under, the Security Instrument, or
exercising any other rights and remedies thereunder.
This Agreement is not
collateral or security for the debt of Borrower pursuant to the Loan, unless
Lender expressly elects in writing to make this Agreement additional collateral
or security for the debt of Borrower pursuant to the Loan, which Lender is
entitled to do in its sole and absolute discretion.
It is not necessary for an
Event of Default to have occurred for any Indemnified Party to exercise their
rights pursuant to this Agreement.
Notwithstanding any provision of the Loan
Agreement, the obligations pursuant to this Agreement are exceptions to any
non-recourse or exculpation provision of the Loan Agreement
7
and Borrower is fully and personally liable for such obligations, and such
liability is not limited to the original or amortized principal balance of the
Loan or the value of the Property.
9.
SURVIVAL.
THE OBLIGATIONS AND LIABILITIES OF BORROWER UNDER THIS
AGREEMENT SHALL FULLY SURVIVE INDEFINITELY NOTWITHSTANDING ANY TERMINATION,
SATISFACTION, ASSIGNMENT, ENTRY OF A JUDGMENT OF FORECLOSURE, EXERCISE OF ANY
POWER OF SALE, OR DELIVERY OF A DEED IN LIEU OF FORECLOSURE OF THE SECURITY
INSTRUMENT.
NOTWITHSTANDING THE FOREGOING OR ANY PROVISIONS OF THIS AGREEMENT
TO THE CONTRARY, THE LIABILITIES AND OBLIGATIONS OF THE INDEMNITOR HEREUNDER
SHALL TERMINATE FIVE (5) YEARS AFTER PAYMENT IN FULL OF ALL PRINCIPAL AND
INTEREST DUE ON THE LOAN EXCEPT WITH RESPECT TO ANY OUTSTANDING OBLIGATIONS.
THE LIABILITIES AND OBLIGATIONS OF BORROWER HEREUNDER SHALL NOT APPLY TO THE
EXTENT THAT BORROWER PROVES THAT SUCH LIABILITIES AND OBLIGATIONS AROSE SOLELY
FROM HAZARDOUS SUBSTANCES THAT: (A) WERE NOT PRESENT ON OR A THREAT TO THE
PROPERTY PRIOR TO THE DATE THAT LENDER OR ITS NOMINEE ACQUIRED TITLE TO THE
PROPERTY, WHETHER BY FORECLOSURE, EXERCISE OF POWER OF SALE OR OTHERWISE AND (B)
WERE NOT THE RESULT OF ANY ACT OR NEGLIGENCE OF BORROWER OR ANY OF BORROWER'S
AFFILIATES, AGENTS OR CONTRACTORS.
10.
INTEREST.
ANY AMOUNTS PAYABLE TO ANY INDEMNIFIED PARTIES UNDER
THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE ON DEMAND AND, IF NOT
PAID WITHIN FIVE (5) DAYS OF SUCH DEMAND THEREFOR, SHALL BEAR INTEREST AT THE
DEFAULT RATE.
11.
WAIVERS.
BORROWER HEREBY WAIVES (I) ANY RIGHT OR CLAIM OF RIGHT
TO CAUSE A MARSHALING OF BORROWER'S ASSETS OR TO CAUSE LENDER OR OTHER
INDEMNIFIED PARTIES TO PROCEED AGAINST ANY OF THE SECURITY FOR THE LOAN BEFORE
PROCEEDING UNDER THIS AGREEMENT AGAINST BORROWER; (II) AND RELINQUISHES ALL
RIGHTS AND REMEDIES ACCORDED BY APPLICABLE LAW TO INDEMNITORS OR GUARANTORS,
EXCEPT ANY RIGHTS OF SUBROGATION WHICH BORROWER MAY HAVE, PROVIDED THAT THE
INDEMNITY PROVIDED FOR HEREUNDER SHALL NEITHER BE CONTINGENT UPON THE EXISTENCE
OF ANY SUCH RIGHTS OF SUBROGATION NOR SUBJECT TO ANY CLAIMS OR DEFENSES
WHATSOEVER WHICH MAY BE ASSERTED IN CONNECTION WITH THE ENFORCEMENT OR ATTEMPTED
ENFORCEMENT OF SUCH SUBROGATION RIGHTS INCLUDING, WITHOUT LIMITATION, ANY CLAIM
THAT SUCH SUBROGATION RIGHTS WERE ABROGATED BY ANY ACTS OF LENDER OR OTHER
INDEMNIFIED PARTIES; (III) THE RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A