Borrower, and for
other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the parties do hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1.
GUARANTY OF OBLIGATION.
SUBJECT TO SECTION 1.2, GUARANTOR HEREBY
IRREVOCABLY, ABSOLUTELY AND UNCONDITIONALLY GUARANTEES TO LENDER AND ITS
SUCCESSORS AND ASSIGNS THE PAYMENT AND PERFORMANCE OF THE GUARANTEED OBLIGATIONS
AS AND WHEN THE SAME SHALL BE DUE AND PAYABLE, WHETHER BY LAPSE OF TIME, BY
ACCELERATION OF MATURITY OR OTHERWISE.
GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY COVENANTS AND AGREES THAT IT IS LIABLE FOR THE GUARANTEED
OBLIGATIONS AS A PRIMARY OBLIGOR AND NOT MERELY AS A SURETY.
1.2.
MAXIMUM AGGREGATE 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 MAXIMUM AGGREGATE LIABILITY
WITH RESPECT TO THE GUARANTEED OBLIGATIONS (OTHER THAN THE OBLIGATIONS AND
LIABILITIES OF BORROWER UNDER SECTION 9.4(B)(IX) OR SECTION 9.4(C)(II)(A) OF THE
LOAN AGREEMENT) AND OTHER THAN ENFORCEMENT COSTS (AS DEFINED BELOW) SHALL NOT
EXCEED (A) $15 MILLION FOR EACH INDIVIDUAL BH GUARANTOR AND (B) $30 MILLION IN
THE AGGREGATE FOR ALL GUARANTORS; PROVIDED THAT, WITH RESPECT TO EACH BH
GUARANTOR, THE FOREGOING RESTRICTIONS ON LIABILITY SHALL NOT APPLY TO ANY
GUARANTEED OBLIGATIONS THAT ARISE FROM (I) EVENTS, ACTS, OR CIRCUMSTANCES THAT
ARE ACTUALLY COMMITTED BY, OR VOLUNTARILY OR WILLFULLY BROUGHT ABOUT BY SUCH BH
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 SUCH BH
GUARANTOR, TO THE FULL EXTENT OF THE ACTUAL BENEFIT RECEIVED BY SUCH BH
GUARANTOR.
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