"NOTE" SHALL MEAN "THE NOTE AND ANY OTHER
EVIDENCE OF INDEBTEDNESS SECURED BY THE LOAN DOCUMENTS," THE WORD "PROPERTY"
SHALL INCLUDE ANY PORTION OF THE PROPERTY AND ANY INTEREST THEREIN, AND THE
PHRASES "ATTORNEYS' FEES", "LEGAL FEES" AND "COUNSEL FEES" SHALL INCLUDE ANY AND
ALL REASONABLE THIRD PARTY ATTORNEYS', PARALEGAL, LEGAL ASSISTANT AND LAW CLERK
FEES AND DISBURSEMENTS, AND INCLUDING, BUT NOT LIMITED TO, FEES AND
DISBURSEMENTS AT THE PRE-TRIAL, TRIAL AND APPELLATE LEVELS INCURRED OR PAID BY
LENDER IN PROTECTING ITS INTEREST IN THE PROPERTY, THE LEASES AND THE RENTS AND
ENFORCING ITS RIGHTS HEREUNDER. WHEREVER PURSUANT TO THIS GUARANTY IT IS
PROVIDED THAT GUARANTOR SHALL PAY ANY COSTS AND EXPENSES, SUCH COSTS AND
EXPENSES SHALL INCLUDE, BUT NOT BE LIMITED TO, LEGAL FEES AS DEFINED ABOVE.
WHENEVER THE CONTEXT MAY REQUIRE, ANY PRONOUNS USED HEREIN SHALL INCLUDE THE
CORRESPONDING MASCULINE, FEMININE OR NEUTER FORMS, AND THE SINGULAR FORM OF
NOUNS AND PRONOUNS SHALL INCLUDE THE PLURAL AND VICE VERSA.
ALL REFERENCES TO
SECTIONS, SUBSECTIONS, PARAGRAPHS, SCHEDULES AND EXHIBITS ARE TO SECTIONS,
SUBSECTIONS, PARAGRAPHS, SCHEDULES AND EXHIBITS IN OR TO THIS GUARANTY UNLESS
OTHERWISE SPECIFIED.
THE SCHEDULES AND EXHIBITS ANNEXED HERETO ARE HEREBY
INCORPORATED HEREIN AS A PART OF THIS GUARANTY WITH THE SAME FORCE AND EFFECT AS
IF SET FORTH IN THE BODY HEREOF. THE HEADINGS AND CAPTIONS OF VARIOUS ARTICLES
AND SECTIONS OF THIS GUARANTY ARE FOR CONVENIENCE OF REFERENCE ONLY AND ARE NOT
TO BE CONSTRUED AS DEFINING OR LIMITING, IN ANY WAY, THE SCOPE OR INTENT OF THE
PROVISIONS HEREOF.
UNLESS OTHERWISE SPECIFIED, THE WORDS "HEREOF", "HEREIN" AND
"HEREUNDER" AND WORDS OF SIMILAR IMPORT WHEN USED IN THIS GUARANTY SHALL REFER
TO THIS GUARANTY AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS
GUARANTY.
THE WORDS "INCLUDES", "INCLUDING" AND SIMILAR TERMS SHALL BE
CONSTRUED AS IF FOLLOWED BY THE WORDS "WITHOUT LIMITATION". WHENEVER IN THIS
GUARANTY ANY CONSENT, APPROVAL, DETERMINATION OR DECISION OF LENDER IS TO BE
MADE BY LENDER, OR ANY MATTER IS TO BE SATISFACTORY TO LENDER, THEN UNLESS
EXPRESSLY PROVIDED TO THE CONTRARY, SUCH PROVISION SHALL BE DEEMED TO MEAN THAT
SUCH CONSENT, APPROVAL, DETERMINATION OR DECISION OF LENDER OR DETERMINATION
WHETHER A MATTER IS SATISFACTORY SHALL BE MADE BY LENDER IN ITS SOLE AND
ABSOLUTE DISCRETION FOR ANY OR NO REASON AND SHALL BE FINAL AND CONCLUSIVE.
IN
THE EVENT THAT A CLAIM OR ADJUDICATION IS MADE THAT LENDER OR ITS AGENTS HAVE
ACTED UNREASONABLY OR UNREASONABLY DELAYED (OR REFRAINED FROM) ACTING IN ANY
CASE WHERE, BY LAW OR UNDER THIS GUARANTY OR THE OTHER LOAN DOCUMENTS, LENDER OR
SUCH AGENT, AS THE CASE MAY BE, HAS AN OBLIGATION TO ACT REASONABLY OR PROMPTLY,
NEITHER LENDER NOR ITS AGENTS SHALL BE LIABLE FOR ANY MONETARY DAMAGES, AND
15
GUARANTOR'S AND/OR BORROWER'S SOLE REMEDY SHALL BE LIMITED TO COMMENCING AN
ACTION SEEKING INJUNCTIVE RELIEF OR DECLARATORY JUDGMENT.
ANY ACTION OR
PROCEEDING TO DETERMINE WHETHER LENDER HAS ACTED REASONABLY SHALL BE DETERMINED
BY AN ACTION SEEKING DECLARATORY JUDGMENT.
ANY REFERENCE