Environmental Indemnity Agreement

LOAN NO. C-332628


ENVIRONMENTAL INDEMNITY AGREEMENT


THIS ENVIRONMENTAL INDEMNITY AGREEMENT is entered into as of October 24, 2001 by the undersigned ("Indemnitors") in favor of The Northwestern Mutual Life Insurance Company ("Northwestern") and the other Indemnified Parties referred to herein.


RECITALS


A. Northwestern is contemporaneously herewith making a loan (the "Loan") to Next Level Communications, Inc., a Delaware corporation ("Borrower") secured or to be secured by a Mortgage, Deed to Secure A Debt or Deed of Trust and Security Agreement from Borrower in favor of Northwestern (the "Lien Instrument") on the fee title and/or leasehold interest in the Property described in Exhibit "A" attached hereto (the Lien Instrument and all other agreements, certificates and documents (as they may be amended from time to time) at any time executed by or for the benefit of Borrower in connection with the Loan, other than this Environmental Indemnity Agreement, hereinafter, collectively, the "Loan Documents").


B. In order to induce Northwestern to make the Loan, Indemnitors have agreed to execute and deliver this Environmental Indemnity Agreement.


C. Each of the Indemnitors has a substantial direct or indirect interest in the Property, financial or otherwise.


AGREEMENT


NOW, THEREFORE, in consideration of the recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitors hereby agree and covenant for the benefit of Northwestern and the other Indemnified Parties as follows:


1. The following definitions shall apply to this Environmental Indemnity Agreement:


(a) "Environmental Activity or Condition" means the presence, use, generation, manufacture, production, storage, release, threatened release, discharge, disposal or transportation of any Hazardous Substance on, onto, in, under, over or from the Property or the violation of any Environmental Law because of the condition of, or activity on, the Property.


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(b) "Environmental Law" means all law relating to hazardous waste, chemical substances or mixtures or hazardous, toxic, dangerous or unhealthy substances or conditions or relating to the interaction of the use or ownership of property and the environment, whether such law is: (i) criminal or civil, (ii) federal, state or local, (iii) statutory, common law or administrative regulation, or (iv) currently in effect or enacted in the future.


(c) "Hazardous Substance" means any substance which (i) is designated or characterized as hazardous, toxic or dangerous or similarly designated or characterized under any Environmental Law, (ii) is regulated under any Environmental Law or by any governmental or quasi-governmental agency, or (iii) could be a hazard to health, safety or property values. Without limiting the foregoing, Hazardous Substances shall include underground storage tanks and the contents thereof, asbestos, urea formaldehyde insulation, polychlorinated biphenyls, dioxins and petroleum products.


(d) "Property" means the property described in Exhibit "A" attached hereto, including the soil, surface water, ground water, air and improvements on, beneath or above such property.


2. Indemnitors hereby agree to indemnify, defend and hold Northwestern and its wholly-owned affiliates and their respective trustees, officers, policyholders, employees and agents (collectively, the "Indemnified Parties") harmless from and against any and all damages, liabilities, losses, costs and expenses, including reasonable attorneys' fees, (collectively, "Damages") suffered or incurred by any of the Indemnified Parties as a result of any Environmental Activity or Condition which would not have been suffered or incurred if Northwestern had not made the Loan; provided that Indemnitors shall have no liability for Damages arising from or caused by the negligence or willful misconduct of any Indemnified Party or any of its employees. The liability of Indemnitors as set forth in the preceding sentence includes, without limitation, the following:


(a) Any costs of, or liability for, i nvestigation, cleanup, removal, treatment, remediation or monitoring of any Hazardous Substance;


(b) Any damages resulting from the diminution in value or unmarketability of the Property or any other property caused by such Environmental Activity or Condition;


(c) Any consequential or punitive damages suffered or incurred by any of the Indemnified Parties as a result of such Environmental Activity or Condition;


(d) Any fines, penalties, assessments, judgments or other liabilities resulting from any claim, judgment or finding concerning the violation of any Environmental Law; and


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(e) Any amounts expended by any of the Indemnified Parties in good faith to settle or compromise any claim or allegation of liability covered by this Environmental Indemnity Agreement, provided that so long as the Specified Conditions (defined below) are satisfied, the Indemnified Parties shall not settle or compromise any such claims or allegations without the prior written consent of the Indemnitors, which consent shall not be unreasonably withheld or delayed.


The liability of Indemnitors hereunder shall continue, without reduction or change, upon and subsequent to Northwestern becoming owner of the Property through foreclosure, deed-in-lieu of foreclosure or otherwise, excepting only Damages resulting from actions taken either by Northwestern, by successive owners of the Property acquiring title from or through Northwestern or by those contracting with Northwestern or any such successive owner, subsequent to Northwestern becoming owner of the Property; provided, however, that Indemnitors shall nonetheless be responsible for the actions of any party investigating or cleaning up Hazardous Substances, whether or not contracted for by Northwestern, if Indemnitors are otherwise liable hereunder or otherwise for such investigation or clean up. The liability of Indemnitors hereunder shall not be reduced or otherwise affected by any Environmental Activity or Condition occurring or existing prior to Northwestern becoming owner of the Property even if caused in whole or part by a predecessor in title, tenant, trespasser or other third person, whether on or off of the Property.


3. The liability of Indemnitors under this Environmental Indemnity Agreement (i) shall not be subject to any limitations on liability set forth in any of the documents evidencing the Loan, and (ii) shall be an unsecured obligation of Indemnitors to each of the Indemnified Parties, notwithstanding the terms of the Lien Instrument or any other agreement.


4. Without limitation, the obligations and liability of any Indemnitor under this Environmental Indemnity Agreement shall in no way be waived, released, discharged, reduced, mitigated or otherwise affected by:


(a) The repayment of the Loan and/or the satisfaction or release, invalidity, defect or deficiency of the Lien Instrument or any other Loan Document, and notwithstanding any act, omission or thing which might otherwise operate as a legal or equitable discharge of the Borrower, any other Indemnitor or any guarantor of the Loan; or


(b) Any neglect, delay or forbearance of Northwestern in demanding, requiring or enforcing payment of the indemnity due hereunder; or


(c) The receivership, bankruptcy, insolvency or dissolution of Borrower or any Indemnitor or any ...