BE EFFECTED BY INDEMNITOR WITHOUT THE
INDEMNIFIED PARTY'S CONSENT (WHICH SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED) UNLESS (I) THERE IS NO FINDING OR ADMISSION OF ANY VIOLATION OF LAW OR
ANY VIOLATION OF THE RIGHTS OF ANY PERSON AND NO EFFECT ON ANY OTHER CLAIMS THAT
MAY BE MADE AGAINST THE INDEMNIFIED PARTY AND (II) THE SOLE RELIEF PROVIDED IS
MONETARY DAMAGES THAT ARE PAID IN FULL BY INDEMNITOR AND (B) INDEMNITOR SHALL
HAVE NO LIABILITY WITH RESPECT TO ANY COMPROMISE OR SETTLEMENT THEREOF EFFECTED
WITHOUT ITS CONSENT (WHICH SHALL NOT BE UNREASONABLY WITHHELD).
3.
ASSESSMENT; REMEDIATION.
A.
THE AGENT SHALL HAVE THE RIGHT TO
REQUIRE INDEMNITOR, AT ITS OWN COST AND EXPENSE, TO OBTAIN A PROFESSIONAL
ENVIRONMENTAL ASSESSMENT FOR ANY PROPERTY IN ACCORDANCE WITH THE AGENT'S THEN
STANDARD ENVIRONMENTAL ASSESSMENT REQUIREMENTS, PROVIDED THAT SUCH REQUIREMENTS
ARE CONSISTENT WITH THE REASONABLE GUIDELINES OF PHASE I OR PHASE II
ENVIRONMENTAL SITE ASSESSMENTS AS ESTABLISHED BY THE AGENT CONSISTENTLY APPLIED
IN SIMILAR SITUATIONS UPON THE OCCURRENCE OF ANY ONE OR MORE OF THE FOLLOWING
EVENTS: (I) AN EVENT OF DEFAULT BUT ONLY DURING THE CONTINUANCE THEREOF; OR (II)
UPON THE AGENT OBTAINING KNOWLEDGE OF THE OCCURRENCE OF A RELEASE OR THREAT OF
RELEASE ON, IN, ON, UNDER OR AFFECTING THE SAID PROPERTY AND THE DETERMINATION
BY THE AGENT THAT SUCH RELEASE OR THREAT OF RELEASE COULD REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT.
B.
IN THE EVENT THAT INDEMNITOR DOES NOT
COMMENCE ANY SUCH ENVIRONMENTAL ASSESSMENT WITHIN FORTY-FIVE (45) DAYS OF THE
WRITTEN REQUEST THEREFOR BY THE AGENT, THE AGENT MAY, AT INDEMNITOR'S COST AND
EXPENSE, CAUSE SUCH ENVIRONMENTAL ASSESSMENT TO BE UNDERTAKEN.
C.
ANY AMOUNTS PAID OR ADVANCED BY THE
AGENT AND ALL COSTS AND EXPENDITURES INCURRED IN CONNECTION WITH ANY ACTION
TAKEN PURSUANT TO THE TERMS OF THIS INDEMNITY AGREEMENT, INCLUDING BUT NOT
LIMITED TO REASONABLE ENVIRONMENTAL CONSULTANTS' AND EXPERTS' FEES AND EXPENSES,
ATTORNEYS' FEES AND EXPENSES, COURT COSTS AND ALL COSTS OF ASSESSMENT MONITORING
CLEAN-UP, CONTAINMENT, REMEDIATION, REMOVAL AND RESTORATION, WITH INTEREST
THEREON AT THE DEFAULT RATE, SHALL BE A
4
DEMAND OBLIGATION OF INDEMNITOR TO THE AGENT, AND SHALL BE ADDED TO THE
OBLIGATIONS SECURED BY THE COLLATERAL AND SHALL BE SECURED BY THE LIEN OF THE
SECURITY DOCUMENTS AS FULLY AND AS EFFECTIVELY AND WITH THE SAME PRIORITY AS
EVERY OTHER OBLIGATION SECURED THEREBY.
4.
SURVIVAL.
A.
THE INDEMNITY SET FORTH ABOVE IN
PARAGRAPH 2 SHALL SURVIVE THE REPAYMENT OF THE LOAN AND ANY EXERCISE BY THE
AGENT OF ANY REMEDIES UNDER THE LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT.
B.
IT IS AGREED AND INTENDED BY INDEMNITOR
AND THE AGENT THAT THE INDEMNITY SET FORTH ABOVE IN PARAGRAPH 2 MAY BE ASSIGNED
OR OTHERWISE TRANSFERRED BY THE AGENT TO ITS SUCCESSORS AND ASSIGNS AND TO ANY
SUBSEQUENT PURCHASER OF ALL OR ANY PORTION OF THE LOAN BY, THROUGH OR UNDER THE
AGENT, WITHOUT NOTICE TO INDEMNITOR AND WITHOUT ANY FURTHER CONSENT OF
INDEMNITOR.
TO THE EXTENT CONSENT OF ANY SUCH ASSIGNMENT OR