THAT LENDER MAY
SUFFER OR INCUR BY REASON THEREOF;
(C)
FULLY REIMBURSE LENDER FOR ANY AND ALL SUMS ACTUALLY EXPENDED BY
LENDER FOR OR TOWARD THE COMPLETION OF THE PROJECT (INCLUDING HARD COSTS AND
SOFT COSTS) IN EXCESS OF THE UNDISBURSED PRINCIPAL BALANCE OF THE LOAN IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE LOAN DOCUMENTS AS A RESULT OF
THE FAILURE BY BORROWER OR GUARANTOR TO PROSECUTE THE CONSTRUCTION DILIGENTLY
AND COMPLETE THE SAME ON OR BEFORE THE COMPLETION DATE; AND
(D)
FULLY INDEMNIFY, DEFEND AND HOLD LENDER HARMLESS FROM AND AGAINST
ANY AND ALL ACTUAL COSTS, CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES,
EXPENSES OR LOSSES OF WHATSOEVER KIND OR NATURE, INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEY'S FEES AND COURT COSTS, RESULTING OR ARISING FROM ANY
FAILURE BY BORROWER OR GUARANTOR (1)
TO PROSECUTE THE CONSTRUCTION OF THE
PROJECT PURSUANT TO THE LOAN AGREEMENT, OR (2) TO COMPLETE THE PROJECT ON OR
BEFORE THE COMPLETION DATE (COLLECTIVELY, "LOSSES").
The liabilities of Guarantor under this Section shall not be limited by the
amount of the Loan, but shall be determined solely by the cost of completion of
the Construction and the performance of the other undertakings set forth in this
Section.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL (I)
ML&P BE LIABLE FOR AN AMOUNT IN EXCESS OF FIFTY ONE PERCENT (51%) OF THE SUMS
DUE TO LENDER HEREUNDER, (II) RITZ-CARLTON BE LIABLE FOR AN AMOUNT IN EXCESS OF
THIRTY-FOUR PERCENT (34%) OF THE SUMS DUE TO LENDER HEREUNDER OR (III) EXCLUSIVE
RESORTS BE LIABLE FOR AN AMOUNT IN EXCESS OF FIFTEEN PERCENT (15%) OF THE SUMS
DUE TO LENDER HEREUNDER.
2.
IF GUARANTOR UNDERTAKES TO COMPLETE THE IMPROVEMENTS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 1(A) ABOVE, LENDER SHALL MAKE ADVANCES
TO GUARANTOR OF THE UNDISBURSED PORTION OF THE LOAN ALLOCATED TO THE COSTS OF
CONSTRUCTION, UPON GUARANTOR'S SATISFACTION OF THE CONDITIONS TO THE MAKING OF
ADVANCES SET FORTH IN THE LOAN AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE
CONDITION REQUIRING THAT THERE BE NO EVENT OF DEFAULT BY BORROWER) AND DELIVERY
OF A REQUISITION EXECUTED BY BORROWER AND GUARANTOR TO LENDER; PROVIDED,
HOWEVER, THAT AS A CONDITION TO MAKING AN ADVANCE TO GUARANTOR, GUARANTOR SHALL
NOT BE OBLIGATED TO CURE EVENTS OF DEFAULT OTHER THAN (A) MONETARY EVENTS OF
DEFAULT (PROVIDED THAT FAILURE TO PAY ANY AMOUNTS DUE AFTER AN ACCELERATION
SHALL NOT BE DEEMED A MONETARY EVENT OF DEFAULT FOR THIS PURPOSE), (B) EVENTS OF
DEFAULT SET FORTH IN CLAUSES 20.1(G), (H), (J), (K), (L), AND (M) OF THE LOAN
AGREEMENT, (C) DUE TO A GUARANTOR'S OR BORROWER'S FAILURE TO PROVIDE FINANCIAL
STATEMENTS IN ACCORDANCE WITH THE LOAN DOCUMENTS AND (D) DUE TO FRAUD.
GUARANTOR SHALL NOT BE OBLIGATED TO CONTINUE TO PURSUE COMPLETION OF THE
IMPROVEMENTS DURING ANY PERIOD THAT LENDER HAS STOPPED FUNDING ADVANCES OF THE
LOAN, PROVIDED HOWEVER THAT IN NO EVENT SHALL GUARANTOR'S LIABILITY UNDER THIS
GUARANTY BE DEEMED TERMINATED OR WAIVED UNTIL THIS GUARANTY HAS BEEN TERMINATED
IN ACCORDANCE WITH