REMAINING PROVISIONS OF THIS
LOAN AGREEMENT.
SECTION 10.10
PREFERENCES.
LENDER SHALL HAVE THE
CONTINUING AND EXCLUSIVE RIGHT TO APPLY OR REVERSE AND REAPPLY ANY AND ALL
PAYMENTS BY BORROWER TO ANY PORTION OF THE OBLIGATIONS OF BORROWER HEREUNDER.
TO THE EXTENT BORROWER MAKES A PAYMENT OR PAYMENTS TO LENDER, WHICH PAYMENT OR
PROCEEDS OR ANY PART THEREOF ARE SUBSEQUENTLY INVALIDATED, DECLARED TO BE
FRAUDULENT OR PREFERENTIAL, SET ASIDE OR REQUIRED TO BE REPAID TO A TRUSTEE,
RECEIVER OR ANY OTHER PARTY UNDER ANY BANKRUPTCY LAW, STATE OR FEDERAL LAW,
COMMON LAW OR EQUITABLE CAUSE, THEN, TO THE EXTENT OF SUCH PAYMENT OR PROCEEDS
RECEIVED, THE OBLIGATIONS HEREUNDER OR PART THEREOF INTENDED TO BE SATISFIED
SHALL BE REVIVED AND CONTINUE IN FULL FORCE AND EFFECT, AS IF SUCH PAYMENT OR
PROCEEDS HAD NOT BEEN RECEIVED BY LENDER.
SECTION 10.11
WAIVER OF NOTICE.
BORROWER SHALL NOT BE
ENTITLED TO ANY NOTICES OF ANY NATURE WHATSOEVER FROM LENDER EXCEPT WITH RESPECT
TO MATTERS FOR WHICH THIS LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS
SPECIFICALLY AND EXPRESSLY PROVIDE FOR THE GIVING OF NOTICE BY LENDER TO
BORROWER AND EXCEPT WITH RESPECT TO MATTERS FOR WHICH BORROWER IS NOT, PURSUANT
TO APPLICABLE LEGAL REQUIREMENTS, PERMITTED TO WAIVE THE GIVING OF NOTICE.
BORROWER HEREBY EXPRESSLY WAIVES THE RIGHT TO RECEIVE ANY NOTICE FROM LENDER
WITH RESPECT TO ANY MATTER FOR WHICH THIS LOAN
74
AGREEMENT OR THE OTHER LOAN DOCUMENTS DO NOT SPECIFICALLY AND EXPRESSLY PROVIDE
FOR THE GIVING OF NOTICE BY LENDER TO BORROWER.
SECTION 10.12
REMEDIES OF BORROWER.
IN THE EVENT THAT
A CLAIM OR ADJUDICATION IS MADE THAT LENDER OR ITS AGENTS HAVE ACTED
UNREASONABLY OR UNREASONABLY DELAYED ACTING IN ANY CASE WHERE BY LAW OR UNDER
THIS LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, LENDER OR SUCH 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 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 LOAN 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 LOAN 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
LOAN AGREEMENT AND THE OTHER LOAN