AS CUSTODIANS, TRUSTEES AND
OTHER FIDUCIARIES WHO HOLD OR HAVE HELD A FULL OR PARTIAL INTEREST IN THE LOAN
FOR THE BENEFIT OF THIRD PARTIES) AS WELL AS THE RESPECTIVE DIRECTORS, OFFICERS,
SHAREHOLDERS, PARTNERS, EMPLOYEES, AGENTS, SERVANTS, REPRESENTATIVES,
CONTRACTORS, SUBCONTRACTORS, AFFILIATES, SUBSIDIARIES, PARTICIPANTS, SUCCESSORS
AND ASSIGNS OF ANY AND ALL OF THE FOREGOING (INCLUDING, BUT NOT LIMITED TO, ANY
OTHER PERSON WHO HOLDS OR ACQUIRES OR WILL HAVE HELD A PARTICIPATION OR OTHER
FULL OR PARTIAL INTEREST IN THE LOAN, WHETHER DURING THE TERM OF THE LOAN OR AS
A PART OF OR FOLLOWING A FORECLOSURE OF THE LOAN AND ANY SUCCESSORS BY MERGER,
CONSOLIDATION OR ACQUISITION OF ALL OR A SUBSTANTIAL PORTION OF LENDER'S ASSETS
AND BUSINESS).
(C)
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST
ANY AND ALL LOSSES IMPOSED UPON OR INCURRED BY OR ASSERTED AGAINST ANY
INDEMNIFIED PARTIES AND DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY
RELATING TO ANY TAX ON THE MAKING AND/OR RECORDING OF THE SECURITY INSTRUMENT,
THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, BUT EXCLUDING ANY INCOME, FRANCHISE
OR OTHER SIMILAR TAXES.
(D)
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST
ANY AND ALL LOSSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES
AND COSTS INCURRED IN THE INVESTIGATION, DEFENSE, AND SETTLEMENT OF LOSSES
INCURRED IN CORRECTING ANY PROHIBITED TRANSACTION OR IN THE SALE OF A PROHIBITED
LOAN, AND IN OBTAINING ANY INDIVIDUAL PROHIBITED TRANSACTION EXEMPTION UNDER
ERISA THAT MAY BE REQUIRED, IN LENDER'S SOLE DISCRETION) THAT LENDER MAY INCUR,
DIRECTLY OR INDIRECTLY, AS A RESULT OF A DEFAULT UNDER ANY OF THE PROVISIONS OF
SECTION 5.1.19.
(E)
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 SUCH ACTION ON BEHALF OF
SUCH INDEMNIFIED PARTY, PROVIDED THAT NO COMPROMISE OR SETTLEMENT SHALL BE
ENTERED WITHOUT BORROWER'S CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD.
UPON DEMAND, BORROWER SHALL PAY OR, IN THE SOLE AND ABSOLUTE
DISCRETION OF THE INDEMNIFIED PARTIES, REIMBURSE, THE INDEMNIFIED PARTIES FOR
THE PAYMENT OF REASONABLE FEES AND DISBURSEMENTS OF ATTORNEYS, ENGINEERS,
ENVIRONMENTAL CONSULTANTS, LABORATORIES AND OTHER PROFESSIONALS IN CONNECTION
THEREWITH.
SECTION 9.4.
EXCULPATION.
(A)
SUBJECT TO THE FURTHER QUALIFICATIONS OF THIS SECTION 9.4, LENDER
SHALL NOT ENFORCE THE LIABILITY AND OBLIGATION OF BORROWER TO PERFORM AND