REMEDIAL WORK, LENDER MAY (BUT SHALL NOT BE OBLIGATED TO) CAUSE
SUCH REMEDIAL WORK TO BE PERFORMED AT BORROWER'S EXPENSE.
NOTWITHSTANDING THE
FOREGOING, BORROWER SHALL NOT BE REQUIRED TO COMMENCE SUCH REMEDIAL WORK WITHIN
THE ABOVE SPECIFIED TIME PERIOD:
(X) IF PREVENTED FROM DOING SO BY ANY
GOVERNMENTAL AUTHORITY, (Y) IF COMMENCING SUCH REMEDIAL WORK WITHIN SUCH TIME
PERIOD WOULD RESULT IN BORROWER OR SUCH REMEDIAL WORK VIOLATING ANY
ENVIRONMENTAL LAW, OR (Z) IF BORROWER, AT ITS EXPENSE AND AFTER PRIOR WRITTEN
NOTICE TO LENDER, IS CONTESTING BY APPROPRIATE LEGAL, ADMINISTRATIVE OR OTHER
PROCEEDINGS, CONDUCTED IN GOOD FAITH AND WITH DUE DILIGENCE, THE NEED TO PERFORM
REMEDIAL WORK.
BORROWER SHALL HAVE THE RIGHT TO CONTEST THE NEED TO PERFORM
SUCH REMEDIAL WORK, PROVIDED THAT, (1) BORROWER IS PERMITTED BY THE APPLICABLE
ENVIRONMENTAL LAWS TO DELAY PERFORMANCE OF THE REMEDIAL WORK PENDING SUCH
PROCEEDINGS, (2) NEITHER THE PROPERTY NOR ANY PART THEREOF OR INTEREST THEREIN
WILL BE SOLD, FORFEITED OR LOST IF BORROWER FAILS TO PROMPTLY PERFORM THE
REMEDIAL WORK BEING CONTESTED, AND IF BORROWER FAILS TO PREVAIL IN CONTEST,
BORROWER WOULD THEREAFTER HAVE THE OPPORTUNITY TO PERFORM SUCH REMEDIAL WORK,
(3) LENDER WOULD NOT, BY VIRTUE OF SUCH PERMITTED CONTEST, BE EXPOSED TO ANY
RISK OF ANY CIVIL LIABILITY FOR WHICH BORROWER HAS NOT FURNISHED ADDITIONAL
SECURITY AS PROVIDED IN CLAUSE
39
(4) BELOW, OR TO ANY RISK OF CRIMINAL LIABILITY, AND NEITHER THE PROPERTY NOR
ANY INTEREST THEREIN WOULD BE SUBJECT TO THE IMPOSITION OF ANY LIEN FOR WHICH
BORROWER HAS NOT FURNISHED ADDITIONAL SECURITY AS PROVIDED IN CLAUSE (4) BELOW,
AS A RESULT OF THE FAILURE TO PERFORM SUCH REMEDIAL WORK AND (4) BORROWER SHALL
HAVE FURNISHED TO LENDER ADDITIONAL SECURITY IN RESPECT OF THE REMEDIAL WORK
BEING CONTESTED AND THE LOSS OR DAMAGE THAT MAY RESULT FROM BORROWER'S FAILURE
TO PREVAIL IN SUCH CONTEST IN SUCH AMOUNT AS MAY BE REASONABLY REQUESTED BY
LENDER BUT IN NO EVENT LESS THAN 125% OF THE COST OF SUCH REMEDIAL WORK AS
ESTIMATED BY LENDER OR LENDER'S CONSULTANT AND ANY LOSS OR DAMAGE THAT MAY
RESULT FROM BORROWER'S FAILURE TO PREVAIL IN SUCH CONTEST.
(D)
BORROWER SHALL NOT INSTALL OR PERMIT TO BE INSTALLED ON THE
PROPERTY ANY UNDERGROUND STORAGE TANK.
5.8.3
O & M Program. The environmental report delivered to Lender in
connection with the Loan recommends the development of or continued compliance
with an operation and maintenance program for the Property (including, without
limitation, with respect to the presence of asbestos and/or lead-based paint)
("O & M Program"), Borrower shall develop (or continue to comply with, as the
case may be) such O & M Program and shall, during the term of the Loan,
including any extension or renewal thereof, comply in all material respects with
the terms and conditions of the O & M Program.
5.9
Title to the Property.
Borrower will warrant and defend its fee
title to the Property, and the validity and priority of all Liens granted or
otherwise given to Lender under