THE INDEBTEDNESS
SECURED HEREBY AND SHALL BE IN ADDITION TO ALL OTHER RIGHTS OF LENDER UNDER THIS
AGREEMENT, THE MORTGAGE, THE NOTE AND THE OTHER LOAN DOCUMENTS. THE FOREGOING
INDEMNITY IN THIS SECTION 16.01(C) SHALL NOT INCLUDE ANY COSTS WHICH ARISE
DIRECTLY FROM (X) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LENDER OR ANY
AGENTS, CONTRACTORS OR INVITEES OF LENDER, OR (Y) HAZARDOUS MATERIALS WHICH ARE
INITIALLY PLACED IN, ON OR UNDER THE PROJECT AFTER THE FORECLOSURE, DEED-IN-LIEU
OR OTHER TAKING OF TITLE BY LENDER, ITS SUCCESSORS AND ASSIGNS.
(D)
UPON LENDER'S REQUEST, AT ANY TIME AFTER THE OCCURRENCE AND DURING
THE CONTINUANCE OF AN EVENT OF DEFAULT HEREUNDER OR AT SUCH OTHER TIME AS LENDER
HAS REASONABLE GROUNDS TO BELIEVE THAT HAZARDOUS MATERIALS ARE OR HAVE BEEN
RELEASED, STORED OR DISPOSED OF ON OR AROUND THE PROJECT IN VIOLATION OF ANY
ENVIRONMENTAL STATUTES OR THIS AGREEMENT OR THAT THE PROJECT MAY OTHERWISE BE IN
VIOLATION OF THE ENVIRONMENTAL STATUTES, BORROWER SHALL PROVIDE TO LENDER, AT
BORROWER'S SOLE COST AND EXPENSE, AN INSPECTION OR AUDIT OF THE PROJECT PREPARED
BY A HYDROGEOLOGIST OR ENVIRONMENTAL ENGINEER OR OTHER APPROPRIATE CONSULTANT
REASONABLY APPROVED BY LENDER INDICATING THE PRESENCE OR ABSENCE OF HAZARDOUS
MATERIALS ON THE PROJECT IN VIOLATION OF ANY ENVIRONMENTAL STATUTES OR THIS
AGREEMENT OR AN INSPECTION OR AUDIT OF THE IMPROVEMENTS PREPARED BY AN
ENGINEERING OR CONSULTING FIRM REASONABLY APPROVED BY LENDER INDICATING THE
PRESENCE OR ABSENCE OF FRIABLE ASBESTOS OR SUBSTANCES CONTAINING ASBESTOS ON THE
PROJECT. IF BORROWER FAILS TO PROVIDE SUCH INSPECTION OR AUDIT WITHIN FORTY-FIVE
(45) DAYS AFTER SUCH REQUEST, LENDER MAY, UPON NOTICE TO BORROWER, ORDER THE
SAME, AND BORROWER HEREBY GRANTS TO LENDER AND ITS EMPLOYEES AND AGENTS ACCESS
TO THE PROJECT AND A LICENSE TO UNDERTAKE SUCH INSPECTION OR AUDIT. THE COST OF
SUCH INSPECTION OR AUDIT, TOGETHER WITH DEFAULT RATE INTEREST THEREON FROM THE
DATE INCURRED BY LENDER UNTIL ACTUALLY PAID BY BORROWER, SHALL BE IMMEDIATELY
DUE AND PAYABLE TO LENDER BY BORROWER ON DEMAND AND SHALL BE SECURED HEREBY AND
BY ALL OF THE OTHER LOAN DOCUMENTS SECURING ALL OR ANY PART OF THE INDEBTEDNESS
EVIDENCED BY THE NOTE.
(E)
IN THE EVENT OF A CONFLICT OR INCONSISTENCY BETWEEN ANY PROVISION
OF THIS AGREEMENT AND ANY PROVISION OF THE HAZARDOUS SUBSTANCES INDEMNITY
AGREEMENT, THE PROVISION THAT AFFORDS TO LENDER THE GREATEST PROTECTION AND/OR
BROADEST RIGHTS AND REMEDIES SHALL BE CONTROLLING.
(F)
IF, AT ANY TIME HEREAFTER, BORROWER OR LENDER ACQUIRES KNOWLEDGE
OR REASONABLY SUSPECTS THAT LEAD BASED PAINT IS PRESENT ON THE PROJECT, BORROWER
AGREES, AT ITS SOLE COST AND EXPENSE AND WITHIN THIRTY (30) DAYS THEREAFTER, TO
CAUSE TO BE PREPARED A LEAD BASED PAINT REPORT PREPARED BY AN EXPERT, AND IN
FORM, SCOPE AND SUBSTANCE, REASONABLY ACCEPTABLE TO LENDER.
(G)
BORROWER AGREES THAT IF IT HAS BEEN, OR IF AT ANY TIME HEREAFTER
IT IS, DETERMINED THAT THE PROJECT CONTAINS LEAD BASED PAINT, ON OR BEFORE
THIRTY (30) DAYS FOLLOWING (I) THE DATE HEREOF, IF SUCH DETERMINATION WAS MADE
PRIOR