LENDER TO JOIN AND PARTICIPATE IN, AS A PARTY IF IT SO ELECTS, ANY
LEGAL OR ADMINISTRATIVE PROCEEDINGS OR OTHER ACTIONS INITIATED WITH RESPECT TO
THE PROPERTY IN CONNECTION WITH ANY ENVIRONMENTAL LAW OR HAZARDOUS SUBSTANCE TO
THE EXTENT SUCH ACTION COULD REASONABLY BE EXPECTED TO AFFECT THE RIGHTS OF
LENDER UNDER ANY LOAN DOCUMENT, AND BORROWER SHALL PAY ALL REASONABLE ATTORNEYS'
FEES AND DISBURSEMENTS INCURRED BY LENDER IN CONNECTION THEREWITH.
38
(B)
UPON LENDER'S REASONABLE REQUEST, AT ANY TIME AND FROM TIME TO
TIME (BUT NOT MORE THAN ONCE IN ANY TWELVE (12) MONTH PERIOD, UNLESS LENDER HAS
A GOOD FAITH BELIEF THAT THERE IS A VIOLATION OF ENVIRONMENTAL LAWS OR A RELEASE
OF HAZARDOUS SUBSTANCES AT OR NEAR THE PROPERTY), BORROWER SHALL PROVIDE AN
INSPECTION OR AUDIT OF THE PROPERTY PREPARED BY A LICENSED HYDROGEOLOGIST,
LICENSED ENVIRONMENTAL ENGINEER OR QUALIFIED ENVIRONMENTAL CONSULTING FIRM
APPROVED BY LENDER ASSESSING THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES ON,
IN OR NEAR THE PROPERTY, AND IF LENDER IN ITS GOOD FAITH JUDGMENT DETERMINES
THAT REASONABLE CAUSE EXISTS FOR THE PERFORMANCE OF SUCH ENVIRONMENTAL
INSPECTION OR AUDIT, THEN THE COST AND EXPENSE OF SUCH AUDIT OR INSPECTION SHALL
BE PAID BY BORROWER.
SUCH INSPECTIONS AND AUDIT MAY INCLUDE SOIL BORINGS AND
GROUND WATER MONITORING.
IF BORROWER FAILS TO PROVIDE ANY SUCH INSPECTION OR
AUDIT WITHIN THIRTY (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 THIRTY (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
REASONABLY APPROVED IN ADVANCE BY LENDER AND UNDER THE 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