AND THIS SECTION 9.4; (H) ANY
PAST, PRESENT OR THREATENED INJURY TO, DESTRUCTION OF OR LOSS OF NATURAL
RESOURCES IN ANY WAY CONNECTED WITH THE PROPERTY, INCLUDING BUT NOT LIMITED TO
COSTS TO INVESTIGATE AND ASSESS SUCH INJURY, DESTRUCTION OR LOSS; (I) ANY ACTS
OF BORROWER OR OTHER USERS OF THE PROPERTY IN ARRANGING FOR DISPOSAL OR
TREATMENT, OR ARRANGING WITH A TRANSPORTER FOR TRANSPORT FOR DISPOSAL OR
TREATMENT, OF HAZARDOUS SUBSTANCES OWNED OR POSSESSED BY SUCH BORROWER OR OTHER
USERS, AT ANY FACILITY OR INCINERATION VESSEL OWNED OR OPERATED BY ANOTHER
PERSON AND CONTAINING SUCH OR ANY SIMILAR HAZARDOUS SUBSTANCE; (J) ANY ACTS OF
BORROWER OR OTHER USERS OF THE PROPERTY, IN ACCEPTING ANY HAZARDOUS SUBSTANCE
FOR TRANSPORT TO DISPOSAL OR TREATMENT FACILITIES, INCINERATION VESSELS OR SITES
SELECTED BY BORROWER OR SUCH OTHER USERS, FROM WHICH THERE IS A RELEASE, OR A
THREATENED RELEASE OF ANY HAZARDOUS SUBSTANCE WHICH CAUSES THE INCURRENCE OF
COSTS FOR REMEDIATION; (K) ANY PERSONAL INJURY, WRONGFUL DEATH, OR PROPERTY
DAMAGE ARISING UNDER ANY STATUTORY OR COMMON LAW OR TORT LAW THEORY, INCLUDING
BUT NOT LIMITED TO DAMAGES ASSESSED FOR THE MAINTENANCE OF A PRIVATE OR PUBLIC
NUISANCE OR FOR THE CONDUCTING OF AN ABNORMALLY DANGEROUS ACTIVITY ON OR NEAR
THE PROPERTY, IN EACH CASE, TO THE EXTENT ARISING OUT OF THE PRESENCE OF
HAZARDOUS SUBSTANCES; AND (1) ANY MISREPRESENTATION OR INACCURACY IN ANY
REPRESENTATION OR WARRANTY OR MATERIAL BREACH OR FAILURE TO PERFORM ANY
COVENANTS OR OTHER OBLIGATIONS PURSUANT TO ARTICLE 8.
THIS INDEMNITY SHALL
SURVIVE ANY TERMINATION, SATISFACTION OR FORECLOSURE OF THIS SECURITY
INSTRUMENT, SUBJECT TO THE PROVISIONS OF SECTION 10.5.
NOTWITHSTANDING THE
FOREGOING, BORROWER SHALL HAVE NO LIABILITY FOR ANY LOSSES IMPOSED UPON OR
INCURRED BY OR ASSERTED AGAINST ANY INDEMNIFIED PARTIES AND DESCRIBED IN THIS
SECTION 9.4 TO THE EXTENT THAT SUCH LOSSES AROSE SOLELY BY ACTIONS, CONDITIONS
OR EVENTS RELATING TO THE HAZARDOUS SUBSTANCES PLACED IN, ON, ABOVE OR UNDER THE
PROPERTY AFTER THE DATE THAT LENDER OR ANY AFFILIATE OR NOMINEE OF LENDER (OR
ANY PURCHASER AT A FORECLOSURE SALE) ACTUALLY ACQUIRED TITLE TO THE PROPERTY AND
WERE NOT CAUSED BY THE DIRECT OR INDIRECT ACTIONS OF BORROWER OR ANY OFFICER OR
DIRECTOR OF BORROWER OR ANY EMPLOYEE, AGENT, CONTRACTOR OR AFFILIATE OF
BORROWER.
SECTION 9.5
DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND
EXPENSES.
UPON WRITTEN REQUEST BY ANY INDEMNIFIED PARTY, BORROWER SHALL DEFEND
SUCH INDEMNIFIED PARTY (IF REQUESTED BY ANY INDEMNIFIED PARTY, IN THE NAME OF
THE INDEMNIFIED PARTY) BY ATTORNEYS AND OTHER PROFESSIONALS APPROVED BY THE
INDEMNIFIED PARTIES.
NOTWITHSTANDING THE FOREGOING, IF THE DEFENDANTS IN ANY
SUCH CLAIM OR PROCEEDING INCLUDE BOTH BORROWER AND ANY INDEMNIFIED PARTY AND
BORROWER AND SUCH INDEMNIFIED PARTY SHALL HAVE REASONABLY CONCLUDED THAT THERE
ARE ANY LEGAL DEFENSES AVAILABLE TO IT AND/OR OTHER INDEMNIFIED PARTIES THAT ARE
DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO BORROWER, SUCH INDEMNIFIED
PARTY SHALL HAVE THE RIGHT TO SELECT SEPARATE COUNSEL TO ASSERT SUCH LEGAL
DEFENSES AND TO OTHERWISE PARTICIPATE IN THE DEFENSE OF