The Mortgagor agrees to release and indemnify the Mortgagee against, and hold the Mortgagee harmless from, any and all losses, claims, damages liabilities and related expenses, including the fees, charges and disbursements of any counsel for the Mortgagee, incurred by or asserted against any of them arising out of, in connection with, or as a result of the execution or delivery of this Mortgage or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the transactions contemplated hereby, any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation or proceeding is brought Mortgagor, any equity holders of Mortgagor, any Affiliates of Mortgagor, any creditors of Mortgagor or any other third person and whether based on contract, tort or any other theory and regardless of whether the Mortgagee is a party thereto; provided that such indemnity shall not be available (a) to the extent that such losses, claims, damages liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Mortgagee; or (b) to the extent such indemnity is prohibited by §56-7-1 NMSA 1978 or §56-7-2 NMSA 1978. All court costs, attorneys' fees and other expenses of every character expended by the Mortgagee pursuant to the provisions of this section shall be a demand obligation (which obligation Mortgagor hereby expressly promises to pay) owing by Mortgagor to Mortgagee and shall bear interest, from the date expended until paid, at the rate described in Section 10.1 hereof.