TAKEN, TO
ADDRESS SUCH NONCOMPLIANCE.
F.
THE BORROWER AGREES THAT THE AGENT MAY, FROM TIME TO TIME,
RETAIN, AT THE BORROWER'S EXPENSE, AN INDEPENDENT PROFESSIONAL CONSULTANT
REASONABLY ACCEPTABLE TO THE BORROWER TO REVIEW ANY REPORT RELATING TO HAZARDOUS
MATERIALS OR BORROWER'S OR ITS SUBSIDIARIES' COMPLIANCE WITH ENVIRONMENTAL LAWS
(INCLUDING THE EQUATOR PRINCIPLES) PREPARED BY OR FOR THE BORROWER AND TO
CONDUCT THEIR OWN INVESTIGATION (THE SCOPE OF WHICH INVESTIGATION SHALL BE
REASONABLE BASED UPON THE CIRCUMSTANCES) OF ANY REAL PROPERTY ASSET CURRENTLY
OWNED, LEASED, OPERATED OR USED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, IF
(X) A DEFAULT OR AN EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING,
(Y) IN CONNECTION WITH REVIEW OF DRAFTS, UPDATES AND/OR REVISIONS TO THE
ENVIRONMENTAL IMPACT ASSESSMENT AND ENVIRONMENTAL MANAGEMENT PLAN, OR (Z) THE
AGENT REASONABLY BELIEVES (1) THAT AN OCCURRENCE RELATING TO SUCH REAL PROPERTY
ASSET IS LIKELY TO GIVE RISE TO AN ENVIRONMENTAL LIABILITY, (2) THAT A VIOLATION
OF AN ENVIRONMENTAL LAW ON OR AROUND SUCH REAL PROPERTY ASSET HAS OCCURRED OR IS
LIKELY TO OCCUR, OR (3) THAT A MATERIAL VIOLATION OF THE EQUATOR PRINCIPLES OR
THE ENVIRONMENTAL MANAGEMENT PLAN HAS OCCURRED OR IS LIKELY TO OCCUR, WHICH
COULD, IN THE CASE OF SUBCLAUSES (1)-(3) ABOVE, REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
THE BORROWER SHALL USE ITS COMMERCIALLY REASONABLE
EFFORTS TO OBTAIN FOR THE AGENT AND ITS AGENTS, EMPLOYEES, CONSULTANTS AND
CONTRACTORS THE RIGHT, UPON REASONABLE NOTICE TO THE BORROWER, TO ENTER INTO OR
ON TO THE REAL PROPERTY ASSETS CURRENTLY OWNED, LEASED, OPERATED OR USED BY THE
BORROWER OR ANY OF ITS SUBSIDIARIES TO PERFORM SUCH TESTS ON SUCH PROPERTY AS
ARE REASONABLY NECESSARY TO CONDUCT SUCH A REVIEW AND/OR INVESTIGATION;
PROVIDED, HOWEVER, THAT NO INVASIVE OR DESTRUCTIVE ENVIRONMENTAL TESTING SHALL
BE UNDERTAKEN WITHOUT BORROWER'S APPROVAL, NOT TO BE UNREASONABLY WITHHELD,
CONDITIONED, OR DELAYED OR IF RECOMMENDED BY AGENT'S INDEPENDENT CONSULTANT
(EXCEPT DURING THE CONTINUATION OF AN EVENT OF DEFAULT WHEN NO SUCH APPROVAL OF
BORROWER SHALL BE REQUIRED).
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
ANY SUCH INVESTIGATION OF ANY REAL PROPERTY ASSET SHALL BE CONDUCTED, UNLESS
OTHERWISE AGREED TO BY THE BORROWER AND THE AGENT, DURING NORMAL BUSINESS HOURS
AND, SHALL BE CONDUCTED SO AS NOT TO UNREASONABLY INTERFERE WITH THE ONGOING
OPERATIONS AT ANY SUCH REAL PROPERTY ASSET OR TO CAUSE ANY DAMAGE OR LOSS TO ANY
PROPERTY AT SUCH REAL PROPERTY ASSET.
THE BORROWER AND THE AGENT HEREBY
ACKNOWLEDGE AND AGREE THAT ANY REPORT OF ANY INVESTIGATION CONDUCTED AT THE
REQUEST OF THE AGENT PURSUANT TO THIS SECTION 5.9B WILL BE OBTAINED AND SHALL BE
USED BY THE AGENT AND THE LENDERS FOR THE PURPOSES OF THE LENDERS' INTERNAL
CREDIT DECISIONS, TO MONITOR AND POLICE THE LOANS AND TO PROTECT THE LENDERS'
SECURITY INTERESTS, IF ANY, CREATED BY THE LOAN DOCUMENTS, AND THE AGENT AND THE
LENDERS HEREBY ACKNOWLEDGE AND AGREE ANY SUCH REPORT WILL BE KEPT CONFIDENTIAL
BY THEM TO THE EXTENT PERMITTED BY LAW EXCEPT AS PROVIDED IN THE