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for the benefit of the Indemnified Parties, including any purchaser at a foreclosure or other sale
<br /> under Mortgage, any transferee of the title from Lender, and any subsequent owner of the
<br /> Property, and shall survive the satisfaction or release of the Mortgage, any foreclosure of or other
<br /> sale under the Mortgage and/or any acquisition of title to the Property or any part thereof by
<br /> Lender, or anyone claiming by, through or under Lender, by deed in lieu of foreclosure or
<br /> otherwise, and also shall survive the repayment or any other satisfaction of the Loan.
<br /> Notwithstanding the foregoing, the indemnity contained in this paragraph 4 shall not apply with
<br /> respect to any loss, damage, liability, cost or expense which Borrower proves by a
<br /> preponderance of the evidence was caused solely by or resulted solely from any act or omission
<br /> of any person, other than the Borrower or an agent, employee, invitee, guarantor, or contractor of
<br /> the Borrower, which occurred after Lender or anyone claiming by, through or under Lender
<br /> acquired title to the Property by foreclosure of Mortgage or deed in lieu of foreclosure or
<br /> otherwise and control of the Property. Any amounts covered by the foregoing indemnification
<br /> shall bear interest from the date incurred at the rate set forth in the promissory note evidencing
<br /> the Loan, and shall be payable on demand. Borrower agrees that its obligations under this
<br /> Agreement are separate from, independent of, and in addition to its obligations, if any, under the
<br /> Mortgage and other documents which secure the Loan.
<br /> 5. Liability. The liability of Borrower under this Agreement shall not be subject to
<br /> any limitations on liability set forth any document evidencing or securing the Loan. Without
<br /> limitation, the obligations and liability of Borrower under this Agreement shall in no way be
<br /> waived,released, discharged, reduced,mitigated or otherwise affected by Lender's making of the
<br /> Loan with knowledge of the matters described in documents identified on Exhibit A attached
<br /> hereto, or of the presence of any Hazardous Substance on, in, about or under the Property or any
<br /> property adjoining or in the vicinity of the Property, or of any violation of any Environmental
<br /> Regulation or any condition or state of facts or circumstances which with notice or lapse of time
<br /> or both might ripen into such a violation, or by any neglect, delay or forbearance of Lender in
<br /> demanding, requiring or enforcing payment or performance of the obligations and liability of
<br /> Borrower hereunder, or by the receivership, bankruptcy, insolvency or dissolution of Borrower
<br /> or any affiliate thereof. No action or proceeding brought or instituted under this Agreement, and
<br /> no recovery made as a result thereof, shall be a bar or a defense to any further action or
<br /> proceeding under any other agreement. Borrower shall reimburse Lender and the other
<br /> Indemnified Parties for all attorneys' fees and expenses incurred in connection with the
<br /> enforcement of the Indemnified Parties' rights under this Agreement, including those incurred in
<br /> any case, action, proceeding or claim under the Federal Bankruptcy Code or any successor
<br /> statute.
<br /> 6. Notices. Any notice or other communication to any party in connection with this
<br /> Agreement shall be in writing and shall be sent in accordance with the provisions of the Loan
<br /> Agreement.
<br /> 7. Governing Law and Construction. The validity, construction and enforceability
<br /> of this Agreement shall be governed by the laws of the State of Minnesota, without giving effect
<br /> to conflict of laws or principles thereof, but giving effect to federal laws of the United States
<br /> applicable to national banks. Whenever possible, each provision of this Agreement and any
<br /> other statement, instrument or transaction contemplated hereby or relating hereto, shall be
<br /> interpreted in such manner as to be effective and valid under such applicable law, but, if any
<br /> 5
<br /> 477383v1 MJM EL185-40
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