LOCATE, PRODUCE, TREAT, TRANSPORT, INCORPORATE,
DISCHARGE, EMIT, RELEASE, DEPOSIT OR DISPOSE OF ANY HAZARDOUS SUBSTANCE IN,
UPON, UNDER, OVER OR FROM ANY PROPERTY OWNED OR HELD BY BORROWER, EXCEPT IN
ACCORDANCE WITH ALL ENVIRONMENTAL LAWS AND ENVIRONMENTAL REGULATIONS; BORROWER
SHALL NOT PERMIT ANY HAZARDOUS SUBSTANCE TO BE LOCATED, PRODUCED, TREATED,
TRANSPORTED, INCORPORATED, DISCHARGED, EMITTED, RELEASED, DEPOSITED, DISPOSED OF
OR TO ESCAPE IN, UPON, UNDER, OVER OR FROM ANY PROPERTY OWNED OR HELD BY
BORROWER, EXCEPT IN ACCORDANCE WITH ENVIRONMENTAL LAWS AND ENVIRONMENTAL
REGULATIONS; AND BORROWER SHALL COMPLY WITH ALL ENVIRONMENTAL LAWS AND
ENVIRONMENTAL REGULATIONS WHICH ARE APPLICABLE TO SUCH PROPERTY.
IF LENDER
REASONABLY BELIEVES THAT AN ENVIRONMENTAL LAW OR ENVIRONMENTAL REGULATION HAS
BEEN VIOLATED BY BORROWER'S ACTIVITIES UPON PROPERTY OWNED OR HELD BY BORROWER,
AND IF LENDER SO REQUESTS, BORROWER SHALL ARRANGE FOR THE PREPARATION OF AN
ENVIRONMENTAL REVIEW, AUDIT, ASSESSMENT AND/OR REPORT RELATING TO THE SUBJECT
PROPERTY, AT BORROWER'S SOLE COST AND EXPENSE, BY AN ENGINEER OR OTHER
ENVIRONMENTAL EXPERT ACCEPTABLE TO LENDER. BORROWER SHALL INDEMNIFY THE
INDEMNIFIED PARTIES AGAINST, AND SHALL REIMBURSE THE INDEMNIFIED PARTIES FOR,
ANY AND ALL CLAIMS, DEMANDS, JUDGMENTS, PENALTIES, LIABILITIES, COSTS, DAMAGES
AND EXPENSES, INCLUDING COURT COSTS AND ATTORNEYS' FEES INCURRED BY THE
INDEMNIFIED PARTIES (PRIOR TO TRIAL, AT TRIAL AND ON APPEAL) IN ANY ACTION
AGAINST OR INVOLVING THE INDEMNIFIED PARTIES, RESULTING FROM ANY BREACH OF THE
FOREGOING COVENANTS IN THIS SECTION OR THE COVENANTS IN SECTION 9.5 HEREOF, OR
FROM THE DISCOVERY OF ANY HAZARDOUS SUBSTANCE IN, UPON, UNDER OR OVER, OR
EMANATING FROM, SUCH PROPERTY, IT BEING THE INTENT OF BORROWER AND THE
INDEMNIFIED PARTIES THAT THE INDEMNIFIED PARTIES SHALL HAVE NO LIABILITY OR
RESPONSIBILITY FOR DAMAGE OR INJURY TO HUMAN
39
HEALTH, THE ENVIRONMENTAL OR NATURAL RESOURCES CAUSED BY, FOR ABATEMENT AND/OR
CLEAN-UP OF, OR OTHERWISE WITH RESPECT TO, HAZARDOUS SUBSTANCES BY VIRTUE OF THE
INTEREST OF LENDER IN THE PROPERTY CREATED BY ANY DOCUMENTS SECURING BANK DEBT
(INCLUDING WITHOUT LIMITATION THE LOAN DOCUMENTS) OR AS THE RESULT OF LENDER
EXERCISING ANY OF ITS RIGHTS OR REMEDIES WITH RESPECT THERETO, INCLUDING BUT NOT
LIMITED TO BECOMING THE OWNER THEREOF BY FORECLOSURE OR CONVEYANCE IN LIEU OF
FORECLOSURE; PROVIDED THAT SUCH INDEMNIFICATION AS IT APPLIES TO THE EXERCISE BY
LENDER OF ITS RIGHTS OR REMEDIES WITH RESPECT TO THE LOAN DOCUMENTS SHALL NOT
APPLY TO CLAIMS ARISING SOLELY WITH RESPECT TO HAZARDOUS SUBSTANCES BROUGHT ONTO
SUCH PROPERTY BY LENDER OR ITS SUCCESSORS OR ASSIGNS WHILE ENGAGED IN ACTIVITIES
OTHER THAN OPERATIONS SUBSTANTIALLY THE SAME AS THE OPERATIONS PREVIOUSLY
CONDUCTED ON SUCH PROPERTY BY BORROWER.
THE FOREGOING COVENANTS OF THIS
SECTION SHALL BE DEEMED CONTINUING COVENANTS FOR THE BENEFIT OF THE INDEMNIFIED
PARTIES, AND ANY SUCCESSORS AND ASSIGNS OF THE INDEMNIFIED PARTIES, INCLUDING
BUT NOT LIMITED TO THE HOLDER OF ANY CERTIFICATE OF PURCHASE, ANY TRANSFEREE OF
THE TITLE OF LENDER OR ANY SUBSEQUENT OWNER OF THE PROPERTY, AND SHALL SURVIVE
THE SATISFACTION OR RELEASE OF ANY LIEN, ANY FORECLOSURE OF ANY LIEN AND/OR ANY
ACQUISITION OF TITLE TO THE PROPERTY