FIFTEEN (15) DAYS AFTER
WRITTEN DEMAND FROM LENDER, FAIL TO DILIGENTLY UNDERTAKE THE PERFORMANCE OF THE
GUARANTEED OBLIGATIONS, THEN LENDER SHALL HAVE THE RIGHT, AT ITS OPTION, EITHER
BEFORE, DURING OR AFTER COMMENCING FORECLOSURE OR SALE PROCEEDINGS AGAINST ALL
OR ANY PORTION OF THE PROPERTY, AS THE CASE MAY BE, AND BEFORE, DURING OR AFTER
PURSUING ANY OTHER RIGHT OR REMEDY AGAINST BORROWER OR GUARANTOR, TO PERFORM ANY
AND ALL OF THE GUARANTEED WORK BY OR THROUGH ANY AGENT, CONTRACTOR OR
SUBCONTRACTOR OF ITS SELECTION, AND PURSUANT TO CONTRACTS OR SUBCONTRACTS
RELATING THERETO, ALL AS LENDER IN ITS SOLE DISCRETION DEEMS PROPER.
FURTHERMORE, LENDER SHALL HAVE NO OBLIGATION TO PROTECT OR INSURE ANY COLLATERAL
FOR THE LOAN, NOR SHALL LENDER HAVE ANY OBLIGATION TO PERFECT ITS SECURITY
INTEREST IN ANY COLLATERAL FOR THE LOAN.
DURING THE COURSE OF ANY OF THE
GUARANTEED WORK UNDERTAKEN BY LENDER OR ANY OTHER PARTY ON BEHALF OF LENDER,
GUARANTORS SHALL PAY ON DEMAND ANY AMOUNTS DUE TO CONTRACTORS, SUBCONTRACTORS
AND MATERIAL SUPPLIERS AND FOR PERMITS AND LICENSES NECESSARY OR DESIRABLE IN
CONNECTION THEREWITH.
GUARANTORS' OBLIGATIONS IN CONNECTION WITH ANY OF THE
GUARANTEED WORK UNDERTAKEN BY LENDER OR ANY OTHER PARTY ON BEHALF OF LENDER
SHALL NOT BE AFFECTED BY ANY ERRORS OR OMISSIONS OF BORROWERS' GENERAL
CONTRACTOR OR ARCHITECT, LENDER'S CONSULTING ARCHITECT, OR ANY SUBCONTRACTOR OR
AGENT OR EMPLOYEE OF ANY OF THE FOREGOING IN THE DESIGN, SUPERVISION AND/OR
PERFORMANCE OF THE WORK, IT BEING UNDERSTOOD THAT SUCH RISK IS ASSUMED BY
GUARANTORS.
(D)
SATISFACTION BY GUARANTORS OF ANY LIABILITY HEREUNDER AT
ANY ONE TIME WITH RESPECT TO ANY DEFAULT BY ANY BORROWER SHALL NOT DISCHARGE
GUARANTORS WITH RESPECT TO ANY OTHER DEFAULT BY ANY BORROWER AT ANY OTHER TIME,
IT BEING THE INTENT HEREOF THAT THIS GUARANTY AND THE OBLIGATIONS OF GUARANTORS
HEREUNDER SHALL BE CONTINUING AND MAY BE ENFORCED BY LENDER TO THE END THAT THE
GUARANTEED WORK SHALL BE TIMELY COMPLETED, LIEN FREE, WITHOUT LOSS, COST,
EXPENSE, INJURY OR LIABILITY OF ANY KIND TO LENDER, SUBJECT TO THE EXPRESS TERMS
HEREOF.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL OF THE REMEDIES SET
FORTH HEREIN AND/OR PROVIDED FOR IN ANY OF THE LOAN DOCUMENTS OR AT LAW OR
EQUITY SHALL BE EQUALLY AVAILABLE TO LENDER, AND THE CHOICE BY LENDER OF ONE
SUCH ALTERNATIVE OVER ANOTHER SHALL NOT BE SUBJECT TO QUESTION OR CHALLENGE BY
GUARANTOR OR ANY OTHER PERSON, NOR SHALL ANY SUCH CHOICE BE ASSERTED AS A
DEFENSE, SETOFF, OR FAILURE TO MITIGATE DAMAGES IN ANY ACTION, PROCEEDING, OR
COUNTERACTION BY LENDER TO RECOVER OR SEEKING ANY OTHER REMEDY UNDER THIS
GUARANTY, NOR SHALL SUCH CHOICE PRECLUDE LENDER FROM SUBSEQUENTLY ELECTING TO
EXERCISE A DIFFERENT REMEDY.
THE PARTIES HAVE AGREED TO THE ALTERNATIVE
REMEDIES PROVIDED HEREIN IN PART BECAUSE THEY RECOGNIZE THAT THE CHOICE OF
REMEDIES IN THE EVENT OF A DEFAULT HEREUNDER WILL NECESSARILY BE AND SHOULD
PROPERLY BE A MATTER OF GOOD FAITH BUSINESS JUDGMENT, WHICH THE PASSAGE OF TIME
AND EVENTS MAY OR MAY NOT PROVE