INSPECTIONS AND AUDIT MAY INCLUDE
SOIL BORINGS AND GROUND WATER MONITORING.
IF BORROWER FAILS TO PROVIDE ANY SUCH
INSPECTION OR AUDIT WITHIN 30 DAYS AFTER SUCH REQUEST, LENDER MAY ORDER SAME,
AND BORROWER HEREBY GRANTS TO LENDER AND ITS EMPLOYEES AND AGENTS ACCESS TO THE
PROPERTY AND A LICENSE TO UNDERTAKE SUCH INSPECTION OR AUDIT.
(C)
IF ANY ENVIRONMENTAL SITE ASSESSMENT REPORT PREPARED IN CONNECTION
WITH SUCH INSPECTION OR AUDIT RECOMMENDS THAT AN OPERATIONS AND MAINTENANCE PLAN
BE IMPLEMENTED FOR ANY HAZARDOUS SUBSTANCE, WHETHER SUCH HAZARDOUS SUBSTANCE
EXISTED PRIOR TO THE OWNERSHIP OF THE PROPERTY BY BORROWER, OR PRESENTLY EXISTS
OR IS REASONABLY SUSPECTED OF EXISTING, BORROWER SHALL CAUSE SUCH OPERATIONS AND
MAINTENANCE PLAN TO BE PREPARED AND IMPLEMENTED AT ITS EXPENSE UPON REQUEST OF
LENDER, AND WITH RESPECT TO ANY TOXIC MOLD, BORROWER SHALL TAKE ALL ACTION
NECESSARY TO CLEAN AND DISINFECT ANY PORTIONS OF THE IMPROVEMENTS AFFECTED BY
TOXIC MOLD IN OR ABOUT THE IMPROVEMENTS, INCLUDING PROVIDING ANY NECESSARY
MOISTURE CONTROL SYSTEMS AT THE PROPERTY.
IF ANY INVESTIGATION, SITE
MONITORING, CONTAINMENT, CLEANUP, REMOVAL, RESTORATION OR OTHER WORK OF ANY KIND
IS REASONABLY NECESSARY UNDER AN APPLICABLE ENVIRONMENTAL LAW ("REMEDIAL WORK"),
BORROWER SHALL COMMENCE ALL SUCH REMEDIAL WORK WITHIN 30 DAYS AFTER WRITTEN
DEMAND BY LENDER AND THEREAFTER DILIGENTLY PROSECUTE TO COMPLETION ALL SUCH
REMEDIAL WORK WITHIN SUCH PERIOD OF TIME AS MAY BE REQUIRED UNDER APPLICABLE
LAW).
ALL REMEDIAL WORK SHALL BE PERFORMED BY LICENSED CONTRACTORS APPROVED IN
ADVANCE BY LENDER AND UNDER THE
40
SUPERVISION OF A CONSULTING ENGINEER APPROVED BY LENDER.
ALL COSTS OF SUCH
REMEDIAL WORK SHALL BE PAID BY BORROWER, INCLUDING LENDER'S REASONABLE
ATTORNEYS' FEES AND DISBURSEMENTS INCURRED IN CONNECTION WITH THE MONITORING OR
REVIEW OF SUCH REMEDIAL WORK.
IF BORROWER DOES NOT TIMELY COMMENCE AND
DILIGENTLY PROSECUTE TO COMPLETION THE 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, ARE 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 ARE
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 A 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