agent, as the
case may be, has an obligation to act reasonably or promptly, Borrower agrees
that 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 WITHIN FIFTEEN (15) DAYS OF 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
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 REQUESTED BY LENDER;
(II) SECURING BORROWER'S COMPLIANCE WITH ANY REQUESTS MADE PURSUANT TO THE
PROVISIONS OF THIS AGREEMENT; (VI) THE FILING AND RECORDING FEES AND EXPENSES,
COST OF 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; (III) 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 PROPERTIES, OR
ANY OTHER SECURITY GIVEN FOR THE LOAN; AND (IV) ENFORCING ANY OBLIGATIONS OF OR
COLLECTING ANY PAYMENTS DUE FROM BORROWER UNDER THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR WITH RESPECT TO THE PROPERTIES 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.
ANY
COST AND EXPENSES DUE AND PAYABLE TO LENDER MAY BE PAID FROM ANY AMOUNTS IN THE
LOCKBOX ACCOUNT.
(B)
BORROWER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER FROM AND
AGAINST ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND
OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL FOR LENDER IN CONNECTION WITH ANY INVESTIGATIVE,
ADMINISTRATIVE OR JUDICIAL PROCEEDING COMMENCED OR THREATENED, WHETHER OR NOT
LENDER SHALL BE DESIGNATED A PARTY THERETO), THAT ARE IMPOSED ON OR INCURRED BY
LENDER IN ANY MANNER RELATING TO OR ARISING
120
OUT OF (I) ANY BREACH BY BORROWER OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS, OR (II) THE USE OR INTENDED USE OF THE PROCEEDS OF THE
LOAN (COLLECTIVELY, THE "ADDITIONAL INDEMNIFIED