SURETY.
1.2.
LIMITATION ON LIABILITY.
AS USED HEREIN, THE TERM "GUARANTEED
OBLIGATIONS" MEANS ALL THE OBLIGATIONS AND LIABILITIES OF BORROWER UNDER
SECTIONS 9.4(B) AND (C) OF THE LOAN AGREEMENT.
THE LIABILITY OF GUARANTOR
HEREUNDER SHALL BE LIMITED TO GUARANTEED OBLIGATIONS THAT ARISE FROM (I) EVENTS,
ACTS, OR CIRCUMSTANCES THAT ARE ACTUALLY COMMITTED BY, OR VOLUNTARILY OR
WILLFULLY BROUGHT ABOUT BY GUARANTOR, TO THE FULL EXTENT OF SUCH GUARANTEED
OBLIGATIONS; OR (II) EVENTS, ACTS, OR CIRCUMSTANCES (REGARDLESS OF THE CAUSE OF
SAME) THAT PROVIDE ACTUAL BENEFIT (IN CASH, CASH EQUIVALENT, OR OTHER
QUANTIFIABLE AMOUNT) TO GUARANTOR, TO THE FULL EXTENT OF THE ACTUAL BENEFIT
RECEIVED BY GUARANTOR; PROVIDED, HOWEVER, THAT GUARANTOR SHALL HAVE NO LIABILITY
HEREUNDER WITH RESPECT TO THE GUARANTEED OBLIGATIONS ARISING UNDER SECTION
9.4(C)(II)(A) OF THE LOAN AGREEMENT TO THE EXTENT THE SAME ARISE AS A RESULT OF
ANY OF THE THEREIN DESCRIBED EVENTS OCCURRING AFTER GUARANTOR'S RESIGNATION AS A
MEMBER OF THE BOARD OF MANAGERS OF MEZZCO AND OPBIZ AND AS A MANAGER OF BH/RE.
NOTWITHSTANDING ANY LIMITATION ON LIABILITY CONTAINED HEREIN, NO LIMIT SHALL
APPLY TO ANY ENFORCEMENT COSTS (AS DEFINED BELOW).
NOTWITHSTANDING THE
FOREGOING, DURING ANY PERIOD IN WHICH BORROWER OBTAINS AND MAINTAINS
ENVIRONMENTAL INSURANCE FOR THE PROPERTY WHICH HAS A TERM OF NOT LESS THAN FIVE
(5) YEARS FROM THE DATE HEREOF AND A TWO (2) YEAR TAIL COVERAGE IN AMOUNTS NOT
LESS THAN $50,000,000 FOR THIRD PARTY LIABILITY AND $25,000,000 FOR FIRST PARTY
CLEAN-UP COVERAGE FROM A CARRIER WITH NOT LESS THAN AN "A" RATING AND OTHERWISE
ACCEPTABLE TO LENDER IN ITS REASONABLE DISCRETION, INCLUDING, WITHOUT
LIMITATION, NAMING LENDER AS AN ADDITIONAL INSURED THEREUNDER, AND SUCH
ENVIRONMENTAL INSURANCE POLICY IS IN FULL FORCE AND EFFECT, THEN DURING SUCH
PERIOD GUARANTOR SHALL HAVE NO OBLIGATIONS OR LIABILITY TO LENDER HEREUNDER WITH
RESPECT TO BORROWER'S FAILURE TO COMPLY WITH SECTION 9.4(B)(III) OF THE LOAN
AGREEMENT.
FOR THE PURPOSES HEREOF, LENDER HEREBY ACKNOWLEDGES AND CONFIRMS
THAT: (I) THAT CERTAIN PRIMARY ENVIRONMENTAL SITE LIABILITY POLICY, POLICY #
37310075, ISSUED BY CHUBB CUSTOM INSURANCE COMPANY, AND (II) THAT CERTAIN EXCESS
ENVIRONMENTAL LIABILITY POLICY, POLICY # PLS 2104680, ISSUED BY AMERICAN
INTERNATIONAL SPECIALTY (COLLECTIVELY, THE "ENVIRONMENTAL POLICIES") WERE
DELIVERED TO LENDER AND ARE IN EFFECT ON THE DATE HEREOF AND ARE ACCEPTABLE TO
LENDER SO LONG AS EACH OF THE ENVIRONMENTAL POLICIES REMAINS IN FULL FORCE AND
EFFECT.
NOTWITHSTANDING THE FOREGOING, IT IS HEREBY EXPRESSLY AGREED THAT THE
OBTAINING AND MAINTAINING OF ANY SUCH ENVIRONMENTAL INSURANCE FOR THE PROPERTY
SHALL NOT IN ANY WAY REDUCE, AMEND, MODIFY OR OTHERWISE AFFECT ANY OF THE
OBLIGATIONS AND LIABILITIES OF BORROWER UNDER ANY OF THE
LOAN DOCUMENTS.
1.3.
NATURE OF GUARANTY.
THIS GUARANTY IS AN IRREVOCABLE, ABSOLUTE,
CONTINUING GUARANTY OF PAYMENT AND NOT A GUARANTY OF COLLECTION.
THIS GUARANTY
MAY NOT BE REVOKED BY GUARANTOR AND SHALL CONTINUE TO BE EFFECTIVE WITH RESPECT
TO ANY GUARANTEED OBLIGATIONS ARISING OR CREATED AFTER ANY ATTEMPTED REVOCATION
BY GUARANTOR AND AFTER (IF GUARANTOR IS A NATURAL PERSON) GUARANTOR'S DEATH (IN
WHICH EVENT THIS GUARANTY SHALL BE