(BUT SHALL NOT BE OBLIGATED TO), UPON NOT LESS THAN TEN (10) DAYS' PRIOR WRITTEN
NOTICE TO THE BORROWERS, CAUSE SUCH REMEDIAL WORK TO BE PERFORMED AT THE
BORROWERS' EXPENSE.
NOTWITHSTANDING THE FOREGOING, THE BORROWERS 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 ANY BORROWER OR SUCH
REMEDIAL WORK VIOLATING ANY ENVIRONMENTAL LAW, OR (Z) IF THE BORROWERS, AT THEIR
EXPENSE AND AFTER PRIOR WRITTEN NOTICE TO LENDER, IS CONTESTING BY APPROPRIATE
LEGAL, ADMINISTRATIVE OR OTHER PROCEEDINGS, CONDUCTED IN GOOD FAITH AND WITH DUE
DILIGENCE, THE NEED TO PERFORM REMEDIAL
42
WORK.
THE BORROWERS SHALL HAVE THE RIGHT TO CONTEST THE NEED TO PERFORM SUCH
REMEDIAL WORK, PROVIDED THAT, (1) THE BORROWERS ARE PERMITTED BY THE APPLICABLE
ENVIRONMENTAL LAWS TO DELAY PERFORMANCE OF THE REMEDIAL WORK PENDING SUCH
PROCEEDINGS, (2) NEITHER SUCH PROPERTY NOR ANY PART THEREOF OR INTEREST THEREIN
WILL BE SOLD, FORFEITED OR LOST IF THE BORROWERS FAIL TO PROMPTLY PERFORM THE
REMEDIAL WORK BEING CONTESTED, AND IF THE BORROWERS FAIL TO PREVAIL IN THE
CONTEST, THE BORROWERS WOULD THEREAFTER HAVE THE OPPORTUNITY TO PERFORM SUCH
REMEDIAL WORK, (3) LENDER WOULD NOT, BY VIRTUE OF SUCH PERMITTED CONTEST, BE
EXPOSED TO ANY RISK OF ANY CIVIL LIABILITY FOR WHICH THE BORROWERS HAVE NOT
FURNISHED ADDITIONAL SECURITY AS PROVIDED IN CLAUSE (4) BELOW, OR TO ANY RISK OF
CRIMINAL LIABILITY, AND NEITHER SUCH PROPERTY NOR ANY INTEREST THEREIN WOULD BE
SUBJECT TO THE IMPOSITION OF ANY LIEN FOR WHICH THE BORROWERS HAVE NOT FURNISHED
ADDITIONAL SECURITY AS PROVIDED IN CLAUSE (4) BELOW, AS A RESULT OF THE FAILURE
TO PERFORM SUCH REMEDIAL WORK AND (4) THE BORROWERS SHALL HAVE FURNISHED TO
LENDER ADDITIONAL SECURITY IN RESPECT OF THE REMEDIAL WORK BEING CONTESTED AND
THE LOSS OR DAMAGE THAT MAY RESULT FROM THE BORROWERS' FAILURE TO PREVAIL IN
SUCH CONTEST IN SUCH AMOUNT AS MAY BE REASONABLY REQUESTED BY LENDER BUT IN NO
EVENT LESS THAN ONE HUNDRED FIVE PERCENT (105%) OF THE COST OF SUCH REMEDIAL
WORK AS ESTIMATED BY LENDER OR LENDER'S CONSULTANT AND ANY LOSS OR DAMAGE THAT
IS REASONABLY LIKELY TO RESULT FROM THE BORROWERS' FAILURE TO PREVAIL IN SUCH
CONTEST.
(D)
NO BORROWER SHALL INSTALL OR PERMIT TO BE INSTALLED ON ANY PROPERTY
ANY UNDERGROUND STORAGE TANK.
5.8.3
O & M Program.
In the event any environmental report
delivered to Lender in connection with the Loan recommends the development of or
continued compliance with an operation and maintenance program for any Property
(including, without limitation, with respect to the presence of asbestos and/or
lead-based paint) ("O & M Program"), the Borrowers shall develop (or continue to
comply with, as the case may be) such O & M Program and shall, during the term
of the Loan, including any extension or renewal thereof, comply in all material
respects with the terms and conditions of the