Every secured lender knows of its potential problems under state and federal environmental legislation. When problems exist, the lender may have to abandon its collateral or chance megabuck liabilities should it take control.

The real answers to these concerns (if any exist) lie far outside of loan documentation, but state-of-the-art documents face up to these concerns.

At the front end, there is frequently a provision that, as a condition precedent to closing, the borrower provide the lender with evidence of compliance with environmental protection laws.

The extent to which lenders insist on assurances varies widely. it is interesting to see a parallel among environmental engineers to what has long existed among title insurance companies there are those you use if you are selling, and those you use if you are buying.

The first step in environmental protection by loan documentation is to add an additional covenant to the loan agreement or security agreement, such as:

Borrower shall comply with all present and future laws, statutes, ordinances, rules, regulations, orders, codes, licenses, permits, decrees, judgments, directives or the equivalent, of or by any Governmental Authority (collectively, "Laws"). Borrower shall also notify Lender immediately of any (a) violation or potential violation of any Laws, (b) notice of violation of any Laws Borrower may receive from a Governmental Authority (along with a copy of the notice of violation), (c) claims made or threatened against Borrower or any property Borrower may own, occupy or operate, alleging any violation of, or liability of Borrower under, any Laws.

Note that this provision covers more than environmental matters. A lender has every right to expect its borrower to live by all laws. In negotiations with borrower's counsel, you may add a materiality standard to this covenant.

This covenant might be coupled with a detailed and specific warranty, such as:

The undersigned hereby represents and warrants to Lender that to the best of the undersigned's knowledge after diligent inquiry (i) no Hazardous Material is currently located at, on, in, under or about the Mortgaged Property, [except as specifically set forth in ,] (ii) no Hazardous Material is currently located at, in, on, under or about the Mortgaged Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from the Mortgaged Property onto or into any other property or from any other property onto or into the Mortgaged Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to the Mortgaged Property is presently outstanding under any Environmental Requirement, and (v) the Mortgaged Property and the operation thereof are in full compliance with all Environmental Requirements.

These approaches do not add greatly to the paperwork burden, but do not satisfy many lenders. In addition to covenants and warranties, they seek indemnity.

This is not a text on credit as such, and so I will not consider the value of an environmental indemnity from the asset-owner itself. Just accept that (a) you will be asked to draft them and (b) sometimes they will have actual value.

One approach is to add language of indemnity to guaranties and loan agreements. Assuming that the persons bound by the documents are the same as those from whom the indemnity is sought, that technique is suitable. It might be phrased this way:

The undersigned will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by the Borrower of any of the provisions of paragraph of the Mortgage and paragraph of the Loan Agreement; (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from, or affecting the Mortgaged Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting the Mortgaged Property or the soil, water, air, vegetation, buildings, personal property, persons or animals located on the Mortgaged Property or on any other property or otherwise; (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material; (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material; or (v) any violation of any Environmental Requirement.

The undersigned absolutely and unconditionally agrees to indemnify and to hold Lender harmless from and against any and all loss, liability, cost, or expense of any nature whatsoever, contingent or otherwise, foreseen or unforeseen, incurred by Lender (including, without limitation, counsel fees) as a result of any failure for any reason of the Borrower to timely comply in all respects with the Remediation Plan (as defined in the Loan Agreement) or as a result of any delay or suspension in the construction of the improvements (as defined in the Loan Agreement) resulting from any order or action taken by any Governmental Authority having jurisdiction over environmental matters or Hazardous Materials.

The obligations and liabilities of the undersigned under this Agreement shall survive and continue in full force and effect and shall not be terminated, discharged, or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of the Mortgage, sale of the Mortgaged Property pursuant to the provisions of the Mortgage, or acceptance by Lender, its nominee or wholly owned subsidiary of a deed or assignment in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoever.

I tend to feel, however, that, even if it is the borrower or a guarantor giving the indemnity, the event is of sufficient importance to merit a free-standing indemnity agreement, such as form 21.1 or 21.2. Of course, such a form will be needed if the indemnitor is not a party to the loan transaction, such as a vendor to the borrower.

HAZARDOUS MATERIALS INDEMNIFICATION AGREEMENT made as of the day of , 19_, from XXX, a Massachusetts corporation, with an address of XXX, XXX ("Borrower") and XXX, with an address of XXX ("Guarantor"; Borrower and Guarantor being herein individually and collectively referred to as "Indemnitor"), to XXX, a national banking association, with an address at XXX, XXX ("Lender").

Recitals

WHEREAS, Borrower is the owner of the real property commonly known as XXX, XXX, County of XXX, Commonwealth of Massachusetts, as more particularly described in Exhibit A attached hereto (said real property, together with any real property hereafter encumbered by the lien of the Mortgage (as defined herein), being herein collectively referred to as the "Land"; the Land, together with all improvements now or hereafter located on the Land, being herein collectively referred to as the "Property");

WHEREAS, in a transaction of even date herewith, Lender is making a mortgage loan (which loan, together with all renewals and extensions thereof, is hereinafter referred to as the "Loan") in the original principal amount of $ to Borrower, which Loan is evidenced by a Promissoy Note, of even date herewith (the "Note") and is secured by, among other things, a mortgage and security agreement of even date from Borrower to Lender which will encumber the Property (said mortgage and security agreement, together with all amendments, modifications, consolidations, increases, supplements and spreaders thereof being herein collectively referred to as the "Mortgage");

WHEREAS, Guarantor, an affiliate of Borrower, is guaranteeing certain of Borrower's obligations under the Note, the Mortgage and all other documents and instruments executed in connection therewith in accordance with the terms of Guarantor's guaranty of even date herewith (the "Guaranty"; the Note, the Mortgage, the Guaranty arid such other documents or instruments, as amended or modified from time to time, being herein collectively referred to as the "Loan Documents");

WHEREAS, certain Massachusetts and federal statutes (and all regulations promulgated thereunder), orders and decrees pertaining to environmental protection, and human and occupational safety, health and welfare, including, without limitation, the Comprehensive Environmental

Response, Compensation and Liability Act of 1980, 42 U.S.C.  9601 et seq., the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Chapter 21 E of the Massachusetts General Laws, the Federal Toxic Substances Control Act, 15 U.S.C.  2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.  1802 et seq., the Federal Water Pollution Control Act, 33 U.S.C.  1321 et seq., the Federal Clean Water Act, 33 U.S.C.  1251 et seq., the Occupational Safety and Health Act of 1970, 29 U.S.C.  651 et seq., the Federal Resource Conservation and Recovery Act, 42 U.S.C.  6901 et seq., the Massachusetts Hazardous Waste Management Act, Chapter 21 C of the Massachusetts General Laws, as all of the foregoing may from time to time be amended, or as similar such laws, rules, regulations, orders and decrees may now or hereafter be enacted (collectively, the "Laws"), impose liability on certain persons, including, without limitation, present and past owners or operators of real property with respect to any "chemical substance", "hazardous or toxic substance", "hazardous or toxic material", "hazardous or toxic waste" and "oil" as such terms are respectively defined now or hereafter under any of the Laws or listed in the United States Department of Transportation Hazardous Materials Table (49 C.F.R.  172.101), and include, without limitation, asbestos, asbestos-containing materials, oil or other petroleum products, polychlorinated biphenyls and other toxic waste and substances (collectively, all such substances regulated by the Laws, including the foregoing substances, are hereinafter referred to as "Hazardous Materials");

WHEREAS, as a condition to making the Loan, Lender requires Borrower to provide certain indemnities concerning existing and future Hazardous Materials at, upon, under or within the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or occupied by Borrower; and

WHEREAS, to induce Lender to consummate the above described transaction and to lend the amount of the Loan to Borrower, indemnitor has agreed to enter into this Agreement;

NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and further acknowledging that Lender is relying on the indemnification of the undersigned hereunder in making the Loan, Indemnitor hereby agrees as follows:

1. REPRESENTATIONS AND WARRANTIES. Indemnitor represents and warrants that:

1.1. Neither Indemnitor nor any person for whose conduct Indemnitor is responsible ever:

(a) owned, occupied, or operated a site or vessel on which any Hazardous Materials were or are disposed of, transported or stored (except if such storage was or is in compliance with all Laws);

(b) directly or indirectly transported or arranged for transport of any Hazardous Materials (except if such transportation was or is in compliance with all Laws);

(c) has been, is or will be involved in any other operations at or near the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or occupied by Indemnitor, which operations could lead to (i) the imposition of liability under the Laws on Indemnitor, or any subsequent or former owner of the Property or (ii) the creation of a lien on the Property under the Laws;

(d) caused, suffered or permitted to occur any condition which may cause a release, threat of release or discharge of any Hazardous Materials at, upon, under or within the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or occupied by Indemnitor; or

(e) received notification from any federal, state or other governmental authority of: any potential, known, or threat of release of any Hazardous Materials on or from the Property or any other site or vessel owned, occupied, or operated either by Indemnitor or any person for whose conduct Indemnitor is responsible or whose liability may result in a lien on the Property; or the incurring of any expense or loss by such governmental authority, or by any other person, in connection with the assessment, containment, or removal of any release, or threat of release, of any Hazardous Materials from the Property or any such site or vessel.

1.2. Indemnitor has no knowledge of any release, threat of release, deposit, storage, disposal, burial, discharge, spillage, uncontrolled seepage or filtration of any Hazardous Materials at, upon, under or within the Property or any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or occupied by Indemnitor.

1.3. Indemnitor has not permitted any tenant or occupant of the Property to engage in any activity that could impose liability under the Laws on such tenant, occupant, Indemnitor, or any other owner of the Property.

2. COVENANTS.

2.1. Indemnitor shall not store (except in compliance with all Laws), or dispose of any Hazardous Materials at, upon, under or within the Property or any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or occupied by Indemnitor or by any person for whose conduct Indemnitor is responsible;

2.2. Indemnitor shall neither directly nor indirectly transport or arrange for the transport of any Hazardous Materials (except in compliance with all Laws);

2.3. Indemnitor shall take all such action, including, without limitation, the conducting of engineering tests (at the sole expense of Indemnitor) by an engineering firm or an environmental consultant acceptable to Lender, (a) to assess the presence, release, threat of release or absence of any Hazardous Materials at, upon, under or within the Property and the potential cost in connection with any abatement, clean up or removal of any of the Hazardous Materials found at, upon, under or within the Property; (b) to contain and remove any such Hazardous Materials at, upon, under or within the Property, and (c) to qualify for any insurance program or safe harbor which may be available under said Chapters 21 C and 21 E, as amended, and 42 U.S.C. 6901 et seq., as amended; and

2.4. Indemnitor shall notify Lender immediately in writing (a) upon Indemnitor's obtaining knowledge of any potential or known release, threat of release, discharge or discovery of any of the Hazardous Materials at, upon, under, or within the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or ocqupied by Indemnitor or by any person for whose conduct Indemnitor is responsible or whose liability may result in a lien on the Property; (b) upon Indemnitor's receipt of any notice to such effect from any federal, state, or other governmental authority (and Indemnitor shall forward to Lender copies of all orders, notices, applications or other communications and reports in connection with any such matter); and (c) upon Indemnitor's obtaining knowledge of any incurring of any expense or loss by such governmental authority in connection with the assessment, containment, or removal of any Hazardous Materials for which expense or loss Indemnitor may be liable or for which expense a lien may be imposed on the Property.

3. INDEMNITY. Indemnitor covenants and agrees, at its sole cost and expense, to indemnify, protect and save Lender harmless against and from any and all damages, losses, liabilities, costs and expenses of Corrective Work (as hereafter defined), obligations, penalties, fines, impositions, fees, levies, lien removal or bonding costs, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses (including, without limitation, attorneys' end experts' reasonable fees and disbursements) of any kind or of any nature whatsoever, including interest thereon pursuant to the Loan Documents and applicable statutes (collectively, the "Indemnified Matters") which may at any time be imposed upon, incurred by or asserted or awarded against Lender and arising from or out of or attributable to or by reason of:

3.1.Any discharge of any of the Hazardous Materials, the threat of a release or discharge of any of the Hazardous Materials, or the presence of any of the Hazardous Materials at, upon, under, within or otherwise affecting the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or occupied by Indemnitor by reason of occurrences at, upon, under or within the Property, such contiguous or adjacent real estate or such other site or vessel, whether or not the same originates or emanates from the Property, such contiguous or adjacent real estate or such other site or vessel, including, without limitation, any loss of value of the Property as a result of any of the foregoing;

3.2.Any costs of removal or remedial action incurred by any federal, state or local governmental authority, any response costs incurred by any other person, and damages to, destruction of, or loss of natural resources including, without limitation, costs of assessing such injury, destruction or loss incurred pursuant to any Laws;

3.3.Additional costs required to take necessary precautions to protect against the release of Hazardous Materials at, upon, under, within or otherwise affecting the Property into the air, any body of water, any other public domain or any surrounding areas;

3.4. Costs incurred to comply, in connection with all or any portion of the Property or any surrounding areas, with all applicable Laws and any other environmental matters at, upon, under, within or otherwise affecting the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, occupied or operated by Indemnitor, by reason of occurrences at, upon, under, within the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, occupied or operated by Indemnitor, within the jurisdiction of any federal, state or local governmental agency or authority, including costs related to nonperformance or delayed performance and completion of Corrective Work;

3.5. Liability for personal injury or damage arising under any statutory or common law theory, including, without limitation, damages for the maintenance of a public or private nuisance or for the carrying on of an abnormally dangerous activity or operation on, at, under or within the Property, any real property contiguous or adjacent thereto or any other site or vessel (wherever located) owned, occupied or operated by Indemnitor; and/or

3.6.Any defense of any of the foregoing, any breach of any representation or covenant contained in this Agreement, the enforcement of the terms of this Agreement and the assertion by Indemnitor of any defense to its obligations hereunder (except the successful defense of actual performance not subject to further appeal), whether any of such matters arise before, during or after foreclosure of the Mortgage or other taking of title to all or any portion of the Property, or other enforcement of the remedies and rights under the Loan Documents, by Lender or any affiliate or participant of Lender (all removal work referred to in clause (b) above, all work and other actions to take precautions against release referred to in clause (c) above, and all work and other actions performed in order to comply with Laws and address other environmental matters referred to in clause (d) above shall be herein collectively referred to as "Corrective Work"). Notwithstanding anything to the contrary contained herein, (i) the indemnity provided for under this Agreement with respect to surrounding areas shall not extend to the costs of Corrective Work on, in, under or affecting any surrounding areas if the applicable Hazardous Materials did not originate from any portion of the Property, unless the removal of any Hazardous Materials on, in, under or affecting any surrounding areas is required by Law or by order or directive of any federal, state or local governmental authority in connection with the Corrective Work on, in, under or affecting any portion of the Property; (ii) if Lender or any affiliate, participant or successor or assign of Lender or such affiliate or participant takes title to the Property at a foreclosure sale, at a sale pursuant to a power of sale under the Mortgage, by deed in lieu of foreclosure, pursuant to other rights granted under the Mortgage or otherwise, then the indemnity provided for under this Agreement shall not apply to Hazardous Materials which are initially placed on, in or under all or any portion of the Property after the date Lender or such other party so takes title to the Property. The foregoing covenant to indemnify, defend and hold harmless shall arise whether or not any federal, state or local public agency or authority has taken or threatened any action in connection with the release, threat of release or presence of any Hazardous Materials.

4. LENDER'S RIGHT TO CURE.

4.1. In the event of any discharge of any of the Hazardous Materials, the release or threat of release of any of the Hazardous Materials, or the presence of any of the Hazardous Materials at, upon, under or within the Property, any contiguous or adjacent real estate or any other site or vessel (wherever located) owned, operated or occupied by Indemnitor, whether or not the same originates or emanates from the Property, such contiguous or adjacent real estate or such other site or vessel, and/or if Indemnitor shall fail to comply with any requirements of the Laws, Lender may, at its option (but without any obligation to do so), give notice and/or cause such work to be performed at the Property, such contiguous or adjacent real estate and such other site or vessel, and/or take any and all other actions as it shall deem necessary or advisable in order to cure Indemnitor's noncompliance or abate the release, threat of release or discharge of any of the Hazardous Materials, and any and all amounts paid as a result thereof, together with interest thereon at the default rate of interest set forth in the Note from the date of payment, shall be immediately due and payable by Indemnitor to Lender, and until paid shall be added to and become part of the principal debt secured by the Mortgage and said amount may be collected as part of said principal debt in any suit upon the Loan Documents, but such payment shall not be deemed to relieve Indemnitor from any default hereunder or impair any right or remedy with respect thereto. Lender, by the payment of any assessment, claim or charge, shall be subrogated to any rights of Indemnitor or any occupant of the Property to seek reimbursement from any third parties, including, without limitation, a predecessor in interest to Indemnitor's title or a predecessor to occupant's use of the Property who may be a "responsible party" under the Laws.

4.2. Lender shall, at all times, be free to establish independently to its satisfaction and in its absolute discretion the existence or nonexistence of any fact or facts the existence or nonexistence of which is a condition of this Agreement.

4.3. Lender may employ attorneys and other professionals of its own choice in connection with the subject matter hereof. If Lender retains the services of attorneys or other professionals, Indemnitor covenants and agrees to pay all such costs and expenses incurred thereby as provided in 4.1 hereof.

5. INDEMNITOR'S CORRECTIVE WORK; RIGHT TO CONTEST.

5.1. Lender hereby agrees that, prior to Lender's taking the actions described in 114 above, Indemnitor may, at its sole cost and expense, (A) contest the assertion by any governmental authority or any third party of any obligation or liability affecting Indemnitor, Lender or all or any portion of the Property for performance of any Corrective Work and (B) perform any Corrective Work, provided that at all times all of the following conditions are satisfied in full:

(a) no Event of Default has occurred under any of the Loan Documents, and Lender has not commenced or completed foreclosure or a sale under power of sale or accepted a deed in lieu of foreclosure or otherwise taken title to all or any portion of the Property, (b) the collateral for the Loan shall not be impaired in the sole and absolute judgment of Lender, and Lender (and its agents, servants, employees, contractors, shareholders, affiliates and participants) shall not be subject to any civil or criminal or other penalties, costs or expenses, by reason of such contest or the performance of such Corrective Work or any delays in connection therewith,

(c) Indemnitor shall notify Lender within ten (10) days after commencement of any such contest or Corrective Work, and shall give Lender a monthly report, during the period of such contest or the performance of such Corrective Work, reporting fully on Indemnitor's progress with respect thereto, and shall promptly give Lender such other information with respect thereto as Lender shall request from time to time,

(d) with respect to contests, any such contest shall be instituted promptly after Indemnitor obtains actual knowledge of an action, suit, proceeding or governmental order or directive which asserts any obligation or liability affecting Indemnitor, Lender or all or any portion of the Property, and such contest shall at all times be diligently prosecuted until a final judgment is obtained that negates such assertion of obligation or liability,

(e) with respect to contests, Lender shall have the right (but not the obligation) to join in any action or proceeding in which Indemnitor contests any such assertions by any governmental authorities or third parties,

(f) with respect to Corrective Work, any such Corrective Work shall be instituted promptly after the later to occur of: (i) a determination by the applicable judicial or administrative authority that the contest is unsuccessful, which determination is not, or ceases to be, subject to further appeal or (ii) Indemnitor obtains actual knowledge of any Hazardous Materials on, in, under or affecting the Property or (when applicable) any surrounding areas, and such Corrective Work shall at all times be diligently prosecuted until all such Hazardous Materials are removed and properly and lawfully disposed of, and

(g) with respect to any Corrective Work, Indemnitor shall, not less than fifteen (15) days prior to commencement of such Corrective Work, submit to Lender for its review reasonably detailed plans for such Corrective Work, and, if, within said fifteen (15) day period, Lender, in its reasonable judgment, rejects such plans, Indemnitor shall promptly submit revised plans to Lender and shall obtain Lender's acceptance of such plans prior to commencement of such Corrective Work, and Indemnitor shall comply with the plans submitted to Lender (and, if applicable, accepted by Lender) in performing such Corrective Work.

As long as all of such conditions are satisfied in full at all times, Lender further agrees that it will not enter into any settlement agreement binding upon Indemnitor without its prior consent; Indemnitor agrees that in any event, its consent to any such settlement agreement shall not be unreasonably withheld or delayed.

5.2. It is expressly understood and agreed that failure by Lender to object to any actions taken by Indemnitor shall not be construed to be an approval by Lender of such actions. It is further expressly understood and agreed that this Agreement shall not be construed as creating any obligation for Lender to initiate any contests of the nature described in this 115, to review any plans for Corrective Work or to perform, or review Indemnitor's or any other party's performance of, any Corrective Work.

6. NO LIMITATION OF LENDER'S RIGHTS.

6.1. Lender's rights under this Agreement shall be in addition to all rights of Lender under the Mortgage, the Note and all other Loan Documents, and payments by Indemnitor under this Agreement shall not reduce Indemnitor's obligations and liabilities under any of the Loan Documents.

6.2. The liability of Indemnitor under this Agreement shall in no way be limited or impaired by, and Indemnitor hereby consents to and agrees to be bound by, any amendment or modification of the provisions of the Loan Documents to or with Lender by Indemnitor or any person who succeeds Indemnitor as owner of the Property. In addition, the liability of Indemnitor under this Agreement shall in no way be limited or impaired by (a) any extensions of time for performance required by any of the Loan Documents, (b) any sale, assignment or foreclosure of the Note or Mortgage or any sale or transfer of all or part of the Property, (c) any exculpatory provision in any of the Loan Documents limiting Lender's recourse to property encumbered by the Mortgage or to any other security, or limiting Lender's rights to a deficiency judgment against Indemnitor, (d) the accuracy or inaccuracy of the representations and warranties made by Indemnitor under any of the Loan Documents, (e) the release of Indemnitor or any other person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Lender's voluntary act, or otherwise, (f) the release or substitution in whole or in part of any security for the Note or (g) any failure to record the Mortgage or file any UCC financing statements (or Lender's or Indemnitor's improper recording or filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Note; and, in any such case, whether with or without notice to Indemnitor and with or without consideration.

6.3. No delay on Lender's part in exercising any right, power or privilege hereunder shall operate as a waiver of any such privilege, power or right.

6.4.This Agreement is intended to supplement the terms and provisions of the Mortgage with respect to the subject matter hereof. Without limitation, Indemnitor intends that the representations, warranties, covenants and indemnities set forth in this Indemnity shall be liberally construed for the benefit of Lender.

7. NOTICE FROM LENDER. Promptly after the receipt by Lender of written notice of any demand or claim or the commencement of any action, suit or proceeding in respect of any of the Indemnified Matters, Lender shall notify Indemnitor thereof in writing; but the failure by Lender promptly to give such notice shall not relieve Indemnitor of any liability which it may have to Lender hereunder.

8. PARTIES BOUND; ASSIGNMENT.

8.1. Except as herein provided, this Agreement shall be binding upon and inure to the benefit of Indemnitor and Lender and their respective heirs, personal representatives, successors and assigns, including, as to Lender, without limitation, any holder of the Note, any existing or future participant(s) with Lender in making the Loan and any affiliate of Lender or any such participant(s) which acquires all or part of the Property by any sale, assignment or foreclosure under the Mortgage, by deed or other assignment in lieu of foreclosure or otherwise. Notwithstanding the foregoing, Indemnitor, without the prior written consent of Lender in each instance, which consent may be withheld in Lender's sole and absolute discretion, may not assign, transfer or set over to another, in whole or in part, all or any part of its benefits, rights, duties and obligations hereunder.

8.2. Except as herein provided, the rights of Lender under this Agreement shall not inure to the benefit of (a) any purchaser of the Property at a foreclosure sale or sale pursuant to a power of sale under the Mortgage, (b) any person or entity taking title to the Property by deed in lieu of foreclosure or (c) any successor or assign of any purchaser, person or entity described in clause (a) and (b) above, except that Lender's rights shall inure to the benefit of the parties described in clauses (a), (b) and (c) above if such parties are Lender (including its successors and assigns as holder of the Note and participants) or its affiliates. Notwithstanding any ownership by Lender or its affiliates at any time of all or any portion of the Property, in no event shall Lender (including its successors and assigns as holder of the Note or participants) or its affiliates be bound by any obligations or liabilities of Indemnitor.

8.3. Each reference herein to Lender shall be deemed to include its successors and assigns, and each reference to Indemnitor and any pronouhs referring thereto as used herein shall be construed in the masculine, feminine, neuter, singular or plural as the context may require, and shall be deemed to include successors and assigns of Indemnitor.

9. SURVIVAL OF AGREEMENT. Indemnitor agrees that this Agreement shall survive the satisfaction of Indemnitor's and Indemnitor's respective obligations under the Loan Documents and/or the termination, release or discharge thereof executed by Lender in favor of Indemnitor, provided, however, the indemnity provided for hereunder shall, subject to the immediately following proviso, terminate and be of no further force and effect when all of the following conditions are satisfied in full:

9.1.all principal, interest and other sums evidenced or secured by the Loan Documents and any other costs and expenses in connection with the Loan are paid In full by Indemnitor,

9.2. neither Lender nor any affiliate of Lender has at any time or in any manner participated in the management or control of, taken possession of, or title to, the Property or any portion thereof whether by foreclosure, deed in lieu of foreclosure, sale under power of sale pursuant to the Mortgage, or otherwise,

9.3.there has been no change, between the date hereof and prior to the date the Loan is paid in full as provided in (a) above, in any Laws, the effect of which change may be to make a lender or mortgagee liable in respect of any Indemnified Matters notwithstanding the fact that no event, circumstance or condition of the nature described in clause (b) above ever occurred, and

9.4.there exist no Indemnified Matters which are pending; provided, however, that Indemnitor agrees that Indemnitor shall continue to be liable and shall pay for any and all litigation costs and expenses (including, without limitation, attorneys" and experts) reasonable fees and disbursements) incurred by Lender in connection with any claims, litigation, demands, defenses, judgments, suits and proceedings which may thereafter be asserted against Lender arising from or out of any Hazardous Materials existing on, in, under or affecting all or any portion of the Property or any surrounding areas at or prior to the date of payment in full of the Loan as provided in clause 9.1 above, and reasonable costs and expenses (including experts' and attorneys' fees and disbursements) incurred or expended by Lender in (i) enforcing any provision of this Indemnity or (ii) any litigation, arbitration, administrative claims or matters arising within twenty (20) years after the date of such full payment involving Hazardous Materials on, in or under the Property, or if covered by this Indemnity, any surrounding areas. Indemnitor shall from time to time deliver, upon request by Lender, satisfactory acknowledgments of Indemnitor's continued liability hereunder and compliance herewith.

10. RELIANCE. Indemnitor acknowledges that Lender has agreed to make the Loan to Borrower in reliance 'upon Indemnitor's representations, warranties, covenants and indemnities set forth in this Agreement. For this reason, it is the intention of Indemnitor and Lender that the provisions of this Agreement shall supersede any provisions in the Loan Documents which in any way limit the personal liability of Indemnitor and that Indemnitor shall be personally liable for any and all obligations arising under this Indemnity, including, without limitation, if the amount of such liability incurred exceeds the amount of the Loan.

11. WAIVERS AND AGREEMENTS CONCERNING REMEDIES.

11.1. Indemnitor agrees that any payments required to be made hereunder shall become due on demand.

11.2. Indemnitor expressly agrees that it will not, at any time, insist upon or plead, or in any manner whatsoever claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, extension or redemption, which may delay, prevent, impair or otherwise affect payment and performance by Indemnitor of the obligations of Indemnitor hereunder, and expressly waives all benefits or advantages of such laws and further covenants not to hinder, delay or impede the execution of any power granted Lender hereunder, but will suffer and permit the execution of every such power as though no such laws were in force.

11.3. Indemnitor waives any right or claim of right to cause a marshalling of Indemnitor's assets or to cause Lender to proceed against any of the security for the Loan before proceeding under this Agreement against Indemnitor.

11.4. Indemnitor waives and relinquishes any and all rights and remedies which it may have or be able to assert by reason of the provisions of any law pertaining to the rights and remedies of sureties.

11.5. Indemnitor waives the defense of [aches and any applicable statutes of limitation.

11.6. If, for any reason, any payment to Lender of any of the obligations to which this Agreement is applicable is required to be refunded to any party, including, without limitation, by reason of the operation of bankruptcy laws now or hereafter enacted, Indemnitor agrees to pay the amount so required to be paid over by Lender upon demand, and the obligations of Indemnitor hereunder shall not be treated as having been discharged by reason of the payment to Lender giving rise to the obligation of Lender to repay the same; and this Agreement shall be treated as having remained in full force and effect for any such repayment so made by Lender as well as any amount not previously paid to Lender on account of such obligations.

11.7. Indemnitor hereby unconditionally and irrevocably waives any "claim" (as defined in Title 11 of the United States Code) it now has or hereafter acquires against each other or against any other party, and further agrees that it will not assert or exercise against each other or against any other party at any time, and does hereby waive and release, any right of claim to any right of subrogation, reimbursement, indemnity, and contribution or payment for or with respect to any amounts which Indemnitor may pay or be obligated to pay to Lender, including, without limitation, any of the obligations under or with respect to this Agreement.

11.8.Indemnitor hereby unconditionally and irrevocably further waives (a) notice of acceptance of this Indemnity and of any action by Lender in reliance thereon, (b) presentment, demand of payment, notice of dishonor or nonpayment, protest and notice of protest with respect to any of the obligations of Indemnitor hereunder, and (c) the giving of any notice of default or other notice to, or making any demand on anyone (including, without limitation, Indemnitor) liable in any manner for the payment of the obligations of Indemnitor hereunder, but nothing contained in this section shall be deemed to be a waiver of any notice required to be given to Indemnitor pursuant to the Loan Documents.

11.9.A separate cause of action shall be deemed to arise in respect of each default hereunder.

12. SOLVENCY OF INDEMNITOR. Indemnitor further represents and warrants that (a) Indemnitor (i) is solvent, (ii) is able to pay its debts as they mature, (iii) has sufficient capital to carry on its business and (iv) the fair saleable value of its assets is greater than the amount of its liabilities; (b) Indemnitor will not be rendered insolvent by its execution and delivery of this Agreement or by its performance of any or all of its obligations hereunder; (c) Indemnitor does not intend to, nor shall it, incur debts beyond its ability to pay such debts as they mature; and (d) this Agreement was executed, delivered and agreed to by Indemnitor in good faith and in exchange for fair and equivalent consideration.

13. NOTICES. Any notice, request, demand or other communication required or permitted hereunder shall be given in writing by delivering the same in person to the intended addressee, by overnight courier service with guaranteed next day delivery or by certified United States mail, postage prepaid, or telegram sent to the intended addressee at the applicable address set forth herein or to such different address as either Indemnitor or Lender shall have designated by written notice to the other sent in accordance herewith. Copies of all notices to Lender shall also be sent to [LENDER'S COUNSEL]; provided, however, that the inadvertent failure of Indemnitor or Lender to provide copies of notices to respective designated counsel shall not render ineffective notices otherwise given validly. Such notices shall be deemed given when received or, if earlier, in the case of delivery by courier service with guaranteed next day delivery, the next day or the day designated for delivery, or in the case of delivery by certified United States mail, two days after deposit therein. No notice to or demand on Indemnitor in any case shall of itself entitle Indemnitor to any other or further notice or demand in similar or other circumstances.

14. AMENDMENTS. No provision of this Agreement may be changed, waived, discharged or terminated orally, by telephone or by any other means except by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought.

15. JOINT AND SEVERAL LIABILITY. The liabilities of Indemnitor and Guarantor are joint and several; provided, however, that the release by Lender of any person or entity obligated on account of this Agreement shall not release any other person or entity obligated on account of this Agreement. Each reference in the within Agreement to Indemnitor is to Borrower and Guarantor individually and also to them jointly. No person or entity obligated on account of this Agreement may seek contribution from any other person or entity also obligated unless and until all liabilities to Lender from the person or entity from whom contribution is sought have been satisfied in full.

16. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. Said counterparts shall constitute but one and the same instrument and shall be binding upon, and shall inure to the benefit of, each of the undersigned individually as fully and completely as if all had signed but one instrument.

17. INVALIDITY. Indemnitor agrees that the invalidity, irregularity or unenforceability of all or any part of the obligations hereunder or any security therefor shall not affect, impair or be a defense to this Agreement or affect in any manner the liability of Indemnitor hereunder. This Agreement shall be in addition to any other guaranty or security for the obligations hereunder and it shall not be prejudiced or rendered unenforceable by the invalidity of any such other guaranty or security. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. Should any portion of this Agreement be declared invalid for any reason in any jurisdiction, such declaration shall have no effect upon the remaining portions of this Agreement; furthermore, the entirety of this Agreement shall continue in full force and effect in all other jurisdictions and said remaining portions of this Agreement shall continue in full force and effect in the subject jurisdiction as if this Agreement had been executed with the invalid portions thereof deleted.

18. GOVERNING LAW. This Agreement and the rights and obligations of the parties hereunder shall in all respects be deemed to be a contract under seal, governed by, and entered into and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts (without giving effect to principles of conflicts of law of the Commonwealth of Massachusetts).

19. CONSENT TO JURISDICTION. Indemnitor hereby irrevocably submits to the nonexclusive jurisdiction of any Massachusetts state or federal court sitting in the city of Boston (or any county in the Commonwealth of Massachusetts where any portion of the property is located) over any suit, action or proceeding arising out of or relating to this agreement, and Indemnitor hereby agrees and consents that, in addition to any methods of service of process provided for under applicable law, all service of process in any such suit, action or proceeding in any Massachusetts or federal court sitting in the city of Boston (or such other county in the Commonwealth of Massachusetts) may be made by certified or registered mail, return receipt requested, directed to Indemnitor at its address indicated on the cover page hereof, and service so made shall be complete five (5) days after the same shall have been so mailed.

20. WAIVER OF RIGHT TO JURY TRIAL. Indemnitor hereby irrevocably and unconditionally waives any and all right to trial by jury in any action, suit or counterclaim related in any way to this agreement.

IN WITNESS WHEREOF, Indemnitor has caused this Agreement to be executed as of the date first written above.

(signatures, with acknowledgements)

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