OR PROCEEDING OR CAUSE THE SAME TO BE RESISTED AND
DEFENDED BY COUNSEL REASONABLY SATISFACTORY TO THE PERSON OR PERSONS INDEMNIFIED
OR INTENDED TO BE INDEMNIFIED.
EACH INDEMNIFIED PARTY SHALL, UNLESS THE
COLLATERAL AGENT, A SECURED PARTY OR OTHER INDEMNIFIED PARTY HAS MADE THE
REQUEST DESCRIBED IN THE PRECEDING SENTENCE AND SUCH REQUEST HAS BEEN COMPLIED
WITH, HAVE THE RIGHT TO EMPLOY ITS OWN COUNSEL (OR (BUT NOT AS WELL AS) STAFF
COUNSEL) TO INVESTIGATE AND CONTROL THE DEFENSE OF ANY MATTER COVERED BY SUCH
INDEMNITY AND THE REASONABLE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE
EXPENSE OF THE INDEMNIFYING PARTY.
EXCLUDING ANY LIABILITY TO THE EXTENT
ARISING OUT OF THE GROSS NEGLIGENCE, WILLFUL
25
MISCONDUCT OR BAD FAITH OF ANY INDEMNIFIED PARTY AS FINALLY DETERMINED BY A
COURT OF COMPETENT JURISDICTION, THE ASSIGNORS FURTHER, JOINTLY AND SEVERALLY,
AGREE TO INDEMNIFY AND HOLD EACH INDEMNIFIED PARTY HARMLESS FROM ALL LOSS, COST
(INCLUDING ATTORNEY COSTS), LIABILITY AND DAMAGE WHATSOEVER INCURRED BY ANY
INDEMNIFIED PARTY BY REASON OF ANY VIOLATION OF ANY ENVIRONMENTAL LAWS OR
ENVIRONMENTAL PERMITS OR FOR THE RELEASE OR THREATENED RELEASE OF ANY
CONTAMINANTS INTO THE ENVIRONMENT FOR WHICH ANY ASSIGNOR HAS ANY LIABILITY OR
WHICH OCCURS UPON THE MORTGAGED PROPERTY OR WHICH IS RELATED TO ANY PROPERTY
CURRENTLY OR FORMERLY OWNED, LEASED OR OPERATED BY OR ON BEHALF OF ANY ASSIGNOR,
OR BY REASON OF THE IMPOSITION OF ANY ENVIRONMENTAL LIEN IN RESPECT OF THE
PROPERTY OF ANY ASSIGNOR OR WHICH OCCURS BY A BREACH OF ANY OF THE
REPRESENTATIONS, WARRANTIES OR COVENANTS RELATING TO ENVIRONMENTAL MATTERS
CONTAINED HEREIN, PROVIDED THAT, WITH RESPECT TO ANY LIABILITIES ARISING FROM
ACTS OR FAILURE TO ACT FOR WHICH ANY ASSIGNOR IS STRICTLY LIABLE UNDER ANY
ENVIRONMENTAL LAW OR ENVIRONMENTAL PERMIT, THE ASSIGNORS' OBLIGATION TO EACH
INDEMNIFIED PARTY UNDER THIS INDEMNITY SHALL LIKEWISE BE WITHOUT REGARD TO FAULT
ON THE PART OF ANY ASSIGNOR.
IF ANY ASSIGNOR SHALL FAIL TO DO ANY ACT OR THING
WHICH IT HAS COVENANTED TO DO HEREUNDER OR ANY REPRESENTATION OR WARRANTY ON THE
PART OF ANY ASSIGNOR CONTAINED HEREIN OR IN ANY OTHER LOAN DOCUMENT SHALL BE
BREACHED, THE COLLATERAL AGENT MAY (BUT SHALL NOT BE OBLIGATED TO) DO THE SAME
OR CAUSE IT TO BE DONE OR REMEDY ANY SUCH BREACH, AND MAY EXPEND ITS FUNDS FOR
SUCH PURPOSE, AND WILL USE ITS BEST EFFORTS TO GIVE PROMPT WRITTEN NOTICE TO THE
BORROWER THAT IT PROPOSES TO TAKE SUCH ACTION.
ANY AND ALL AMOUNTS SO EXPENDED
BY THE COLLATERAL AGENT SHALL BE REPAID TO IT BY THE ASSIGNORS PROMPTLY UPON THE
COLLATERAL AGENT'S DEMAND THEREFOR, WITH INTEREST AT THE DEFAULT RATE IN EFFECT
FROM TIME TO TIME DURING THE PERIOD INCLUDING THE DATE SO EXPENDED BY THE
COLLATERAL AGENT TO THE DATE OF REPAYMENT.
TO THE EXTENT THAT THE UNDERTAKING
TO INDEMNIFY, PAY OR HOLD HARMLESS THE COLLATERAL AGENT OR ANY SECURED PARTY AS
SET FORTH IN THIS SECTION 9.1 MAY BE UNENFORCEABLE BECAUSE IT IS VIOLATIVE OF
ANY LAW OR