TO LENDER OR ANY MEMBER OF THE
ISSUER GROUP OR UNDERWRITER GROUP BY OR ON BEHALF OF BORROWER OR BORROWER
PRINCIPAL IN CONNECTION WITH THE PREPARATION OF THE MEMORANDUM OR PROSPECTUS OR
OTHER DOCUMENT (INCLUDING ANY INVESTOR OR RATING AGENCY "TERM SHEETS" OR
PRESENTATIONS RELATING TO ANY PROPERTY AND/OR THE LOAN) OR IN CONNECTION WITH
THE UNDERWRITING OF THE LOAN, INCLUDING, WITHOUT LIMITATION, FINANCIAL
STATEMENTS OF BORROWER OR BORROWER PRINCIPAL, OPERATING STATEMENTS, RENT ROLLS,
ENVIRONMENTAL SITE ASSESSMENT REPORTS AND PROPERTY CONDITION REPORTS WITH
RESPECT TO ANY PROPERTY.
THIS INDEMNITY AGREEMENT WILL BE IN ADDITION TO ANY
LIABILITY WHICH BORROWER MAY OTHERWISE HAVE.
MOREOVER, THE INDEMNIFICATION
PROVIDED FOR IN CLAUSES (1) AND (2) ABOVE SHALL BE EFFECTIVE WHETHER OR NOT A
CERTIFICATE DESCRIBED IN (A) ABOVE IS PROVIDED AND SHALL BE APPLICABLE BASED ON
INFORMATION PREVIOUSLY PROVIDED BY BORROWER AND BORROWER PRINCIPAL OR THEIR
AFFILIATES IF BORROWER OR BORROWER PRINCIPAL DO NOT PROVIDE THE INDEMNIFICATION
CERTIFICATE.
116
(C)
IN CONNECTION WITH FILINGS UNDER THE EXCHANGE ACT OR ANY
INFORMATION PROVIDED TO HOLDERS OF SECURITIES ON AN ONGOING BASIS, BORROWER
AGREES TO INDEMNIFY (I) LENDER, THE ISSUER GROUP AND THE UNDERWRITER GROUP FOR
LOSSES TO WHICH LENDER, THE ISSUER GROUP OR THE UNDERWRITER GROUP MAY BECOME
SUBJECT INSOFAR AS THE SECURITIES LIABILITIES ARISE OUT OF OR ARE BASED UPON THE
OMISSION OR ALLEGED OMISSION WHICH IS IN FACT AN OMISSION TO STATE IN THE
PROVIDED INFORMATION A MATERIAL FACT REQUIRED TO BE STATED IN THE PROVIDED
INFORMATION IN ORDER TO MAKE THE STATEMENTS IN THE PROVIDED INFORMATION, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE NOT MISLEADING AND (II)
REIMBURSE LENDER, THE ISSUER GROUP OR THE UNDERWRITER GROUP FOR ANY LEGAL OR
OTHER EXPENSES REASONABLY INCURRED BY LENDER, THE ISSUER GROUP OR THE
UNDERWRITER GROUP IN CONNECTION WITH DEFENDING OR INVESTIGATING THE SECURITIES
LIABILITIES.
(D)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY UNDER THIS
SECTION 13.5 OF NOTICE OF THE COMMENCEMENT OF ANY ACTION, SUCH INDEMNIFIED PARTY
WILL, IF A CLAIM IN RESPECT THEREOF IS TO BE MADE AGAINST THE INDEMNIFYING PARTY
UNDER THIS SECTION 13.5, NOTIFY THE INDEMNIFYING PARTY IN WRITING OF THE
COMMENCEMENT THEREOF, BUT THE OMISSION TO SO NOTIFY THE INDEMNIFYING PARTY WILL
NOT RELIEVE THE INDEMNIFYING PARTY FROM ANY LIABILITY WHICH THE INDEMNIFYING
PARTY MAY HAVE TO ANY INDEMNIFIED PARTY HEREUNDER EXCEPT TO THE EXTENT THAT
FAILURE TO NOTIFY CAUSES PREJUDICE TO THE INDEMNIFYING PARTY.
IN THE EVENT THAT
ANY ACTION IS BROUGHT AGAINST ANY INDEMNIFIED PARTY, AND IT NOTIFIES THE
INDEMNIFYING PARTY OF THE COMMENCEMENT THEREOF, THE INDEMNIFYING PARTY WILL BE
ENTITLED, JOINTLY WITH ANY OTHER INDEMNIFYING PARTY, TO PARTICIPATE THEREIN AND,
TO THE EXTENT THAT IT (OR THEY) MAY ELECT BY WRITTEN NOTICE DELIVERED TO THE
INDEMNIFIED PARTY PROMPTLY AFTER RECEIVING THE AFORESAID NOTICE FROM SUCH
INDEMNIFIED PARTY, TO ASSUME THE DEFENSE THEREOF WITH COUNSEL REASONABLY
SATISFACTORY TO SUCH INDEMNIFIED PARTY.
AFTER NOTICE FROM THE INDEMNIFYING
PARTY TO SUCH INDEMNIFIED PARTY UNDER THIS SECTION 13.5 THE INDEMNIFYING PARTY
SHALL BE RESPONSIBLE FOR ANY