CASE WHERE, BY LAW OR UNDER THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS, LENDER OR SUCH AGENT, AS THE CASE MAY BE, HAS AN
OBLIGATION TO ACT REASONABLY OR PROMPTLY, NEITHER LENDER NOR ITS AGENTS SHALL BE
LIABLE FOR ANY MONETARY DAMAGES, AND BORROWER'S SOLE REMEDY SHALL BE LIMITED TO
COMMENCING AN ACTION SEEKING INJUNCTIVE RELIEF OR DECLARATORY JUDGMENT. ANY
ACTION OR PROCEEDING TO DETERMINE WHETHER LENDER HAS ACTED REASONABLY SHALL BE
DETERMINED BY AN ACTION SEEKING DECLARATORY JUDGMENT.
SECTION 11.13
EXPENSES; INDEMNITY.
(A)
BORROWER SHALL PAY OR, IF BORROWER FAILS TO
PAY, REIMBURSE LENDER UPON RECEIPT OF NOTICE FROM LENDER, FOR ALL REASONABLE
COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS)
INCURRED BY LENDER IN CONNECTION WITH (I) BORROWER'S ONGOING PERFORMANCE OF AND
COMPLIANCE WITH BORROWER'S 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; (II) LENDER'S ONGOING PERFORMANCE OF
AND COMPLIANCE WITH ALL 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 BUT NOT FOR PERIODIC NORMAL SITE VISITS AND ONLY FOR OUT-OF-POCKET
COSTS; (III) 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 BORROWER; (IV) THE FILING AND RECORDING FEES AND EXPENSES, TITLE
INSURANCE AND REASONABLE FEES AND EXPENSES OF
78
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; (V) ENFORCING OR
PRESERVING ANY RIGHTS, IN RESPONSE TO THIRD PARTY CLAIMS OR THE PROSECUTING OR
DEFENDING OF ANY ACTION OR PROCEEDING OR OTHER LITIGATION OR OTHERWISE, 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 (VI)
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. ANY COSTS DUE AND PAYABLE TO LENDER MAY BE PAID TO LENDER PURSUANT TO
THE CASH MANAGEMENT AGREEMENT.
(B)
BORROWER SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS LENDER AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES (AND THE
SUCCESSORS AND ASSIGNS OF THE FOREGOING) (THE "LENDER INDEMNITEES") FROM AND
AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES (EXCLUDING
CONSEQUENTIAL DAMAGES), PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS,
EXPENSES