Common use of VERSION Clause in Contracts

VERSION. Indemnitor hereby acknowledges and agrees that the provisions of this Agreement shall supersede any provisions in the Loan Documents which in any way limit the liability of Indemnitor (including those contained in Article 12 of the Loan Agreement), and that Indemnitor shall be personally liable for any and all obligations arising under this Agreement even if the amount of liability incurred exceeds the amount of the Loan. Subject to Section 3.1 above and the below provisions of this Section 3.3, all of the representations, warranties, covenants and indemnities of this Agreement shall survive the repayment of the Notes and/or the release of the lien of the Mortgages from the Mortgaged Property and shall survive the transfer of any or all right, title and interest in and to the Mortgaged Property by Borrowers to any party. Indemnitor hereby acknowledges and agrees that, notwithstanding anything contained in any of the Loan Documents to the contrary, this Agreement and the obligations of Indemnitor under this Agreement shall not be secured by the Mortgages or any other Loan Documents or any other mortgage, deed of trust or other security document securing any obligations of Borrowers in connection with the Loan. Notwithstanding the foregoing or anything contained in this Agreement or any other Loan Documents to the contrary, if, (a) at any time after the third anniversary of repayment in full of the Debt, whether at maturity, as a result of acceleration, in connection with prepayment or otherwise, or (b) with respect to any Project that is released from the lien of the applicable Security Instrument in accordance with the terms of Section 2.18 of the Loan Agreement, at any time after the third anniversary of the effective date of such release, Administrative Agent is provided with an updated Site Assessment of the related Project indicating, to Indemnitee’s reasonable satisfaction, that there are no Hazardous Materials located on, in, above or under such Project in violation of any applicable Environmental Laws, then the obligations and liabilities of Indemnitor under this Agreement shall cease and terminate with respect to such Projects. Notwithstanding the provisions of this Agreement to the contrary, the liabilities and obligations of Indemnitor hereunder shall not apply to the extent that such liabilities and obligations arose solely from Hazardous Substances that: (y) were not present on or a threat to any Project prior to the date that Administrative Agent, any Lender or its nominee or designee acquired title to such Project, or to the Pledged Interests of the Indemnitor owning such Project, whether by foreclosure, exercise of power of sale or otherwise, and (z) were not the result of any act or negligence of Indemnitor or any of Indemnitor’s affiliates, agents or contractors.

VERSION. Indemnitor hereby acknowledges Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and agrees that the provisions Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date. If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. No reference herein to the Indenture and no provision of this Agreement Note or of the Indenture shall supersede any provisions alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the Loan Documents which in any way limit the liability of Indemnitor (including those contained in Article 12 coin or currency herein prescribed. No director, officer, employee or stockholder, as such, of the Loan Agreement), and that Indemnitor Company shall be personally liable have any liability for any and all obligations arising under this Agreement even if the amount of liability incurred exceeds the amount of the Loan. Subject to Section 3.1 above and the below provisions of this Section 3.3, all of the representations, warranties, covenants and indemnities of this Agreement shall survive the repayment of the Notes and/or the release of the lien of the Mortgages from the Mortgaged Property and shall survive the transfer of any or all right, title and interest in and to the Mortgaged Property by Borrowers to any party. Indemnitor hereby acknowledges and agrees that, notwithstanding anything contained in any of the Loan Documents to the contrary, this Agreement and the obligations of Indemnitor under this Agreement shall not be secured by the Mortgages or any other Loan Documents or any other mortgage, deed of trust or other security document securing any obligations of Borrowers the Company under this Note or the Indenture or for any claim based on, in connection with the Loanrespect of or by reason of such obligations or their creation. Notwithstanding the foregoing or anything contained in Each Holder, by accepting this Agreement or any other Loan Documents to the contraryNote, if, (a) at any time after the third anniversary of repayment in full waives and releases all such liability. The waiver and release are part of the Debt, whether at maturity, as a result consideration for the issue of acceleration, in connection with prepayment or otherwise, or (b) with respect to any Project that is released from this Note. This Note and the lien of the applicable Security Instrument Indenture shall be governed by and construed in accordance with the terms of Section 2.18 law of the Loan AgreementState of New York applicable to agreements made or instruments entered into and, at in each case, performed in said state. Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any time after the third anniversary agent of the effective date Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes. Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such releasenumbers and reliance may be placed only on the other identification numbers printed on this Note. Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture. Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, Administrative Agent is provided with an updated Site Assessment or on behalf of the related Project indicatingTrustee by the manual signature of an authorized officer of the Trustee's authenticating agent, to Indemnitee’s reasonable satisfaction, that there are no Hazardous Materials located on, in, above or under such Project in violation of any applicable Environmental Laws, then the obligations and liabilities of Indemnitor under this Agreement shall cease and terminate with respect to such Projects. Notwithstanding the provisions of this Agreement to the contrary, the liabilities and obligations of Indemnitor hereunder Note shall not apply to the extent that such liabilities and obligations arose solely from Hazardous Substances that: (y) were not present on or a threat be entitled to any Project prior to benefit under the date that Administrative Agent, Indenture or be valid or obligatory for any Lender or its nominee or designee acquired title to such Project, or to the Pledged Interests of the Indemnitor owning such Project, whether by foreclosure, exercise of power of sale or otherwise, and (z) were not the result of any act or negligence of Indemnitor or any of Indemnitor’s affiliates, agents or contractorspurpose.

VERSION. Indemnitor hereby acknowledges Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and agrees that the provisions Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date. If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. No reference herein to the Indenture and no provision of this Agreement Note or of the Indenture shall supersede any provisions alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the Loan Documents which in any way limit the liability of Indemnitor (including those contained in Article 12 coin or currency herein prescribed. No director, officer, employee or stockholder, as such, of the Loan Agreement), and that Indemnitor Company shall be personally liable have any liability for any and all obligations arising under this Agreement even if the amount of liability incurred exceeds the amount of the Loan. Subject to Section 3.1 above and the below provisions of this Section 3.3, all of the representations, warranties, covenants and indemnities of this Agreement shall survive the repayment of the Notes and/or the release of the lien of the Mortgages from the Mortgaged Property and shall survive the transfer of any or all right, title and interest in and to the Mortgaged Property by Borrowers to any party. Indemnitor hereby acknowledges and agrees that, notwithstanding anything contained in any of the Loan Documents to the contrary, this Agreement and the obligations of Indemnitor under this Agreement shall not be secured by the Mortgages or any other Loan Documents or any other mortgage, deed of trust or other security document securing any obligations of Borrowers the Company under this Note or the Indenture or for any claim based on, in connection with the Loanrespect of or by reason of such obligations or their creation. Notwithstanding the foregoing or anything contained in Each Holder, by accepting this Agreement or any other Loan Documents to the contraryNote, if, (a) at any time after the third anniversary of repayment in full waives and releases all such liability. The waiver and release are part of the Debt, whether at maturity, as a result consideration for the issue of acceleration, in connection with prepayment or otherwise, or (b) with respect to any Project that is released from this Note. This Note and the lien of the applicable Security Instrument Indenture shall be governed by and construed in accordance with the terms of Section 2.18 law of the Loan AgreementState of New York applicable to agreements made or instruments entered into and, at in each case, performed in said state. Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any time after the third anniversary agent of the effective date Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes. Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such releasenumbers and reliance may be placed only on the other identification numbers printed on this Note. Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture. Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, Administrative Agent is provided with an updated Site Assessment or on behalf of the related Project indicatingTrustee by the manual signature of an authorized officer of the Trustee's authenticating agent, to Indemnitee’s reasonable satisfaction, that there are no Hazardous Materials located on, in, above or under such Project in violation of any applicable Environmental Laws, then the obligations and liabilities of Indemnitor under this Agreement shall cease and terminate with respect to such Projects. Notwithstanding the provisions of this Agreement to the contrary, the liabilities and obligations of Indemnitor hereunder Note shall not apply to the extent that such liabilities and obligations arose solely from Hazardous Substances that: (y) were not present on or a threat be entitled to any Project prior to benefit under the date that Administrative Agent, Indenture or be valid or obligatory for any Lender or its nominee or designee acquired title to such Project, or to the Pledged Interests of the Indemnitor owning such Project, whether by foreclosure, exercise of power of sale or otherwise, and (z) were not the result of any act or negligence of Indemnitor or any of Indemnitor’s affiliates, agents or contractors.purpose. EXECUTION VERSION

VERSION. Indemnitor hereby acknowledges To the extent permitted by law, the Company will indemnify and agrees that hold harmless, to the provisions of this Agreement shall supersede fullest extent permitted by law, any provisions Holder participating in the Loan Documents which in registration and any way limit the liability of Indemnitor (including those contained in Article 12 of the Loan Agreement)underwriter for such Holder, and that Indemnitor shall be personally liable for each person, if any, who controls such Holder or such underwriter, from and against any and all obligations arising losses, damages, claims, liabilities, joint or several, costs and expenses (including any amounts paid in any settlement effected with the Company’s consent) to which such Holder or any such underwriter or controlling person may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading, and the Company will reimburse such Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Holder, such underwriter or such controlling persons in writing specifically for inclusion therein; provided, further, that this Agreement even indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, however, that the foregoing indemnity agreement with respect to any prospectus shall not inure to the benefit of any Holder or underwriter, or any person controlling such Holder or underwriter, from whom the person asserting any such losses, claims, damages or liabilities purchased shares in the offering, if a copy of the prospectus (as then amended or supplemented if the amount Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of liability incurred exceeds such Holder or underwriter to such person, if required by law so to have been delivered, at or prior to the amount written confirmation of the Loan. Subject to Section 3.1 above and the below provisions of this Section 3.3, all sale of the representationsshares to such person, warrantiesand if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, covenants and indemnities claim, damage or liability, provided, further, that the indemnity agreement contained in this subsection 6.1 shall not apply to amounts paid in settlement of this Agreement shall survive any such claim, loss, damage, liability or action if such settlement is effected without the repayment consent of the Notes and/or the release Company, which consent shall not be unreasonably withheld or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the lien Holder, the underwriter or any controlling person of the Mortgages from selling Holder or the Mortgaged Property underwriter, and regardless of any sale in connection with such offering by the Holder. Such indemnity shall survive the transfer of any or all right, title and interest in and to the Mortgaged Property by Borrowers to any party. Indemnitor hereby acknowledges and agrees that, notwithstanding anything contained in any of the Loan Documents to the contrary, this Agreement and the obligations of Indemnitor under this Agreement shall not be secured securities by the Mortgages or any other Loan Documents or any other mortgage, deed of trust or other security document securing any obligations of Borrowers in connection with the Loan. Notwithstanding the foregoing or anything contained in this Agreement or any other Loan Documents to the contrary, if, (a) at any time after the third anniversary of repayment in full of the Debt, whether at maturity, as a result of acceleration, in connection with prepayment or otherwise, or (b) with respect to any Project that is released from the lien of the applicable Security Instrument in accordance with the terms of Section 2.18 of the Loan Agreement, at any time after the third anniversary of the effective date of such release, Administrative Agent is provided with an updated Site Assessment of the related Project indicating, to Indemnitee’s reasonable satisfaction, that there are no Hazardous Materials located on, in, above or under such Project in violation of any applicable Environmental Laws, then the obligations and liabilities of Indemnitor under this Agreement shall cease and terminate with respect to such Projects. Notwithstanding the provisions of this Agreement to the contrary, the liabilities and obligations of Indemnitor hereunder shall not apply to the extent that such liabilities and obligations arose solely from Hazardous Substances that: (y) were not present on or a threat to any Project prior to the date that Administrative Agent, any Lender or its nominee or designee acquired title to such Project, or to the Pledged Interests of the Indemnitor owning such Project, whether by foreclosure, exercise of power of sale or otherwise, and (z) were not the result of any act or negligence of Indemnitor or any of Indemnitor’s affiliates, agents or contractorsHolder.

VERSION. Indemnitor hereby acknowledges and agrees that the provisions of this 6.3 This Agreement shall supersede any provisions in be binding upon and inure to the Loan Documents which in any way limit the liability of Indemnitor (including those contained in Article 12 benefit of the Loan Agreement), and that Indemnitor shall be personally liable for any and all obligations arising under this Agreement even if the amount of liability incurred exceeds the amount of the Loan. Subject to Section 3.1 above and the below provisions of this Section 3.3, all of the representations, warranties, covenants and indemnities of this Agreement shall survive the repayment of the Notes and/or the release of the lien of the Mortgages from the Mortgaged Property and shall survive the transfer of any or all right, title and interest in parties hereto and to the Mortgaged Property by Borrowers to any partytheir respective heirs, legal representatives, successors and assigns. Indemnitor hereby acknowledges and agrees that, notwithstanding anything contained in any of the Loan Documents to the contrary, this Agreement and the obligations of Indemnitor under this Agreement shall The Company may not be secured by the Mortgages or any other Loan Documents or any other mortgage, deed of trust or other security document securing any obligations of Borrowers in connection with the Loan. Notwithstanding the foregoing or anything contained in assign this Agreement or any rights or obligations hereunder without the prior written consent of Subscriber (other Loan Documents than by merger). Subscriber may assign any or all of its rights under this Agreement to the contraryany person to whom Subscriber assigns or transfers any Securities, ifprovided that such transferee agrees in writing to be bound, (a) at any time after the third anniversary of repayment in full of the Debt, whether at maturity, as a result of acceleration, in connection with prepayment or otherwise, or (b) with respect to any Project that is released from the lien transferred Securities, by the provisions of the applicable Security Instrument Transaction Documents. 6.4 The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. 6.5 Upon the execution and delivery of this Agreement by the Subscriber and the Company, this Agreement shall become a binding obligation of the Subscriber with respect to the purchase of Securities as herein provided, subject, however, to the right hereby reserved by the Company to enter into the same agreements with other Subscribers and to reject any subscription, in whole or in part, provided the Company returns to Subscriber any funds paid by Subscriber with respect to such rejected subscription or portion thereof, without interest or deduction. 6.6 All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the terms of Section 2.18 internal laws of the Loan AgreementState of New York, at any time after without regard to the third anniversary principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the effective date transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of such release, Administrative Agent is provided with an updated Site Assessment New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the related Project indicatingstate and federal courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to Indemnitee’s reasonable satisfactionthe enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that there are no Hazardous Materials located onsuch suit, in, above action or under proceeding is improper or is an inconvenient venue for such Project proceeding. 6.7 In order to discourage frivolous claims the parties agree that unless a claimant in violation any proceeding arising out of any applicable Environmental Lawsthis Agreement succeeds in establishing his claim and recovering a judgment against another party (regardless of whether such claimant succeeds against one of the other parties to the action), then the obligations other party shall be entitled to recover from such claimant all of its/their reasonable legal costs and liabilities of Indemnitor under this Agreement shall cease and terminate with respect expenses relating to such Projects. Notwithstanding the provisions of this Agreement to the contrary, the liabilities and obligations of Indemnitor hereunder shall not apply to the extent that such liabilities and obligations arose solely from Hazardous Substances that: (y) were not present on or a threat to any Project prior to the date that Administrative Agent, any Lender or its nominee or designee acquired title to such Project, or to the Pledged Interests of the Indemnitor owning such Project, whether by foreclosure, exercise of power of sale or otherwise, and (z) were not the result of any act or negligence of Indemnitor or any of Indemnitor’s affiliates, agents or contractorsproceeding and/or incurred in preparation therefor.