Exhibit 10.34


 


GUARANTEE

of

GMAC COMMERCIAL HOLDING CORP.


 


GMACCM
ASSET-BACKED NO. 2 LIMITED (the “Borrower”), IXIS CORPORATE &
INVESTMENT BANK, LONDON BRANCH in its capacity as Original Lender
(in that capacity, the “Original Lender”)  and as agent for the Lenders (in that
capacity, the “Agent”) and THE BANK OF NEW YORK in its capacity as
Security Trustee (the “Security Trustee”)  are, party, amongst others, to that
certain revolving credit agreement dated on or following 31 May 2005 (as
amended from time to time, the “Revolving
Credit Agreement”). To
induce the Agent, the Original Lender, the Security Trustee and the other
Finance Parties (as defined in the Revolving Credit Agreement) to enter into
die Finance Documents, as amended from time to time, (as defined in the
Revolving Credit Agreement), GMAC Commercial Holding Corp., a Nevada
corporation, (the “Guarantor”)  hereby unconditionally and irrevocably
guarantees to each Finance Party all monetary obligations (the “Obligations”) of the Borrower, the Swap Counterparty,
the Servicer and the Special Servicer (together the “Guaranteed Parties”  and
each a “Guaranteed Party”)  pursuant to the Finance Documents (as
applicable). The Guarantor also guarantees to each Finance Party the payment of
any court costs and reasonable attorneys’ fees each Finance Party may incur in
attempting to collect said Obligations from the Guarantor or protect, enforce
or attempt to enforce this Guarantee.


 


The Security
Trustee on behalf of the Finance Parties may make one or more demands from time
to time under this Guarantee by written notice to the Guarantor at 200 Winner
Road, Horsham, PA 19044, USA, Attention: Chief Financial Officer (copy to the
General Counsel at the same address) such notice to specify (a) the nature
of the non-performance of an Obligation giving rise to such demand, (b) the
amount and currency of such demand, and (c) the account to which such
amount should be paid. All sums that the Guarantor shall be bound to pay
hereunder shall be paid by wire transfer of immediately available funds in the
currency and to the account of the Security Trustee for disbursement to the
Finance Parties specified in such notice within 2 Business Days after the
Guarantor’s receipt of such demand. Each notice of demand shall be accompanied
by an U.S. Internal Revenue Service Form W-8 or a successor form (or by
other appropriate certification prescribed by U.S. Treasury regulations)
(collectively, the “Required Tax  Form”) duly
completed by the relevant Finance Parties establishing eligibility for a
complete exemption from U.S. withholding taxes in respect of payments to be
made by the Guarantor hereunder, except to the extent of any U.S. withholding
taxes imposed as a result of a change in law, regulation or applicable tax
treaty following the date hereof.


 


This Guarantee
shall be continuing and irrevocable until each Guaranteed Party has performed
all of its Obligations, at which time this Guarantee shall automatically
terminate and expire.


 


This is a
guarantee of payment and not of collectibility. The Guarantor declares that the
Guarantor shall not be released from its obligation hereunder by any extension
of time for the payment of such Obligations, by any modification of the terms
of such Obligations or by any forbearance whatsoever as to time, performance or
otherwise.


 


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The Guarantor
hereby waives notice of any loan or advance subject to this Guarantee, notice
of acceptance of this Guarantee, promptness, diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of any Guaranteed Party, any right to require a proceeding first against any
Guaranteed Party or any collateral securing the Obligations, protest, notice
and all demands whatsoever and covenants that this Guarantee will not be
discharged, except by complete performance of the obligations contained in this
Guarantee. No invalidity, irregularity or unenforceability of the Obligations
shall affect, impair or be a defense to this Guarantee.


 


The Guarantor
represents and warrants that it is giving this Guarantee in connection only
with its corporate relationship with the Guaranteed Parties and not as part of
any guarantee, surety or insurance business and has not received and will not receive
any fee, other consideration or security in return for the issuance of this
Guarantee.


 


This Guarantee is
unsecured and ranks pari passu with
all other unsecured and unsubordinated obligations of the Guarantor.


 


All payments and
distributions made hereunder by one party (a “payor”)
to another party (a “recipient”)
shall be made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes or any other taxes, fees, duties or
withholdings or other charges of any nature whatsoever imposed by any taxing
authority (“Taxes”). In the event
that any withholding or deduction from any payment made by a payor hereunder is
required in respect of any Taxes, then such payor shall (a) pay directly
to the relevant authority the full amount required to be so withheld or
deducted; (b) promptly forward to the recipient an official receipt or
other documentation satisfactory to the recipient evidencing such payment to
such authority; and (c) if such withholding or deduction is required as
the result of any change in law or any change in interpretation thereof
occurring after the date hereof, and except in respect of withholding taxes
required by virtue of the Agent’s failure to deliver the Required Tax Form prior
to the Guarantor’s payment of any demand made pursuant hereto, pay to the
recipient such additional amount or amounts as is necessary to ensure that the
net amount actually received by the recipient will equal the full amount such
recipient would have received had no such withholding or deduction been
required.


 


THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK. THE GUARANTOR HEREBY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTEE,
AND HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. THE GUARANTOR HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE,


 


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WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF,
CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN
CONNECTION WITH THIS GUARANTEE. THE GUARANTOR SHALL AT ALL TIMES MAINTAIN AN
AGENT FOR SERVICE OF PROCESS IN NEW YORK CITY.


 


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IN WITNESS
WHEREOF, GMAC COMMERCIAL HOLDING CORP. has caused this Guarantee to be duly
executed this        day of May, 2005.


 


	
   

  	
   

  	
  GMAC COMMERCIAL HOLDING
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John F. Weaver

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John F. Weaver

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President

  
						



 


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