Common use of Allocation of Risks and Indemnity Clause in Contracts

Allocation of Risks and Indemnity. As between Borrower and Administrative Agent and each Lender, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projects, shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by law. Borrower shall indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, or (f) the imposition of any environmental lien encumbering the Projects; provided, however, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Borrower’s obligations under this Section 4.3 shall arise whether or not any Governmental Authority has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and shall continue notwithstanding the repayment of the Loan or any transfer or sale of any right, title and interest in any Project (by foreclosure, deed in lieu of foreclosure or otherwise).

Allocation of Risks and Indemnity. (1) As between Borrower and the Borrowers, the Administrative Agent and each Lenderthe Lenders, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projects, any Individual Property shall lie solely with Borrowerthe Borrowers. Accordingly, Borrower the Borrowers shall bear all risks and costs associated with any loss (but not including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by the Administrative Agent pursuant to this Agreement or by law. Borrower The Borrowers shall indemnify, defend and hold the Administrative Agent and each Lender the Lenders and their respective shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, costs and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental LawsLaws at, upon, within, contiguous to or adjacent to any Individual Property or otherwise relating to the Loans; (b) the existence of Hazardous Materials in, on, about, contiguous to, or about the Projectsadjacent to, any Individual Property; (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous MaterialsMaterials in, on, about, contiguous to, or adjacent to, any Individual Property; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, ; or (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent, or (f) comparative negligence of the imposition of any environmental lien encumbering Administrative Agent and the Projects; provided, however, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionLenders. Borrower’s The Borrowers’ obligations under this Section 4.3 4.4(1) shall arise upon the discovery of the presence of any such Hazardous Materials, whether or not any Governmental Authority governmental authority has taken or threatened any action in connection with the presence of any such Hazardous MaterialMaterials, and whether or not the existence of any such Hazardous Material Materials or potential liability on account thereof is disclosed in the Site Assessment and and, except as expressly provided in this Section 4.4(1), shall continue notwithstanding the repayment of the Loan Loans or any transfer or sale of any right, title and interest in any Project Individual Property (by foreclosure, deed in lieu of foreclosure or otherwise). Notwithstanding the foregoing provision regarding the survival of the Borrowers’ indemnity obligations under this Section: (x) if the Loan is repaid in full in accordance with the terms and conditions of the Loan Documents and the Mortgages encumbering each Individual Property are released and discharged or if an Immediate Release Property or an Other Release Property is released from the lien of the Mortgage encumbering said Individual Property pursuant to Sections 2.8 or 2.7(2), respectively, the Borrowers may deliver to the Administrative Agent a new Site Assessment for the Individual Property(ies) in question and the Borrowers’ indemnification obligations under this Section 4.4 with respect to the Individual Property(ies) released from the lien of the Mortgage(s) shall expire one year following the date of the delivery of the Site Assessments to the Administrative Agent if and only if there are no pending or threatened claims relating to Hazardous Materials at said Individual Properties at the end of said one year period, and the Administrative Agent confirms in writing that the Site Assessment has been approved by the Administrative Agent (which approval shall not be unreasonably withheld) and does not raise any issues with respect to potential environmental liability with respect to said Individual Properties; provided, however, if the Administrative Agent disapproves the Site Assessment, Borrower’s liability for any claims, potential claims and risks not otherwise identified in said Site Assessment shall expire one (1) year after the delivery of such Site Assessment to the Administrative Agent; and (y) the Borrowers’ indemnification obligations under this Section 4.4 shall not extend to Hazardous Materials first present on an Individual Property after (or the violation of an Environmental Law first occurring after) the Administrative Agent or its designee takes title to said Individual Property by foreclosure or by its acceptance of a deed in lieu of foreclosure provided (A) such Hazardous Materials were placed, deposited or released in, on or under the Premises after the date of foreclosure or deed in lieu of foreclosure by third parties unrelated in any way to Borrowers or any person or entity affiliated with or having an interest in any Borrower or a partner, member or manager of any Borrower and (B) such placement, deposit or release was not caused by and does not result from the acts or omissions of any Borrower, any partner, member or manager of any Borrower or any person or entity having a direct or indirect interest in any Borrower or partner or member of any Borrower. This indemnification shall inure to the benefit of any Affiliate of the Administrative Agent or any Lender that takes title to one or more Individual Properties pursuant to a foreclosure or the acceptance of a deed in lieu of foreclosure but shall not benefit any third party purchaser of an Individual Property from the Administrative Agent, any Lender or any Affiliate of the Administrative Agent or any Lender. Notwithstanding the foregoing, with respect to an Individual Property located in the State of Arizona, this indemnity shall survive payment of the Notes (subject, however, to the time limitation on a Borrower’s liability for claims as set forth in the preceding paragraph), but shall become null and void and of no further force or effect with respect only to such Individual Property in the event the Administrative Agent, the beneficiary under the applicable Mortgage, or any other party obtains title to such Individual Property through foreclosure or exercises a power of sale under the applicable Mortgage or deed in lieu of foreclosure or exercise of power of sale. This indemnity shall remain in full force and effect with respect to all other Properties securing the Loan.

Allocation of Risks and Indemnity. As between Borrower and Borrowers, Administrative Agent and each Lenderthe Lenders, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projectsany Project, shall lie solely with BorrowerBorrowers. Accordingly, Borrower Borrowers shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by law. Borrower Borrowers shall jointly and severally indemnify, defend and hold Administrative Agent and each Lender the Lenders and their respective shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projectsany Project, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; , (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a any breach of any representation, warranty or covenant contained in this Article 45, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent, or comparative negligence of Administrative Agent; or (f) the imposition of any environmental lien Lien encumbering the Projectsany Project; provided, however, Borrower Borrowers shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified PersonAdministrative Agent’s or any Lender’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Borrower’s Borrowers’ obligations under this Section 4.3 5.4 shall arise upon the discovery of the presence of any Hazardous Materials, whether or not any Governmental Authority governmental authority has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and shall continue notwithstanding the repayment of the Loan Loans or any transfer or sale of any right, title and interest in any the Project in question (by foreclosure, deed in lieu of foreclosure or otherwise). Additionally, if any Hazardous Materials affect or threaten to affect any Project, Administrative Agent may (but shall not be obligated to) give such notices and take such actions as it deems necessary or advisable at the expense of the Borrowers in order to axxxx the discharge of any Hazardous Materials or remove the Hazardous Materials. Any amounts payable to Administrative Agent by reason of the application of this Section 5.4 shall become immediately due and payable and shall bear interest at the Default Rate from the date loss or damage is sustained by Administrative Agent until paid. The obligations and liabilities of Borrowers under this Section 5.4 shall survive any termination, satisfaction, assignment, entry of a judgment of foreclosure or delivery of a deed in lieu of foreclosure.

Allocation of Risks and Indemnity. As between Borrower Borrowers and Administrative Agent and each Lender, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projects, shall lie solely with BorrowerBorrowers. Accordingly, Borrower Borrowers shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by law. Borrower Borrowers shall indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, or (f) the imposition of any environmental lien encumbering the Projectsany Project; provided, however, Borrower Borrowers shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Borrower’s Borrowers’ obligations under this Section 4.3 shall arise whether or not any Governmental Authority has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the any Site Assessment and shall continue notwithstanding the repayment of the Loan or any transfer or sale of any right, title and interest in any Project (by foreclosure, deed in lieu of foreclosure or otherwise).

Allocation of Risks and Indemnity. 5.1 As between Borrower and Administrative Agent and each Lender, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the ProjectsProject, shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by law. Notwithstanding any limitations contained in Section 13.16 of the Loan Agreement with respect to consequential damages, Borrower shall at all times indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents harmless from and against any and all lossclaims, suits, actions, debts, damages, losses, liabilities, damageslitigations, claimsjudgments, charges, costs and expenses (including reasonable costs of defense and consultant feesdefense), investigation and laboratory feesof any nature whatsoever proffered or incurred by Lender, court costswhether as mortgagee or beneficiary under the Mortgage, as mortgagee in possession, or as successor-in-interest to Borrower by foreclosure deed or deed in lieu of foreclosure, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent or comparative negligence of Lender, under or on account of the Environmental Laws, including the assertion of any lien thereunder, with respect to: (a) a breach of any representation, warranty or covenant of Borrower contained in this Agreement; (b) any acts performed by Lender pursuant to the provisions of this Agreement; (c) any discharge of Hazardous Materials, the threat of discharge of any Hazardous Materials or the storage or presence of any Hazardous Materials affecting the Project whether or not the same originates or emanates from the Project or any contiguous real estate, including any loss of value of the Project as a result of the foregoing; (d) any costs of removal or remedial action incurred by the United States Government or any costs incurred by any other Person or damages from injury to, destruction of, or loss of natural resources including reasonable costs of assessing such injury, destruction or loss incurred pursuant to any Environmental Laws; (e) liability for personal injury or property damage arising under any statutory or common law tort theory, including without limitation damages assessed for the maintenance of a public or private nuisance or for the carrying on of an abnormally dangerous activity at, upon, under or within the Project; and/or (f) any other environmental matter affecting the imposition Project within the jurisdiction of the Environmental Protection Agency, any other federal agency or any state or local environmental lien encumbering the Projects; provided, howeveragency. The foregoing notwithstanding, Borrower shall not be liable under such the foregoing indemnification to the extent any such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s Lender's gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Borrower’s 's obligations under this Section 4.3 Agreement shall arise upon the discovery of the presence of any Hazardous Material, whether or not the Environmental Protection Agency, any Governmental Authority other federal agency or any state or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Material, Materials and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment Assessment, and shall continue notwithstanding the repayment of the Loan or any transfer or sale of any right, title and interest in any the Project (by foreclosure, deed in lieu of foreclosure or otherwise). Notwithstanding the foregoing, subject to the conditions specified below in this Section 5.1, Borrower shall not be liable under this Section 5.1 for such indemnified matters directly created or arising from (x) events or conditions caused or created by Lender or (y) Hazardous Materials first existing after Lender acquires title to the Project by foreclosure or acceptance of a deed in lieu thereof, but only if (i) Borrower delivers to Lender, not more than ninety (90) days and not less than thirty (30) days prior to the date Lender acquires title to the Project, a current Site Assessment evidencing (A) the presence of no Hazardous Materials on the Project other than those Hazardous Materials identified in the Initial Site Assessment or in any subsequent Site Assessment previously delivered to Lender pursuant to Section 2.3(3)(g) or at Lender's request and approved by Lender (provided that as to any Hazardous Materials reflected in the Initial Site Assessment or subsequent Site Assessment, none shall have spread or worsened in any manner or otherwise impaired or adversely affected the Project) and (B) no violation of any Environmental Laws with respect to the Project, and (ii) such loss, liability, damage, claim, cost or expense does not directly or indirectly arise from or relate to any release of or exposure to any Hazardous Material (including personal injury or damage to property), non-compliance with any Environmental Laws, or remediation existing or occurring prior to the date Lender acquires title to the Project.

Allocation of Risks and Indemnity. As between Borrower Borrower, Lender and Administrative Agent and each LenderIndemnitor, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projectsany Individual Property, shall lie solely with BorrowerBorrower and Indemnitor. Accordingly, Borrower and Indemnitor shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent Lender or by law. Borrower shall indemnify, defend and hold Administrative Agent and each Lender and their respective its shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expenses) arising out of or associated, in any way, with (a) the non-non- compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projectsany Individual Property, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 46, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, or (f) the imposition of any environmental lien encumbering the Projectsany Individual Property; provided, however, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s Lender's gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Borrower’s 's obligations under this Section 4.3 6.4 shall arise whether or not any Governmental Authority governmental authority has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and shall continue notwithstanding the repayment of the Loan or any transfer or sale of any right, title and interest in any Project Individual Property (by foreclosure, deed in lieu of foreclosure or otherwise). Additionally, if any Hazardous Materials affect or threaten to affect the Properties, Lender may (but shall not be obligated to) give such notices and take such actions as it deems reasonably necessary or advisable at the expense of the Borrower in order to xxxxx the discharge of any Hazardous Materials or remove the Hazardous Materials. Any amounts payable to Lender by reason of the application of this Section 6.4 shall become immediately due and payable and shall bear interest at the Default Rate from the date loss or damage is sustained by Lender until paid. The obligations and liabilities of Borrower under this Section 6.4 shall survive any termination, satisfaction, assignment, entry of a judgment of foreclosure or delivery of a deed in lieu of foreclosure.

Allocation of Risks and Indemnity. As between Borrower and Administrative Agent and each Lender, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projects, shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by law. Borrower shall indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, or (f) the imposition of any environmental lien encumbering the Projects; provided, however, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Borrower’s obligations under this Section 4.3 shall arise whether or not any Governmental Authority has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and shall continue notwithstanding the repayment of the Loan or any transfer or sale of any right, title and interest in any Project (by foreclosure, deed in lieu of foreclosure or otherwise).. [Summit Healthcare] 45

Allocation of Risks and Indemnity. As between Borrower and Borrower, Administrative Agent and each Lenderthe Lenders, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the ProjectsProject, shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials)Environmental Loss, damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent this Agreement or any of the other Loan Documents or by law. Borrower shall indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents the Lenders harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expensesdefense) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reachedProject, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 45, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent, or (f) comparative negligence of Administrative Agent and the imposition of any environmental lien encumbering the ProjectsLenders; provided, however, Borrower shall not be liable under 65­ such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person(i) is caused or created by Administrative Agent’s or any Lender’s gross negligence or willful misconduct as determined (ii) arises from events or conditions first occurring after Administrative Agent or any of the Lenders acquires title to the Project and which (a) were not at all undertaken, caused, contributed to, authorized or permitted by a final non-appealable judgment Borrower, Guarantor or their respective Affiliates (including any of a court their respective employees, agents, contractors, subcontractors, tenants and invitees) and (b) do not relate and are not attributable to any conduct occurring or conditions existing at the Project prior to such acquisition of competent jurisdictiontitle. Borrower’s obligations under this Section 4.3 5.4 (x) shall arise upon the discovery of the presence of any Hazardous Material, whether or not any Governmental Authority has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and (y) shall continue notwithstanding the repayment of the Loan Loans or any transfer or sale of any right, title and interest in any the Project (by foreclosure, deed in lieu of foreclosure or otherwise); provided, however, that if the Loans are repaid in full or Administrative Agent or any of the Lenders or any of their designees or a purchaser at a foreclosure sale obtains title to the Project (by foreclosure, deed in lieu of foreclosure or otherwise), Borrower’s obligations under this Section 5.4 shall terminate upon the earlier of (A) the date that Borrower delivers a new Site Assessment indicating that the Project is free and clear of all Hazardous Materials (except for any Hazardous Materials (1) to the extent disclosed pursuant to the Site Assessment delivered to Administrative Agent in connection with the closing of the Loans or (2) introduced at the Project as a result of Administrative Agent’s or any Lender’s gross negligence or willful misconduct) and (B) the date that is five (5) years after the date of such repayment or acquisition of title to the Project, provided that Borrower’s obligations under this Section 5.4 shall survive as to any claims, actions, litigation or other proceedings that are then pending or subject to further appeal as of such fifth anniversary.

Allocation of Risks and Indemnity. (1) As between Borrower and the Borrowers, the Administrative Agent and each Lenderthe Lenders, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projects, any Individual Property shall lie solely with Borrowerthe Borrowers. Accordingly, Borrower the Borrowers shall bear all risks and costs associated with any loss (but not including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by the Administrative Agent pursuant to this Agreement or by law. Borrower The Borrowers shall indemnify, defend and hold the Administrative Agent and each Lender the Lenders and their respective shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, costs and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental LawsLaws at, upon, within, contiguous to or adjacent to any Individual Property or otherwise relating to the Loans; (b) the existence of Hazardous Materials in, on, about, contiguous to, or about the Projectsadjacent to, any Individual Property; (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous MaterialsMaterials in, on, about, contiguous to, or adjacent to, any Individual Property; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, ; or (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent, or (f) comparative negligence of the imposition of any environmental lien encumbering Administrative Agent and the Projects; provided, however, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionLenders. Borrower’s The Borrowers’ obligations under this Section 4.3 4.4(1) shall arise upon the discovery of the presence of any such Hazardous Materials, whether or not any Governmental Authority governmental authority has taken or threatened any action in connection with the presence of any such Hazardous MaterialMaterials, and whether or not the existence of any such Hazardous Material Materials or potential liability on account thereof is disclosed in the Site Assessment and and, except as expressly provided in this Section 4.4(1). shall continue notwithstanding the repayment of the Loan Loans or any transfer or sale of any right, title and interest in any Project Individual Property (by foreclosure, deed in lieu of foreclosure or otherwise). Notwithstanding the foregoing provision regarding the survival of the Borrowers’ indemnity obligations under this Section: (x) if the Loan is repaid in full in accordance with the terms and conditions of the Loan Documents and the Mortgages encumbering each Individual Property are released and discharged or if a Release Property is released from the lien of the Mortgage encumbering said Individual Property pursuant to Sections 2.8 or 2.7(2), respectively, the Borrowers may deliver to the Administrative Agent a new Site Assessment for the Individual Property(ies) in question and the Borrowers’ indemnification obligations under this Section 4.4 with respect to the Individual Property(ies) released from the lien of the Mortgage(s) shall expire one year following the date of the delivery of the Site Assessments to the Administrative Agent if and only if there are no pending or threatened claims relating to Hazardous Materials at said Individual Properties at the end of said one year period, and the Administrative Agent confirms in writing that the Site Assessment has been approved by the Administrative Agent (which approval shall not be unreasonably withheld) and does not raise any issues with respect to potential environmental liability with respect to said Individual Properties; provided, however, if the Administrative Agent disapproves the Site Assessment, Borrower’s liability for any claims, potential claims and risks not otherwise identified in said Site Assessment shall expire one (1) year after the delivery of such Site Assessment to the Administrative Agent; and (y) the Borrowers’ indemnification obligations under this Section 4.4 shall not extend to Hazardous Materials first present on an Individual Property after (or the violation of an Environmental Law first occurring after) the Administrative Agent or its designee takes title to said Individual Property by foreclosure or by its acceptance of a deed in lieu of foreclosure provided (A) such Hazardous Materials were placed, deposited or released in, on or under the Premises after the date of foreclosure or deed in lieu of foreclosure by third parties unrelated in any way to Borrowers or any person or entity affiliated with or having an interest in any Borrower or a partner, member or manager of any Borrower and (B) such placement, deposit or release was not caused by and does not result from the acts or omissions of any Borrower, any partner, member or manager of any Borrower or any person or entity having a direct or indirect interest in any Borrower or partner or member of any Borrower. This indemnification shall inure to the benefit of any Affiliate of the Administrative Agent or any Lender that takes title to one or more Individual Properties pursuant to a foreclosure or the acceptance of a deed in lieu of foreclosure but shall not benefit any third party purchaser of an Individual Property from the Administrative Agent, any Lender or any Affiliate of the Administrative Agent or any Lender. Notwithstanding the foregoing, with respect to an Individual Property located in the State of Arizona, this indemnity shall survive payment of the Notes (subject, however, to the time limitation on a Borrower’s liability for claims as set forth in the preceding paragraph), but shall become null and void and of no further force or effect with respect only to such Individual Property in the event the Administrative Agent, the beneficiary under the applicable Mortgage, or any other party obtains title to such Individual Property through foreclosure or exercises a power of sale under the applicable Mortgage or deed in lieu of foreclosure or exercise of power of sale. This indemnity shall remain in full force and effect with respect to all other Properties securing the Loan.

Allocation of Risks and Indemnity. As between Borrower and Administrative Agent and each Lender, all risk of loss associated with non-compliance non‑compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the ProjectsProject, shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent Lender or by law. Borrower shall at all times indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents harmless from and against any and all lossclaims, suits, actions, debts, damages, losses, liabilities, damageslitigations, claimsjudgments, charges, costs and expenses (including reasonable costs of defense and consultant feesdefense), investigation and laboratory feesof any nature whatsoever proffered or incurred by Lender, court costswhether as mortgagee or beneficiary under the Mortgages, as mortgagee in possession, or as successor‑in‑interest to Borrower by foreclosure deed or deed in lieu of foreclosure, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent or (f) comparative negligence of Lender, under or on account of the imposition Environmental Laws, including the assertion of any lien thereunder, with respect to: (1) a breach of any representation, warranty or covenant of Borrower contained in this Article 5; (2) any acts performed by Lender pursuant to the provisions of this Article 5; (3) any discharge of Hazardous Materials, the threat of discharge of any Hazardous Materials or the storage or presence of any Hazardous Materials affecting the Project whether or not the same originates or emanates from the Project or any contiguous real estate, including any loss of value of the Project as a result of the foregoing; (4) any costs of removal or remedial action incurred by the United States Government or any costs incurred by any other Person or damages from injury to, destruction of, or loss of natural resources including reasonable costs of assessing such injury, destruction or loss incurred pursuant to any Environmental Laws; (5) liability for personal injury or property damage arising under any statutory or common law tort theory, including without limitation damages assessed for the maintenance of a public or private nuisance or for the carrying on of an abnormally dangerous activity at, upon, under or within the Project; and/or (6) any other environmental lien encumbering matter affecting the Projects; providedProject within the jurisdiction of the Environmental Protection Agency, howeverany other federal agency or any state or local environmental agency. The foregoing notwithstanding, Borrower shall not be liable under such the foregoing indemnification to the extent any such loss, liability, damage, claim, cost or expense results solely from such indemnified PersonLender’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Borrower’s obligations under this Section 4.3 Article 5 shall arise upon the discovery of the presence of any Hazardous Material, whether or not the Environmental Protection Agency, any Governmental Authority other federal agency or any state or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Material, Materials and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment Assessment, and shall continue notwithstanding the repayment of the Loan Loans or any transfer or sale of any right, title and interest in any the Project (by foreclosure, deed in lieu of foreclosure or otherwise). Notwithstanding the foregoing, subject to the conditions specified below in this Section 5.3, Borrower shall not be liable under this Section 5.3 for such indemnified matters directly created or arising from events or conditions caused or created by Lender and first existing after Lender acquires title to the Project by foreclosure or acceptance of a deed in lieu thereof, but only if (a) Borrower delivers to Lender a current site assessment evidencing the presence of no Hazardous Materials on the Project and no violation of any Environmental Laws with respect to the Project not more than ninety (90) days and not less than thirty (30) days prior thereto, and (b) such loss, liability, damage, claim, cost or expense does not directly or indirectly arise from or relate to any release of or exposure to any Hazardous Material (including personal injury or damage to property), non‑compliance with any Environmental Laws, or remediation existing or occurring prior to the date Lender acquires title to the Project.

Allocation of Risks and Indemnity. As between Borrower and Borrower, Administrative Agent and each LenderLenders, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the ProjectsPortfolio or any portion thereof, shall lie solely with BorrowerBorrower unless such non-compliance is caused by the Administrative Agent or the Lenders or which first exists (as distinguished from first discovered) after the Administrative Agent causes Borrower to be defeased of title to the Property in question by any exercise of a remedy provided herein after an Event of Default. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by law. Borrower shall at all times indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents Lenders harmless from and against any and all lossclaims, suits, actions, debts, damages, losses, liabilities, damageslitigations, claimsjudgments, charges, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expensesdefense) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) Portfolio or any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reachedportion thereof, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article ARTICLE 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent, or (f) comparative negligence of Administrative Agent and the imposition Lenders, under or on account of the Environmental Laws, including the assertion of any lien thereunder, with respect to: (1) a breach of any representation, warranty or covenant of Borrower contained in this Article 4; (2) any acts performed by Administrative Agent or any Lender pursuant to the provisions of this Article 4; (3) any discharge of Hazardous Materials, the threat of discharge of any Hazardous Materials or the storage or presence of any Hazardous Materials affecting the Portfolio whether or not the same originates or emanates from the Portfolio or any contiguous real estate, including any loss of value of the Portfolio as a result of the foregoing; (4) any costs of removal or remedial action incurred by the United States Government or any costs incurred by any other Person or damages from injury to, destruction of, or loss of natural resources including reasonable costs of assessing such injury, destruction or loss incurred pursuant to any Environmental Laws; (5) liability for personal injury or property damage arising under any statutory or common law tort theory, including without limitation damages assessed for the maintenance of a public or private nuisance or for the carrying on of an abnormally dangerous activity at, upon, under or within the Portfolio; and/or (6) any other environmental lien encumbering matter affecting the Projects; providedPortfolio within the jurisdiction of the Environmental Protection Agency, howeverany other federal agency or any state or local environmental agency. The foregoing notwithstanding, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified PersonAdministrative Agent’s or the Lender’s gross negligence or willful misconduct as determined by a final non-appealable judgment or actions or inactions of a court Administrative Agent after Borrower is defeased of competent jurisdictiontitle to the Property in question after exercise of any remedy provided for herein after an Event of Default. Borrower’s obligations under this Section 4.3 4.4 shall arise upon the discovery of the presence of any Hazardous Material, whether or not the Environmental Protection Agency, any Governmental Authority other federal agency or any state or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and shall continue notwithstanding the repayment of the Loan Loans or any transfer or sale of any right, title and interest in the Portfolio or any Project portion thereof (by foreclosure, deed in lieu of foreclosure or otherwise).

Allocation of Risks and Indemnity. As between Borrower and Borrower, the Administrative Agent and each Lenderthe Lenders, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projectsany Project, shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by lawapplicable Environmental Law. Borrower shall at all times indemnify, defend and hold the Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents the Lenders harmless from and against any and all lossclaims, suits, actions, debts, damages, losses, liabilities, damageslitigations, claimsjudgments, charges, costs and expenses (including reasonable costs of defense and consultant feesdefense), investigation and laboratory feesof any nature whatsoever proffered or incurred by the Administrative Agent and/or the Lenders, court costswhether as mortgagee or beneficiary under the Mortgage, as mortgagee in possession, or as successor-in-interest to Borrower by foreclosure deed or deed in lieu of foreclosure, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projects, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including those arising from the joint, concurrent or (f) comparative negligence of the imposition Administrative Agent and the Lenders, under or on account of the Environmental Laws, including the assertion of any Lien thereunder, with respect to: (1) a breach of any representation, warranty or covenant of Borrower contained in this Article 4; (2) any acts performed by the Administrative Agent or any Lender pursuant to the provisions of this Article 4; (3) any discharge of Hazardous Materials, the threat of discharge of any Hazardous Materials or the storage or presence of any Hazardous Materials affecting any Project whether or not the same originates or emanates from such Project or any contiguous real estate, including any loss of value of such Project as a result of the foregoing (but Borrower shall not be responsible for any such loss or diminution in value if the Loans have been repaid); (4) any costs of removal or remedial action incurred by the United States Government or any costs incurred by any other Person or damages from injury to, destruction of, or loss of natural resources including reasonable costs of assessing such injury, destruction or loss incurred pursuant to any Environmental Laws; (5) liability for personal injury or property damage arising under any statutory or common law tort theory, including without limitation damages assessed for the maintenance of a public or private nuisance or for the carrying on of an abnormally dangerous activity at, upon, under or within any Project; and/or (6) any other environmental lien encumbering matter affecting any Project within the Projects; providedjurisdiction of the Environmental Protection Agency, howeverany other federal agency or any state or local environmental agency. The foregoing notwithstanding, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, suits, actions, debts, damages, litigations, judgments, charges, cost or expense results solely from such indemnified Personthe Administrative Agent’s or any Lender’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Borrower’s obligations under this Section 4.3 4.4 shall arise upon the discovery of the presence of any Hazardous Material subject to indemnification hereunder, whether or not the Environmental Protection Agency, any Governmental Authority other federal agency or any state or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and shall continue notwithstanding the repayment of the Loan Loans or any transfer or sale of any right, title and interest in any the Project (by foreclosure, deed in lieu of foreclosure or otherwise).. Notwithstanding the foregoing, , Borrower shall not be liable under this Section 4.3 to the extent such loss, liability, damage, claim, suits, actions, debts, damages, litigations, judgments, charges, cost or expense arise out of, relate to or result from either (A) Hazardous Materials existing on, in, under or about any of the Projects as of the Closing Date or (B) events or conditions caused or created by the Administrative Agent and first existing after the Administrative Agent acquires title to the Project by foreclosure or acceptance of a deed in lieu thereof..

Allocation of Risks and Indemnity. As between Borrower and Administrative Agent and each Lender, all risk of loss associated with non-compliance with Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to or otherwise affecting the Projectsa Project, shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and costs associated with any loss (including any loss in value attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal of Hazardous Materials or other remediation required by Administrative Agent or by law. Borrower shall indemnify, defend and hold Administrative Agent and each Lender and their respective shareholders, directors, officers, employees and agents harmless from and against all loss, liabilities, damages, claims, costs and expenses (including reasonable costs of defense and consultant fees, investigation and laboratory fees, court costs, and other litigation expenses) arising out of or associated, in any way, with (a) the non-compliance with Environmental Laws, or (b) the existence of Hazardous Materials in, on, or about the Projectsany Project, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials; (d) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, (e) a breach of any representation, warranty or covenant contained in this Article 4, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, or (f) the imposition of any environmental lien encumbering the Projectsany Project; provided, however, Borrower shall not be liable under such indemnification to the extent such loss, liability, damage, claim, cost or expense results solely from such indemnified Person’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Borrower’s obligations under this Section 4.3 shall arise whether or not any Governmental Authority has taken or threatened any action in connection with the presence of any Hazardous Material, and whether or not the existence of any such Hazardous Material or potential liability on account thereof is disclosed in the Site Assessment and shall continue notwithstanding the repayment of the Loan or any transfer or sale of any right, title and interest in any Project (by foreclosure, deed in lieu of foreclosure or otherwise).. LOAN AGREEMENT – Page 44[Heritage Wxxxx]