UNDER, PURSUANT OR RELATED TO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS, (II) AS A RESULT OF LENDER'S EXERCISE OF (OR FAILURE TO
EXERCISE) ANY OF LENDER'S RIGHTS AND REMEDIES HEREUNDER OR UNDER THE OTHER LOAN
DOCUMENTS, INCLUDING (A) ANY SALE OR TRANSFER OF THE COLLATERAL, (B) THE
PRESERVATION, REPAIR, MAINTENANCE, PREPARATION FOR SALE OR SECURING OF ANY
COLLATERAL, (C) THE DEFENSE OF LENDER'S INTERESTS IN THE COLLATERAL (INCLUDING
THE DEFENSE OF CLAIMS BROUGHT BY THE BORROWERS (OR ANY OF THEM) AS A
DEBTOR-IN-POSSESSION OR OTHERWISE, ANY SECURED OR UNSECURED CREDITORS OF THE
BORROWERS (OR ANY OF THEM), OR ANY TRUSTEE OR RECEIVER IN BANKRUPTCY), AND
(D) RIGHTS, REMEDIES OR OBLIGATIONS UNDER THE BUSINESS ASSOCIATE AGREEMENT;
(III) AS A RESULT OF ANY ENVIRONMENTAL POLLUTION, HAZARDOUS MATERIAL OR
ENVIRONMENTAL CLEAN-UP AND THE BORROWERS' OFF-SITE DISPOSAL PRACTICES; (IV) IN
CONNECTION WITH ANY REGULATORY INVESTIGATION OR PROCEEDING BY ANY REGULATORY
AUTHORITY OR AGENCY HAVING JURISDICTION OVER THE BORROWERS (OR ANY OF THEM);
(V) OTHERWISE RELATING TO OR ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, OR ANY ACTION TAKEN (OR FAILURE TO
ACT) BY ANY INDEMNIFIED PARTY WITH RESPECT THERETO; (VI) ANY BORROWER'S BREACH,
OR ALLEGED BREACH, OR VIOLATION OF ANY REPRESENTATION, WARRANTY, COVENANT OR
UNDERTAKING CONTAINED IN THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, AND
(VII) ANY BORROWER'S FAILURE, OR ALLEGED FAILURE, TO COMPLY WITH ANY OR ALL
LAWS, STATUTES, ORDINANCES, GOVERNMENTAL RULES, REGULATIONS OR STANDARDS,
WHETHER FEDERAL, STATE OR LOCAL, OR COURT OR ADMINISTRATIVE ORDERS OR DECREES
(INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LAWS, ETC.), AND ALL COSTS,
EXPENSES, FINES, PENALTIES OR OTHER DAMAGES RESULTING THEREFROM, UNLESS IN EACH
CASE RESULTING FROM ACTS OR CONDUCT OF LENDER CONSTITUTING WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE, AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.
THIS INDEMNIFICATION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE
PAYMENT IN FULL AND SATISFACTION OF THE OBLIGATIONS.
36
(C)
LENDER SHALL NOT BE LIABLE FOR, AND
BORROWERS HEREBY AGREE THAT LENDER'S LIABILITY IN THE EVENT OF A BREACH BY
LENDER OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE LIMITED TO
BORROWERS' DIRECT DAMAGES SUFFERED AND SHALL NOT EXTEND TO, ANY CONSEQUENTIAL OR
INCIDENTAL DAMAGES.
IN THE EVENT BORROWERS BRING SUIT AGAINST LENDER IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREUNDER, AND LENDER IS FOUND NOT
TO BE LIABLE, BORROWERS SHALL INDEMNIFY AND HOLD LENDER HARMLESS FROM ALL COSTS
AND EXPENSES, INCLUDING ATTORNEYS' FEES, INCURRED BY LENDER IN CONNECTION WITH
SUCH SUIT.
9.04
TIME.
WHENEVER BORROWERS, OR ANY OF THEM, SHALL
BE REQUIRED TO MAKE ANY PAYMENT, OR PERFORM ANY ACT, ON A DAY WHICH IS NOT A
BUSINESS DAY, SUCH PAYMENT MAY BE MADE, OR SUCH ACT MAY BE PERFORMED, ON THE
NEXT SUCCEEDING BUSINESS DAY.
TIME IS OF THE ESSENCE IN BORROWERS'
PERFORMANCE
UNDER ALL PROVISIONS OF THIS AGREEMENT AND ALL RELATED AGREEMENTS AND DOCUMENTS.
9.05
EXPENSES OF LENDER.
(A)
AT CLOSING AND FROM TIME TO TIME THEREAFTER,
BORROWERS WILL PAY ALL REASONABLE EXPENSES OF LENDER ON DEMAND (INCLUDING,
WITHOUT