be effective only ifLender can prove it cannot collect the Obligation's final dollars.

37 Thomas Hanahan, "Reconsidering Completion Guaranties", The Practical Real Estate Lawyer, Volume 25,Number 5, page 21, September 2009.

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3.7. Downstream Guaranty. A guaranty by parent or owner of Obligor. Usually moresafe from claims of inadequate consideration to the owner than an upstream guaranty becausepayments by the owner increases its equity in the Obligor by reducing debt of the Obligor. Butthe theory has been successfully challenged where the debt far exceeds the value of the Obligor,and therefore the owner never had meaningful equity. There was also a preference argumentupon an Obligor's bankruptcy that the owner (1) was an insider, (2) knew of Obligor'sinsolvency at least a year before filing, (3) was benefitted as a creditor of Obligor by payments tolender because owner's liability was reduced, and therefore (4) payments to lender werepreferential payments as to the Lender as to 90 days of debt service and as to the Guarantor forone year's debt service who would have to pay that amount to the debtor's estate.i"

3.8. Exploding Guaranty. A guaranty which is partial or limited but becomes generaland personal if the guarantor breaches specific covenants, usually interfering with Lender'sefforts to exercise remedies.

''Notwithstanding the foregoing to the contrary, Lender shall notproceed against Guarantor under this Agreement unless and until(i) Borrower files a voluntary petition in bankruptcy, or (ii) Lendercommences a foreclosure action under the Mortgage or seeks toobtain or execute upon ajudg1llent on oAe or more of the Notes orto confess or execute upon a judgment on one or more of the Notesor to confess orexecute upon a judgment under the Mortgage orone or more ofthe Notes and such action is contested by Borrower,Guarantor, any other guarantor of the Obligations, or anyindividual or entity affiliated or related thereto; provided that, inthe event Borrower raises what Borrower in good faith believes tobe a valid defense to such an action, Lender shall not pursueGuarantor until such defense is disallowed, provided further that ifsuch defense is disallowed, Lender may immediately proceedagainst Guarantor under this Agreement and this.Agreement shallnot be deemed terminated upon the transfer ofthe Premises."

3.9. Good Guy Guaranty. A variant of the Exploding Guaranty, in which the credit-worthy guarantor's obligation ends upon the Borrower or Tenant quietly surrendering by givingback the property. Sample language such as:

''Notwithstanding anything to thecontrary contained in thisguaranty, the guarantor's liability shall be limited to the amount ofunpaid debt service installments (not accelerated principal), withinterest at the Default Rate and without requirements ofpriorapplication of any other security held by the Lender, through andincluding the date that Borrower cooperates with Lender andsurrenders possession to lender of the Mortgaged Premises freefrom claims of entitlement to occupancy or ownership by theBorrower or any other party."

38 [

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3.10. Indemnity. The indemnity language is usually reactive, after the loss is suffered.The Indemnitor would look to qualify it in several ways. To limit its effect to instances of losscaused by the Indemnitor, or its negligence or its malicious acts, and not due to Indemnitee, or itsnegligence or its malicious acts. Indemnitor would also look for a protocol for implementing theindemnification.

"Indemnitor's obligation to indemnify, defend, and hold harmlessis subject to and limited by the following:

(a) Indemnitee providing prompt notice containing adescription of the claim and nature and the amount of theloss;

(b) Indemnitee not contributing to the loss by bad faith, grossnegligence or willful misconduct;

(c) Indemnitee mitigating any loss upon becoming aware ofany event which would require indemnification, to theextent solely in Indemnitee's control, or promptly notifyingIndemnitor of the opportunity to mitigate to the extentmitigation can be performed by Indemnitor or parties otherthan Indemnitee;

(d) Indemnitee attempting to make recovery of the loss frominsurance or other sources ofpayment which wouldotherwise cover such loss, to the extent solely inIndemnitee's control;

(e) Indemnitee not admitting liability, litigating, defending,settling, compromising or discharging any claim for whichIndemnitor would be obligated to indemnify Indemnitee,unless with the Indemnitor's prior reasonable consent;

(f) Indemnitee cooperating with the Indemnitor's defense orprosecution; and

(g) the Indemnitor's right to discharge, bond or insure over anylien imposed upon the Indemnitee's assets in lieu of payingthe amount liened."

3.11. Last Out Guaranty (of Collection). Guaranty to pay amounts due if not collectedfrom Obligor after recovery effort by Lender, or if a recovery effort is not economically feasible,such as where the documents are deficient or the Borrower perpetrated a fraud.

3.12. Limited Collateral Recourse Guaranty. A guaranty can be secured by or limitedto specific collateral.

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"Anything in this Guaranty or in applicable law to the contrarynotwithstanding, in the event of the enforcement of this Guaranty,any recovery against Guarantor will be limited to the assets listedon Exhibit A attached hereto and made apart hereof. If all or amaterial portion ofan asset listed on Exhibit A is, after the date ofthis Guaranty, Transferred or Encumbered, Guarantor will, within30 days after the Transfer or Encumbrance, replace the assettransferred or' encumbered (the "Transferred Asset") with an assetof Substantially Equivalent Value, which will then become part ofExhibit A. If the Transferred Asset is not so replaced and theremaining assets shown on Exhibit A are insufficient to satisfysuch Guarantor's obligations under this Guaranty at the time ofenforcement, then any other assets of Guarantor will be subject toexecution under this Guaranty, but only to the extent of the,Substantially Equivalent Value of the Transferred Asset;excluding, however" each of the following assets: (i) the personalresidence of such Guarantor; (ii) the interest of such Guarantor inABC Ltd., a Texas limited partnership; (iii) the non-business realestate, including rural, vacation and resort property up to $500,000in Fair Market Value of Guarantor; and (iv) the personalautomobiles and other tangible personal property, including,without limitation, household goods, clothing, silverware, jewelryand works of art not to exceed $100,000 in Fair Market Value ofGuarantor."

3.13. Master Lease. This true lease is frequently used where the Borrower does notexpect to meet the lease-up requirements under a loan, but can be used in other situation forcredit enhancement. It may also be used to cover more speculative third party lease space suchas food courts, push-carts, health clubs, or parking garage. It is the progenitor of the syntheticlease. Sometimes it is considered as a way to avoid frustration of enforcement ofguaranties inone action states." Usually, the Guarantor leases but does not occupy property; therefore, it maybe questionable whether it satisfies the loan requirement of "space leases" to "tenants inoccupancy." It is equivalent to a guaranty of cash flow except it requires current, not contingentor future, liability. The typical transaction format is as follows:

3.13.1. Borrower owns the real property collateral;

3.13.2. Borrower executes [a non-recourse] note to Lender, typically with amortgage and sometimes with an assignment of rents;

39 In the case of Union Bankv. Gradsky, 265 Cal. App.2d 40,71 Cal. Rptr. 64 (1968), the court held that, followinga non-judicial sale, the creditor could not recover a deficiency from the guarantor of the debt because the anti­deficiency statute would prohibit the guarantor from exercising the guarantors right ofsubrogation against eh debtor.However, there are several reported cases in which the California courts have had to decide whether torecharacterize other types of agreements as guaranties. The analysis used by the court was to look at how closelythe obligations under the agreement match the obligations under the loan. See, Union Bank v. WinnebagoIndustries, Inc., 528 F.2d 95 (9th Cir. 1975); United California Bankv. THC Financial Corp., 557 F.2d 1351 (9th Cir.1977); and United California Bankv. Maltzman, 34 Cap.App. 3d 41,118 Cal. Rptr. 199 (1975).

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3.13.3. A creditworthy Principal of the Borrower enters into a Master Lease withBorrower for all or a portion of the property;

3.13.4. Borrower assigns to Lender rent from Master Lease.

3.13.5. Principal grants Lender an assignment of sublease rentals;

3.13.6. Principal either grants Lender: a conditional assignment ofPrincipal'sinterest as a tenant in the master lease or enters into an SNDA with Lender.

3.13.7. Virtual Credit Enhancement. A master lease may provide effective thirdparty credit enhancement. The structure can be equivalent to a guaranty of cash flow because the"rent"undetthe master lease can be made equivalentto the required debt service onthe loan.This may be ofparticular use when the property is not expected to have full (or sufficient)occupancy early in the loan term. As third-party tenants lease or sublease space, the "mastertenant" obligation can be reduced (or even eliminated). There are usually required conditions:

(a) Approval by Lender oflease form, base rental rate, andterm extending beyond loan term. Often, there is apreapproved lease form and certain preapproved rentalparameters.

(b) Occupancy of tenant.

(c) Estoppel letter from tenant.

(d) Evidence of completion of tenant finish and lien waivers.

(e) Certificate of Occupancy.

(1) Subordination Agreement.

(g) Solvency of tenant.

3.13.8. Master Lease Defense. A master lease may also contain a rentacceleration clause, effectively giving Lender another way to call the entire loan due upondefault. On the other hand, the Master Lease may theoretically be subject to tenant defensesand/or landlord duties to mitigate damages. Since the landlord is the borrower in this scenario,this could place more strain on an already precarious - or even defaulting - borrower. Moreover,a master lease, like any lease, is potentially subject to rejection by a debtor-in-possession in abankruptcy, thereby further limiting Lender's potential recovery. The Master Lease generally is'bondable" in format: no right of termination, even upon total loss due to casualty,condemnation, or failure of title.

3.13.9. Master Lease Characterization Issues. The benefits and draw-backs ofusing a master lease to effect a guaranty of a debt highlight the possible tension between the"tenant" (in effect, the Guarantor) and the Lender: the former may wish to recharacterize it as aguaranty to take advantage of guarantor-type discharges, the latter may want to characterize it as

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a guaranty but for the opposite purpose, to avoid real property type defenses. The IRS and/or atrustee in bankruptcy may have their own reasons to [re-] characterize a master lease as a lease ora guaranty: for example, the IRS may prefer a guaranty characterization to limit the "tenant's"ability to claim "rent" deductions as a means of expensing principal payments; a trustee orcreditors in bankruptcy may point out that a lease may be rejected as an "executory contract",whereas a "guaranty" may not; a lease rejected by a landlord in bankruptcy may entitle the tenantto retain possession of the premises. Finally, availability of statutory defenses may also informthe particular characterization ofa Master Lease as a guaranty.

3.14. Non-Recourse Guaranty. Generally, a pledge of collateral by Guarantor, but nogeneral liability of guarantor - that is, the lender's recourse against the guarantor is limited to theGuarantor's interest in the guarantor collateral against the guarantor, and not to other assets.Lenders may expand and rely increasingly on "carve-outs" to non-recourse provisions, includingso called "bad boy" acts. Among such carve-outs that may be regaining greater currency in thesetimes are actions amounting to "waste" - whether physical or economic (for example, the failureto satisfy realproperty taxes, leading to potential impairment of the collateral by reason of theimposition of tax liens).

Notwithstanding the foregoing, Guarantor, jointly and severally.shall have full personal liability (i) for the payment of ad valoremtaxes assessed against the Property; (ii) for the payment of allhazard and liability insurance premiums for the Property; (iii) forthe breach of any covenants and warranties made to Lender hereinand those covenants in the Security Instruments executed atclosing which pertain to facts existing at closing which are reliedupon by Lender in making the Loan; (iv) for the payment of allsums due and payable to Lender under the Equity ParticipationAgreement, and (v) for all Deferred Interest. Additionally, nothingherein contained shall limit or be construed to limit the personalliability and obligations ofBorrower or any Guarantor to the eventthat, after a default shall have occurred under the Loan, Borroweror any Guarantor shall collect any rents, issues or profits from anyof the Property and shall not apply the same to the normaloperating expenses of the Property and/or any payments due underthe Note in compliance with the terms of the Note and/or Deed ofTrust, it being intended hereby that Borrower and each Guarantorshall have full personal and partnership liability and be obligated tothe full extent of such rentals, issues, profits, and other itemscollected after a default under the Loan and not applied to saidnormal operating expenses and payments due under the Note incompliance with the terms of the Note and/or Deed of Trust, andthat Lender shall not be limited in any way in enforcing suchliability and obligation.

3.15. Note Purchase or "Put" Agreement. Where a guarantor is obligated to purchasethe Loan. It is equivalent to a guaranty ofprincipal, interest and performance offuturecovenants.

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3.16. Operating Deficit Guaranties. A guaranty to pay project expense shortfalls, whichmayor may not include debt service.

3.17. Out of Formula Guaranty. A guaranty for obligations in excess ofa specificamount.l" The provision should address whether the guarantor's obligation becomes fixed in theevent an overadvance is made or whether the obligation becomes extinguished in the event theout-of-formulasituation is cured. The latter may not be beneficial to a Lender ifthe out-of­formula situation is cured by payment of the better receivables and, even though the out-of­formula situation no longer exists, the lender is now left with a different or lesser mix ofcollateral and yet with no liability on the part of the Guarantor. The lender may want theguaranty, when it becomes effective, to become fixed and effective for all obligations, even iftheover-line or overadvance situation gets cured. The Lender may agree, however, that the guarantywill only become effective as to the amount of the overcredit-line advances or the over-formulaadvances. Whether this type oflimitation effectively protects the Lender will depend on thereasons why the lender was reluctant to make the overadvance and its general underwriting ofthe credit.

3.18. Reducing Guaranty. A guaranty which diminishes. If it is based on payments,the application of the payments should 'be carefully identified: is it principal, interest, othercharges. And ifthe Lender has identified the Loan as non-accruing for internal or regulatorypurposes, can the payment application be deemed an interest payment.

3.19. Remarketing Agreement. Permits guarantor sell collateral and minimize guarantyobligation.

3.20. Snap-Back, Claw-Back, or Springing Guaranty. A guaranty which isextinguished unless certain conditions subsequent occur, which usually are based on nointerference with Lender's exercise of its remedies.

3.21. Stand-by Letter of Credit.

3.21.1. Benefit to Lender. Permits Lender to be paid in full, equivalent to aguaranty by the issuing bank to pay upon receipt of certificate of default. Better liquidity thancash collateral because insulated from bankruptcy.

3.21.2. Structure. Letters of Credit ("LaCs") are commonly used to substitute thecredit of the Borrower with that of the issuing bank. In the typical formulation, the Borrower orits creditworthy principal enters into an LaC agreement with the issuing bank under which thebank will pay over funds to Lender upon a sight draft and demand statement. This "sight draft"arrangement does not require the issuing bank to verify Lender's claims and usually containsbuilt-in protection for the issuing bank against claims arising out of its payment of funds to theLender in compliance with the terms of the LOC. The Borrower and/or creditworthy principal isthen obligated to reimburse by separate Reimbursement Agreement the issuing bank.

40 Minority Equity Capital Corp. v. Weinstein, 31 Bankr. 804, 805 (E.D.N.Y. 1983)

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3.21.3. Limitations. Like other types of credit support, LOCs can be limited insome ways, though they are less flexible than other types of guaranties. The LOC can have aspecific term, it can be revocable under certain circumstances, and it can be "reducible" bypartial draw downs."

3.22. Top or First Dollar Guaranty. The first money collected by Lender reduces theguaranty, and it can be extinguished upon collection of a specific amount or percentage of theobligation.

"The term "Guaranteed Indebtedness" means ... (i) the[ ] ([ ]) of the first amount to be paid ofprincipalfunded by Lender under the Loan Agreement at any oen time; (ii)[ ] ([ ]) percent of interest accruing but unpaid on theprincipal balance of the loan (including, if applicable, interest atthe ([ ]) of Lender Expenses. All payments (whetherby regularmonthly installments, prepayments, foreclosure proceeds and/orrecoveries from other Guarantors) made on the Loan shall becredited, to the extent of the amount thereof, in the followingmanner:

(i) first, to the payment of the portion of the Lender Expensesas to which Guarantor is personally liable;

(ii) Second, to the payment of that portion of the LenderExpenses as to which Guarantor is not personally liable;

(iii) third, to that portion of accrued but, unpaid interest: as towhich Guarantor is personally liable;

(iv) fourth, to that portion of accrued but unpaid interest as towhich Guarantor is not personally liable;

(v) fifth. to that portion of the principal balance of. the Loan asto which Guarantor is Personally liable; and

(vi) sixth, to that portion of the principal balance of the Loan asto which Guarantor is not personally liable.

Top guaranties have significant issues relating to when and how the formula of "top percentage"should be applied

(a) Whether regular payments, prepayments, foreclosure grossproceeds, recoveries from sources other than borrower(such as other guarantors or credit enhancers);

41 Where a guaranty provided that it 'shall be reduced to the extent ofany principal paydown on the Obligations'and does not specify that the paydown need be made by the principal obligor nor does it limit the paydown tomoneys paid in the ordinary course of monthly installments, the Lender was obligated to credit foreclosure proceedsagainst the principal of the debt. Further, a guaranty applied to the first dollars recovered of the debt so that if theforeclosure proceeds exceeded that amount, the guaranty was extinguished. Bank E. v. Michalenoick, 1994 N.H.LEXIS 31 (N.. 1994)

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(b) Whether the top percentage is determined on loan closingdate, default date, foreclosure date or judgment date.

(c) Whether it guaranties only principal or also late charges,default interest, and/or collection fees.

3.23. Upstream Guaranty. A guaranty by an entity of its owner's (parent's) debt. Therisks are: no consideration, if guarantor is made insolvent by payment on the guaranty, it may besubject to set-aside; could be deemed dividend to Obligor at time ofpayment.

3.24. Warranty. A guaranty which some believe is absolute, unconditional andprimary, permitting the related contract, if any, to be voided; as compared to a guaranty which isconditioned upon performance of a related contract, and for which liability arises only if theobligor fails to perform.

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ATTACHMENT A

Cited Sections from Revised uee §3-605

(c) Agreement to extension of due date.-If a person entitled to enforce an instrumentagrees, with or without consideration, to an extension of the due date of the obligation ofa party to pay the instrument, the extension discharges an endorser or accommodationparty having a right of recourse against the party whose obligation is extended to theextent the endorser or accommodation party proves that the extension caused loss to theendorser or accommodation party with respect to the right of recourse.

(d) Agreement to material modification.-If a person entitled to enforce an instrumentagrees,with or without consideration, to a material modification of the obligation of aparty other than an extension of the due date, the modification discharges the obligationof an endorser or accommodation party having a right ofrecourse against the personwhose obligation is modified to the extent the modification causes loss to the endorser oraccommodation party with respect to the right of recourse. The loss suffered by theendorser or accommodation party as a result of the modification is equal to the amount of .the right of recourse unless the person enforcing the instrument proves that no loss wascaused by the modification or that the loss cause by the modification was an amount lessthan the amount of the right of recourse.

(e) Impairment of collateral; discharge of endorser or accommodation party.-Iftheobligation of a party to pay an instrument is secured by an interest in collateral and aperson entitled to enforce the instrument impairs the value of the interest in collateral, theobligation ofan endorser or accommodation party having a right of recourse against theobligor is discharged to the extent of the impairment. The value of an interest incollateral is impaired to the extent the (i) value of the interest is reduced to an amountless than the amount of the right of recourse of the party asserting discharge or (ii) thereduction in value of the interest causes an increase in the amount by which the amountof the right of recourse exceeds the value of the interest. The burden ofprovingimpairment is on the party asserting discharge.

(f) Impairment of collateral; discharge of party jointly and severally liable.-Iftheobligation of a party is secured by an interest in collateral not provided by anaccommodation party and a person entitled to enforce the instrument impairs the value ofthe interest in collateral, the obligation of any party who is jointly and severally liablewith respect to the secured obligation is discharged to the extent the impairment causesthe party asserting discharge to pay more than that party would have been obliged to pay,taking into account rights of contribution, if impairment had not occurred. If the partyasserting discharge is an accommodation party not entitled to discharge under subsection(e), the party is deemed to have a right to contribution based on joint and several liabilityrather than a right to reimbursement. The burden of proving impairment is on the partyasserting discharge.

(g) Other limitations on discharge.-A party is not discharged under this section if:

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(i) The party asserting discharge consents to the event or conduct that is the basis ofthe discharge; or

(ii) The instrument or a separate agreement of the party provides for waiver ofdischarge under this section either specifically or by general language indicating that partieswaive defenses based on suretyship or impairment of collateral.

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ATTACHMENT B

Cited Sections from Restatement of Suretyship

§43. Delay in Enforcement; Running of Statute of Limitations on UnderlyingObligation.

Notwithstanding §50, if the obligee fails to institute action against the secondary obligoron the secondary obligation until after the obligee's action against the principal obligor on theunderlying obligation is barred by the running of the statute of limitations as to that action, thesecondary obligor's rights and duties with respect to the principal obligor and the obligee are thesame as if, on the day that the statute of limitations expired, the obligee had released theprincipal obligor from its duties pursuant to the underlying obligation without preserving thesecondary obligor's recourse against the principal obligor. Accordingly, the principal obligor isdischarged from duties to the secondary obligor as provided in §39(a), and the secondary obligoris discharged from duties to the obligee as provided in §39(c)(ii) and §39(c)(iii).

§44. Other Impairment of Recourse.

If otherwise than described in §§39-43, the obligee impairs the principal obligor's duty ofperformance (§21), the principal obligor's duty to reimburse (§§22-25), or the secondaryobligor's right of restitution (§26) or subrogation (§§27-31), the secondary obligor is dischargedfrom its duties pursuant to the secondary obligation to the extent that such impairment wouldotherwise cause the secondary obligor a loss.

§48. Waiver of Suretyship Defenses; Consent.

(1) The secondary obligation is not discharged under §39(c)(ii)-(iii), §40(b),§41(b)(ii), §42(1), §43, or §44 to the extent that, in the contract creating the secondary obligationor otherwise, the secondary obligor consents to acts that would otherwise be the basis of thedischarge, agrees that such discharges are unavailable to the secondary obligor, or waives suchdischarges. Consent may be express or implied from the circumstances. Such consent,agreement, or waiver, if express, may be effectuated by specific language or by general languageindicating that the secondary obligor waives defenses based on suretyship.

(2) Unless the circumstances indicate otherwise, when the secondary obligor eithercontrols the principal obligor or deals with the obligee on behalf of the principal obligor, consentby the principal obligor to an act that would lead to discharge under §37 constitutes consent tothat act by the secondary obligor.

§49. Burden of Persuasion with Respect to Impairment of Recourse.

(2) Except as provided in subsection (3), the burden ofpersuasion with respect to lossor prejudice caused by an obligee's act impairing the secondary obligor's recourse against theprincipal obligor is allocated as follows:

(b) The burden of persuasion is on the secondary obligor if:

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(i) The secondary obligor is in the business of entering into secondaryobligations, received a business benefit for entering into thesecondary obligation, or otherwise was induced to enter into thesecondary obligation by separate consideration that directlybenefits the secondary obligor; or

(ii) The act impairing recourse is a modification of the underlyingobligation, unless the secondary obligor establishes that the

.modification is material;

(a) Otherwise, it is presumed that the act impairing recourse caused a loss orimpairment equal to the secondary obligor's liability pursuant to the secondary obligation

. and the.burden of persuasion as to the nonexistence or lesser amount of such loss is onthe obligee.

(3) Notwithstanding subsection (2)(a), if:

(a) The secondary obligor demonstrates prejudice caused by the impairmentof recourse; and

(b) The circumstances ofthe case indicate that the amount ofloss is notreasonably susceptible of calculation or requires proof of facts that are not ascertainable,

it is presumed that the act impairing recourse caused a loss or impairment equal to thesecondary obligor's liability pursuant to the secondary obligation, and the burden ofpersuasionas to any lesser amount of such loss is on the obligee.

§50. Effect on Secondary Obligation of Obligee's Lack of Action to EnforceUnderlying Obligation.

(1) Delay by the obligee in taking action against the principal obligor with respect tothe underlying obligation, or failure of the obligee to take such action, does not discharge thesecondary obligor with respect to the secondary obligation except as provided:

(a) By applicable statute;

(b) By agreement of the parties;

(c) in Section 43 of this Restatement; or

(d) In Subsection (2) of this section.

(2) If the failure of efforts by the obligee to obtain satisfaction of the underlyingobligation is a condition of the secondary obligor's duty under the secondary obligation, thesecondary obligor is discharged to the extent that the obligee's failure to act with reasonablepromptness against the principal obligor is the cause of the obligee's inability to collect from theprincipal obligor.

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ATTACHMENT C

SELECTED BIBLIOGRAPHY [reorganize later]

• Barron's Dictionary of Finance and Investment Terms, Sixth Edition

• Philip D. Weller, "Credit Enhancement: Guaranty Agreements" 5 The ACREL Papers 93(1993)

• Peterson, Tarnower and Waters, "Enforcing Commercial Real Estate Guaranties" GeorgiaBar Journal, October 2009, Volume 15, Number 2

II William Barnett, "Limited Guarantees: Variations, Limitations and Lamentations" TheBanking Law Journal, May-June 1987

II Steiner and Samton, "Bankruptcy of a Co-Lender or Subordinate Lender", N.Y.LJ. 5, (col.2) 9/16/09

II Kenneth L. Samuelson, Esq., Linowes and Blocher, Washington, D.C. "The Risks That aMaster Lease Will be Recharacterized And Treated For Various Purposes, As A Guaranty;Consequences of Such Recharacterization" (Date and publication information.not available.Circa 1988.)

• Thom~s Hanahan, "Reconsidering Completion. Guaranties", The Practical Real EstateLawyer, Volume 25, Number 5, page 21, September 2009.

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