B ATTACHED HERETO.
THE O&M
PROGRAM SHALL BE SUBJECT TO LENDER'S APPROVAL AND WITHIN FORTY-FIVE (45) DAYS OF
THE DATE HEREOF BORROWER SHALL PROVIDE LENDER WITH EVIDENCE REASONABLY
SATISFACTORY TO LENDER THAT THE O&M PROGRAM HAS BEEN ESTABLISHED AND IS IN
OPERATION.
2.
COMPLIANCE WITH O&M PROGRAM.
BORROWER HEREBY COVENANTS AND
AGREES THAT DURING THE TERM OF THE LOAN, INCLUDING ANY EXTENSION OR RENEWAL
THEREOF, BORROWER SHALL COMPLY IN ALL RESPECT WITH THE TERMS AND CONDITIONS OF
THE O&M PROGRAM.
3.
DEFAULT UNDER NOTE AND LOAN AGREEMENT.
BORROWER HEREBY
ACKNOWLEDGES AND AGREES THAT IF BORROWER FAILS TO COMPLY IN ALL MATERIAL
RESPECTS WITH THE TERMS AND CONDITIONS OF THE O&M PROGRAM, AND SUCH FAILURE
CONTINUES FOR A PERIOD OF THIRTY (30) DAYS AFTER WRITTEN NOTICE THEREOF, SUCH
FAILURE WILL CONSTITUTE AN EVENT OF DEFAULT UNDER THE LOAN AGREEMENT.
4.
SUCCESSORS AND ASSIGNS BOUND.
THIS AGREEMENT SHALL BE BINDING
UPON BORROWER AND LENDER AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND SHALL
INURE TO THE BENEFIT OF AND MAY BE ENFORCED BY LENDER AND IT SUCCESSORS,
TRANSFEREES AND ASSIGNS.
BORROWER SHALL NOT ASSIGN ANY OF ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LENDER,
UNLESS EXPRESSLY PERMITTED IN THE LOAN AGREEMENT.
5.
APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED IN ACCORDANCE
WITH THE TERMS AND PROVISIONS OF SECTION 10.3 OF THE LOAN AGREEMENT.
6.
HAZARDOUS MATERIALS COVENANTS OF THE BORROWER.
LENDER'S
REQUIREMENT THAT THE BORROWER DEVELOP AND COMPLY WITH THE O&M PROGRAM SHALL NOT
BE DEEMED TO CONSTITUTE A WAIVER OR A MODIFICATION OF ANY OF THE BORROWER'S
REPRESENTATIONS, COVENANTS OR AGREEMENTS WITH RESPECT TO ENVIRONMENTAL MATTERS
SET FORTH IN THE LOAN AGREEMENT, SECURITY INSTRUMENT OR ANY OTHER LOAN DOCUMENT.
7.
INDEMNIFICATION.
BORROWER SHALL PROTECT, INDEMNIFY, AND HOLD
HARMLESS LENDER AND ITS SUCCESSORS AND ASSIGNS, RESPECTIVE PARENTS, SUBSIDIARIES
AND AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS,
MANAGERS, EMPLOYEES AND AGENTS, AND THEIR RESPECTIVE HEIRS, LEGAL
REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "INDEMNITEES" AND,
EACH, AN "INDEMNITEE"), FROM AND AGAINST ALL LIABILITIES, OBLIGATIONS, CLAIMS,
DEMANDS, DAMAGES, PENALTIES, CAUSES OF ACTION, LOSSES, FINES, COSTS AND EXPENSES
(INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES AND EXPENSES), IMPOSED
UPON OR INCURRED BY OR ASSERTED AGAINST LENDER BY REASON OF BORROWER'S FAILURE
TO ADOPT, IMPLEMENT AND CARRY OUT AN O&M PROGRAM AS REQUIRED UNDER THIS
AGREEMENT.
8.
SURVIVAL OF OBLIGATIONS.
EACH AND ALL OF THE COVENANTS AND
AGREEMENTS AND INDEMNITIES CONTAINED IN THIS AGREEMENT SHALL TERMINATE UPON SALE
OR SIMILAR DISPOSITION OF THE PROPERTY BY BORROWER, OTHER THAN TO ANY OF
BORROWER'S AFFILIATES.
THIS AGREEMENT IS NOT INTENDED TO BE, NOR SHALL IT BE,
SECURED BY THE SECURITY INSTRUMENT, AND IT IS NOT INTENDED TO SECURE PAYMENT OF
THE NOTE.
2
9.
CONTINUATION OF OBLIGATIONS UNDER OTHER LOAN DOCUMENTS.
NOTHING
HEREIN CONTAINED SHALL IN ANY MANNER WHATSOEVER ALTER, IMPAIR OR AFFECT THE
OBLIGATIONS OF BORROWER, OR RELIEVE BORROWER OF ANY OF ITS OBLIGATIONS, TO MAKE
PAYMENT ALL AND TO PERFORM OF ITS OTHER OBLIGATIONS REQUIRED PURSUANT TO THE
NOTE, THE LOAN AGREEMENT,