LITIGATION OR PROCEEDING, INCLUDING APPELLATE
PROCEEDINGS, AFFECTING THIS MORTGAGE OR THE MORTGAGED PROPERTY (INCLUDING,
WITHOUT LIMITATION, THE OCCUPANCY THEREOF OR ANY CONSTRUCTION WORK PERFORMED
THEREON), INCLUDING PROBATE AND BANKRUPTCY PROCEEDINGS, OR IN PREPARATION FOR
THE COMMENCEMENT OR DEFENSE OF ANY PROCEEDING OR THREATENED SUIT OR PROCEEDING
WHETHER OR NOT AN ACTION IS ACTUALLY COMMENCED, SHALL BE IMMEDIATELY DUE AND
PAYABLE BY THE MORTGAGOR, WITH INTEREST THEREON AT THE RATE OF INTEREST SET
FORTH IN SECTION 4.4 OF THE CREDIT AGREEMENT AND SHALL BE PART OF THE
OBLIGATIONS SECURED BY THIS MORTGAGE.
4.10
INDEMNITY.
(A)
THE MORTGAGOR AGREES TO INDEMNIFY, REIMBURSE AND HOLD
THE MORTGAGEE AND EACH OTHER SECURED CREDITOR AND THEIR RESPECTIVE SUCCESSORS,
PERMITTED ASSIGNS, EMPLOYEES, AFFILIATES AND AGENTS (HEREINAFTER IN THIS
SECTION 4.10 REFERRED TO INDIVIDUALLY AS "INDEMNITEE," AND COLLECTIVELY AS
"INDEMNITEES") HARMLESS FROM ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES,
INJURIES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, SUITS, JUDGMENTS AND ANY AND ALL
COSTS, EXPENSES OR DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS' FEES AND
EXPENSES) (FOR THE PURPOSES OF THIS SECTION 4.10 THE FOREGOING ARE COLLECTIVELY
CALLED "EXPENSES") OF WHATSOEVER KIND AND NATURE IMPOSED ON, ASSERTED AGAINST OR
INCURRED BY ANY OF THE INDEMNITEES IN ANY WAY RELATING TO OR ARISING OUT OF THIS
MORTGAGE OR IN ANY WAY CONNECTED WITH THE ADMINISTRATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ENFORCEMENT OF ANY OF THE TERMS OF, OR THE
PRESERVATION OF ANY RIGHTS UNDER THIS MORTGAGE, OR IN ANY WAY RELATING TO OR
ARISING OUT OF THE MANUFACTURE, OWNERSHIP, ORDERING, PURCHASE, DELIVERY,
CONTROL, ACCEPTANCE, LEASE, FINANCING, POSSESSION, OPERATION, CONDITION, SALE,
RETURN OR OTHER DISPOSITION, OR USE OF THE MORTGAGED PROPERTY (INCLUDING,
WITHOUT LIMITATION, LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE), THE
VIOLATION OF THE LAWS OF ANY COUNTRY, STATE OR OTHER GOVERNMENTAL BODY OR UNIT,
ANY TORT (INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING OR IMPOSED UNDER THE
DOCTRINE OF STRICT LIABILITY, OR FOR OR ON ACCOUNT OF INJURY TO OR THE DEATH OF
ANY PERSON (INCLUDING ANY INDEMNITEE), OR PROPERTY DAMAGE) OR CONTRACT CLAIM;
PROVIDED THAT NO INDEMNITEE SHALL BE INDEMNIFIED PURSUANT TO THIS SECTION 4.10
FOR LOSSES, DAMAGES OR LIABILITIES TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE (AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION IN A FINAL AND NON-APPEALABLE DECISION).
THE MORTGAGOR AGREES THAT
UPON WRITTEN NOTICE BY ANY INDEMNITEE OF THE ASSERTION OF SUCH A LIABILITY,
OBLIGATION, DAMAGE, INJURY, PENALTY, CLAIM, DEMAND, ACTION, SUIT OR JUDGMENT,
THE MORTGAGOR SHALL ASSUME FULL RESPONSIBILITY FOR THE DEFENSE THEREOF.
EACH
INDEMNITEE AGREES TO USE ITS BEST EFFORTS TO PROMPTLY NOTIFY THE MORTGAGOR OF
ANY SUCH ASSERTION OF WHICH SUCH INDEMNITEE HAS KNOWLEDGE.
THE MORTGAGOR SHALL
NOT BE OBLIGATED TO INDEMNIFY ANY INDEMNITEE FOR ANY EXPENSES PURSUANT TO THIS
SECTION 4.10 TO THE EXTENT SUCH EXPENSES (I) ARE INCURRED AFTER FEE SIMPLE TITLE
TO THE MORTGAGED PROPERTY IS TRANSFERRED TO THE MORTGAGEE OR A THIRD PARTY
PURSUANT TO A PERMITTED RELEASE OR PURSUANT TO A FORECLOSURE SALE OR A DEED IN
LIEU OF FORECLOSURE AND (II) ARISE