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Owner, its officers, agents, employees, subcontractors,predecessors in interest, successors,
<br /> assigns and independent contractors for any violation of any federal, state or local law, ordinance
<br /> or regulation relating to industrial hygiene or to environmental conditions on,under or about the
<br /> Property, including,but not limited to, soil and groundwater conditions, and Owner shall defend,
<br /> at its expense, including attorneys' fees, City,its officers, agents and employees in any action
<br /> based or asserted upon any such alleged act or omission. City may in its discretion participate in
<br /> the defense.
<br /> 8.3. Reservation of Rights. With respect to Section 8.1 and Section 8.2 herein, City reserves,
<br /> the right to either(1)approve the attorney(s)that the indemnifying party selects,hires or
<br /> otherwise engages to defend the indemnified party hereunder,which approval shall not be
<br /> unreasonably withheld, conditioned, or delayed; or(2) conduct its own defense;provided,
<br /> however,that the indemnifying party shall reimburse the indemnified party forthwith for any and
<br /> all reasonable expenses incurred for such defense, including attorneys' fees,upon billing and
<br /> accounting therefor.
<br /> 8.4. Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement,
<br /> Owner, on behalf of itself and its successors in interest,hereby expressly agrees and covenants
<br /> not to sue or otherwise challenge any land use approval affecting the Property and in effect as of
<br /> the Effective Date. Such agreement and covenant includes, without limitation,the covenant
<br /> against any direct suit by Owner or its successor in interest, or any participation, encouragement
<br /> or involvement whatsoever that is adverse to City by Owner or its successor in interest,other than
<br /> as part of required response to lawful orders of a court or other body of competent jurisdiction.
<br /> Owner hereby expressly waives, on behalf of itself and its successors in interest, any claim or
<br /> challenge to any land use approval affecting the Property and in effect as of the Effective Date.
<br /> 8.5. Survival. The provisions of Sections 8.1 and 8.2 shall survive the termination of this
<br /> Agreement.
<br /> 9. MORTGAGEE PROTECTION.
<br /> 9.1. The parties hereto agree that this Agreement shall not prevent or limit Owner, in any
<br /> manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any
<br /> improvement thereon by any mortgage, deed of trust or other security device securing financing
<br /> with respect to the Property. City acknowledges that the lenders providing such financing may
<br /> require certain Agreement interpretations and modifications and agrees upon request, from time
<br /> to time,to meet with Owner and representatives of such lenders to negotiate in good faith any
<br /> such request for interpretation or modification. City will not unreasonably withhold its consent to
<br /> any such requested interpretation or modification provided such interpretation or modification is
<br /> consistent with the intent and purposes of this Agreement. In furtherance of the foregoing,and
<br /> notwithstanding anything stated to the contrary in this Agreement,any Mortgagee of the Property
<br /> shall be entitled to the following rights and privileges:
<br /> 9.1.1. Default under Agreement Does Not Impair Lien of any Mortgage.Neither
<br /> entering into this Agreement nor a breach of this Agreement shall defeat,render invalid,
<br /> diminish or impair the lien of any mortgage on the Property,the Leasehold Estate,or any Sub
<br /> Leasehold Estate made in good faith and for value,unless otherwise required by law.
<br /> 9.1.2. Request for Notices of Default by Mortgagee. The Mortgagee of any mortgage
<br /> or deed of trust encumbering the Property,the Leasehold Estate, or Sub Leasehold Estate, or any
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