SHALL REMAIN LIABLE TO THE EXTENT OTHERWISE PROVIDED HEREUNDER
IN RESPECT OF ANY HAZARDOUS SUBSTANCES LOCATED ON THE PROPERTY OR OTHER
VIOLATION OF ENVIRONMENTAL LAW OR REMEDIATION REQUIRED AT THE PROPERTY AS
REFLECTED IN SUCH UPDATED PHASE I ENVIRONMENTAL REPORT; AND PROVIDED, FURTHER
HOWEVER, THAT THE INDEMNIFICATION OBLIGATIONS OF INDEMNITOR UNDER THIS AGREEMENT
SHALL NONETHELESS SURVIVE AS TO ANY CLAIMS, ACTIONS, LITIGATION, OR OTHER
PROCEEDINGS THAT ARE THEN PENDING OR SUBJECT TO FURTHER APPEAL AS OF THE SECOND
(2ND) ANNIVERSARY OF SUCH REPAYMENT IN FULL OR TAKING OF TITLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, INDEMNITOR SHALL NOT
BE DEEMED LIABLE AND SHALL NOT BE REQUIRED TO INDEMNIFY ANY INDEMNIFIED PARTY
FOR ANY MATTER HEREUNDER TO THE EXTENT THE SAME ARISES FROM (A) HAZARDOUS
SUBSTANCES THAT ARE FIRST INTRODUCED TO OR AT THE PROPERTY, OR OTHER LIABILITIES
ARISING FROM ANY ACTS, EVENTS OR CIRCUMSTANCES THAT OCCUR, FOLLOWING THE DATE ON
WHICH ADMINISTRATIVE AGENT, LENDER OR A PERSON THAT IS NOT AN AFFILIATE OF
BORROWER OR GUARANTOR ACQUIRES TITLE TO THE PROPERTY, WHETHER THROUGH
FORECLOSURE, PRIVATE POWER OF SALE OR THE DELIVERY OF A DEED-IN-LIEU OF
FORECLOSURE, EXCEPT WITH RESPECT TO ACTS TAKEN BY INDEMNITOR OR ANY AFFILIATE OF
THE FOREGOING OR ANY OF THEIR RESPECTIVE AGENTS OR CONTRACTORS PRIOR TO, ON OR
AFTER SUCH DATE OR (B) THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD OF ANY
INDEMNIFIED PARTY OR ANY AFFILIATE THEREOF.
FURTHERMORE, EXCEPT AS EXPRESSLY
LIMITED BY THIS PARAGRAPH, SUCH INDEMNIFICATION OBLIGATIONS SHALL IN NO WAY BE
IMPAIRED BY ANY EXERCISE OF ANY INDEMNIFIED PARTY'S RIGHTS AND REMEDIES PURSUANT
HERETO, INCLUDING, BUT NOT LIMITED TO, FORECLOSURE, ACCEPTANCE OF A DEED-IN-LIEU
OF FORECLOSURE, ANY EXERCISE OF ANY RIGHTS UNDER THE NOTE OR MORTGAGE OR ANY ACT
OR OMISSION THAT MIGHT OTHERWISE BE CONSTRUED AS A RELEASE OR DISCHARGE OF
INDEMNITOR FROM ITS OBLIGATIONS PURSUANT THERETO.
11.
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.
12.
WAIVERS.
(A)
INDEMNITOR HEREBY WAIVES (I) ANY RIGHT OR CLAIM
OF RIGHT TO CAUSE A MARSHALING OF INDEMNITOR'S ASSETS OR TO CAUSE ADMINISTRATIVE
AGENT, LENDERS, OR OTHER INDEMNIFIED PARTIES TO PROCEED AGAINST ANY OF THE
SECURITY FOR THE LOAN BEFORE PROCEEDING UNDER THIS AGREEMENT AGAINST INDEMNITOR;
(II) AND RELINQUISHES ALL RIGHTS AND REMEDIES ACCORDED BY APPLICABLE LAW TO
INDEMNITORS OR GUARANTORS, EXCEPT ANY RIGHTS OF SUBROGATION WHICH INDEMNITOR MAY
HAVE, PROVIDED THAT
9
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
Administrative Agent, any Lender, or other Indemnified Parties; (iii) the right
to assert a counterclaim, other than a mandatory or compulsory counterclaim, in