NEITHER LENDER
NOR ITS AGENTS SHALL BE LIABLE FOR ANY MONETARY DAMAGES, AND BORROWER'S SOLE
REMEDIES SHALL BE LIMITED TO COMMENCING AN ACTION SEEKING INJUNCTIVE RELIEF OR
DECLARATORY JUDGMENT. THE PARTIES HERETO AGREE THAT ANY ACTION OR PROCEEDING TO
DETERMINE WHETHER LENDER HAS ACTED REASONABLY SHALL BE DETERMINED BY AN ACTION
SEEKING DECLARATORY JUDGMENT.
SECTION 10.13.
EXPENSES; INDEMNITY.
(A)
BORROWER COVENANTS AND AGREES TO PAY OR, IF
BORROWER FAILS TO PAY, TO REIMBURSE, LENDER UPON RECEIPT OF WRITTEN NOTICE FROM
LENDER FOR ALL REASONABLE COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
FEES AND DISBURSEMENTS) INCURRED BY LENDER IN CONNECTION WITH (I) THE
PREPARATION, NEGOTIATION, EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY AND ALL THE COSTS OF FURNISHING ALL OPINIONS BY COUNSEL FOR BORROWER
(INCLUDING WITHOUT LIMITATION ANY OPINIONS REQUESTED BY LENDER AS TO ANY LEGAL
MATTERS ARISING UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS WITH RESPECT TO
THE PROPERTY); (II) BORROWER'S ONGOING PERFORMANCE OF AND COMPLIANCE WITH
BORROWER'S RESPECTIVE AGREEMENTS AND COVENANTS CONTAINED IN THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS ON ITS PART TO BE PERFORMED OR COMPLIED WITH AFTER THE
CLOSING DATE, INCLUDING, WITHOUT LIMITATION, CONFIRMING COMPLIANCE WITH
ENVIRONMENTAL AND INSURANCE REQUIREMENTS; (III) LENDER'S ONGOING PERFORMANCE AND
COMPLIANCE WITH ALL AGREEMENTS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS ON ITS PART TO BE PERFORMED OR COMPLIED WITH AFTER THE
CLOSING DATE; (IV) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE
NEGOTIATION, PREPARATION, EXECUTION, DELIVERY AND ADMINISTRATION OF ANY
CONSENTS, AMENDMENTS, WAIVERS OR OTHER MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS AND ANY OTHER DOCUMENTS OR MATTERS REASONABLY REQUESTED BY
LENDER; (V) SECURING BORROWER'S
79
COMPLIANCE WITH ANY REQUESTS MADE PURSUANT TO THE PROVISIONS OF THIS AGREEMENT;
(VI) THE FILING AND RECORDING FEES AND EXPENSES, TITLE INSURANCE AND REASONABLE
FEES AND EXPENSES OF COUNSEL FOR PROVIDING TO LENDER ALL REQUIRED LEGAL
OPINIONS, AND OTHER SIMILAR EXPENSES INCURRED IN CREATING AND PERFECTING THE
LIENS IN FAVOR OF LENDER PURSUANT TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; (VII) ENFORCING OR PRESERVING ANY RIGHTS, IN RESPONSE TO THIRD PARTY
CLAIMS OR THE PROSECUTING OR DEFENDING OF ANY ACTION OR PROCEEDING OR OTHER
LITIGATION, IN EACH CASE AGAINST, UNDER OR AFFECTING BORROWER, THIS AGREEMENT,
THE OTHER LOAN DOCUMENTS, THE PROPERTY, OR ANY OTHER SECURITY GIVEN FOR THE
LOAN; AND (VIII) ENFORCING ANY OBLIGATIONS OF OR COLLECTING ANY PAYMENTS DUE
FROM BORROWER UNDER THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR WITH RESPECT TO
THE PROPERTY OR IN CONNECTION WITH ANY REFINANCING OR RESTRUCTURING OF THE
CREDIT ARRANGEMENTS PROVIDED UNDER THIS AGREEMENT IN THE NATURE OF A "WORK-OUT"
OR OF ANY INSOLVENCY OR BANKRUPTCY PROCEEDINGS; PROVIDED, HOWEVER, THAT BORROWER
SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY SUCH COSTS AND EXPENSES TO THE EXTENT
THE SAME ARISE BY REASON OF THE GROSS NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL
MISCONDUCT OF LENDER.
(B)
BORROWER SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS LENDER FROM AND