AND DISBURSEMENTS, PROVIDED, HOWEVER, THAT
LENDER AGREES TO USE ITS BEST EFFORTS TO LIMIT SUCH COSTS AND EXPENSES TO NO
MORE THAN $25,000 IN THE AGGREGATE, AND SHALL PROVIDE REASONABLE ADVANCE NOTICE
TO BORROWER IN THE EVENT LENDER ANTICIPATES SEEKING REPAYMENT FROM BORROWER FOR
COSTS AND EXPENSES IN EXCESS OF $25,000 IN THE AGGREGATE, FOR THE PURPOSE OF
ENGAGING IN GOOD FAITH DISCUSSIONS WITH BORROWER TO MINIMIZE SUCH EXCESS COSTS;
(B) THE LENDER IN CONNECTION WITH EACH AMENDMENT, WAIVER OR CONSENT IN
CONNECTION WITH ANY OF THE LOAN DOCUMENTS, AND (C) THE LENDER IN CONNECTION WITH
EACH REFINANCING, RESTRUCTURING, REORGANIZATION (INCLUDING A BANKRUPTCY
REORGANIZATION) AND ENFORCEMENT OR ATTEMPTED ENFORCEMENT OF THE LOAN DOCUMENTS,
AND ANY MATTER RELATED THERETO, IN EACH CASE INCLUDING, FILING FEES, RECORDING
FEES, APPRAISAL FEES, SEARCH FEES AND OTHER OUT-OF-POCKET EXPENSES AND THE
REASONABLE FEES AND OUT-OF-POCKET EXPENSES OF ANY LEGAL COUNSEL, INDEPENDENT
PUBLIC ACCOUNTANTS AND OTHER OUTSIDE EXPERTS RETAINED BY THE LENDER, AND
INCLUDING ANY COSTS, EXPENSES OR FEES INCURRED OR SUFFERED BY THE LENDER IN
CONNECTION WITH OR DURING THE COURSE OF ANY BANKRUPTCY OR INSOLVENCY PROCEEDINGS
OF THE BORROWER. ANY AMOUNT PAYABLE TO THE LENDER UNDER THIS SECTION SHALL BEAR
INTEREST AT A PER ANNUM RATE EQUAL TO THE DEFAULT RATE.
SECTION 10.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN OR IN ANY OTHER LOAN DOCUMENT, OR IN ANY CERTIFICATE
OR OTHER WRITING DELIVERED BY OR ON BEHALF OF ANY ONE OR MORE OF THE PARTIES TO
ANY LOAN DOCUMENT, WILL SURVIVE THE MAKING OF THE ADVANCES HEREUNDER AND THE
EXECUTION AND DELIVERY OF THE LOAN DOCUMENTS, AND HAVE BEEN OR WILL BE RELIED
UPON BY THE LENDER, NOTWITHSTANDING ANY INVESTIGATION MADE BY THE LENDER OR ON
THEIR BEHALF.
SECTION 10.6 NOTICES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE LOAN
DOCUMENTS (A) ALL NOTICES, REQUESTS, DEMANDS, DIRECTIONS AND OTHER
COMMUNICATIONS PROVIDED
62
FOR HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT MUST BE IN WRITING AND MUST BE
MAILED, TELEGRAPHED, TELECOPIED, DELIVERED OR SENT BY RECOGNIZED OVERNIGHT
COURIER SERVICE, TO THE APPROPRIATE PARTY AT THE ADDRESS SET FORTH ON THE
SIGNATURE PAGES OF THIS AGREEMENT OR OTHER APPLICABLE LOAN DOCUMENT OR, AS TO
ANY PARTY TO ANY LOAN DOCUMENT, AT ANY OTHER ADDRESS AS MAY BE DESIGNATED BY IT
IN A WRITTEN NOTICE SENT TO ALL OTHER PARTIES TO SUCH LOAN DOCUMENT IN
ACCORDANCE WITH THIS SECTION; AND (B) ANY NOTICE, REQUEST, DEMAND, DIRECTION OR
OTHER COMMUNICATION GIVEN BY TELECOPIER OR FACSIMILE, MUST BE CONFIRMED WITHIN
48 HOURS BY LETTER MAILED OR DELIVERED TO THE APPROPRIATE PARTY AT ITS
RESPECTIVE ADDRESS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY LOAN
DOCUMENT, IF ANY NOTICE, REQUEST, DEMAND, DIRECTION OR OTHER COMMUNICATION
REQUIRED OR PERMITTED BY ANY LOAN DOCUMENT IS GIVEN BY MAIL IT WILL BE EFFECTIVE
ON THE EARLIER OF RECEIPT OR THE THIRD BUSINESS DAY AFTER DEPOSIT IN THE UNITED
STATES MAIL WITH FIRST CLASS OR AIRMAIL POSTAGE PREPAID; IF GIVEN BY TELEGRAPH
OR CABLE, WHEN DELIVERED TO THE TELEGRAPH COMPANY