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201400400 to address matters raised in the Environmental Report and/or a "Phase I" or "Phase II" assessment, (iv) subject to the terms of the Lease, access to the Mortgaged Property, by Lender, its agents or servicer, to review and assess the environmental condition of the Mortgaged Property and Borrower's compliance with any operations and maintenance program, and (v) variation of the operations and maintenance program in response to the reports provided by any such consultants. (f) If any action shall be brought against Lender based upon any of the matters for which Lender is indemnified under this paragraph 32, Lender shall notify Borrower in writing thereof and Borrower shall, or shall cause Lessee to, promptly assume the defense thereof, including, without limitation, the employment of counsel and the negotiation of any settlement; provided, however, that any failure of Lender to notify Borrower of such matter shall not impair or reduce the obligations of Borrower hereunder, except to the extent that the defense of such action is prejudiced by such failure to notify. Lender shall have the right, at Lender's expense, to employ separate counsel in any such action and to participate in the defense thereof. In the event Borrower shall fail to discharge or undertake to defend Lender against any claim, loss or liability for which Lender is indemnified hereunder, Lender may, at its sole option and election, defend or settle such claim, loss or liability. The liability of Borrower to Lender hereunder shall be conclusively established by such settlement, provided such settlement is made in good faith, the amount of such liability to include both the settlement consideration and the costs and expenses, including, without limitation attorney's fees and disbursements, incurred by Lender in effecting such settlement. In such event, such settlement consideration, costs and expenses shall be included in costs described in subparagraph (c) above, shall bear interest at the Default Rate, and Borrower shall pay the same as provided in this paragraph 32. 33. Intentionally Omitted . 34. Handicapped Access. (a) Subject to Lessee's rights of contest set forth in the Lease, Borrower agrees that the Mortgaged Property shall at all times strictly comply, to the extent applicable, with the requirements of the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of 1988, all state and local laws and ordinances related to handicapped access and all rules, regulations, and orders issued pursuant thereto including, without limitation, the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (collectively "Access Laws "). (b) Notwithstanding any provisions set forth herein or in any other document regarding Lender's approval of alterations of the Mortgaged Property, except for alterations permitted and made in accordance with the terms of the Lease, Borrower shall not alter or permit the Mortgaged Property to be altered in any manner which would increase Borrower's responsibilities for compliance with the applicable Access Laws without the prior written approval of Lender. Lender may condition any such approval upon receipt of a certificate of Access Law compliance from an architect, engineer, or other person acceptable to Lender. - 58 -