SHALL (OR SHALL
CAUSE OWNER TO) (I) UNDERTAKE AN INVESTIGATION TO IDENTIFY THE SOURCE(S) OF SUCH
MOLD OR FUNGUS AND SHALL DEVELOP AND IMPLEMENT AN APPROPRIATE REMEDIATION PLAN
TO ELIMINATE THE PRESENCE OF ANY TOXIC MOLD, (II) PERFORM OR CAUSE TO BE
PERFORMED ALL ACTS REASONABLY NECESSARY FOR THE REMEDIATION OF ANY TOXIC MOLD
(INCLUDING TAKING ANY ACTION NECESSARY TO CLEAN AND DISINFECT ANY PORTIONS OF
THE PROPERTY AFFECTED BY TOXIC MOLD, INCLUDING PROVIDING ANY NECESSARY MOISTURE
CONTROL SYSTEMS AT THE PROPERTY), AND (III) PROVIDE EVIDENCE REASONABLY
SATISFACTORY TO LENDER OF THE FOREGOING.
BORROWER SHALL PERMIT (AND SHALL CAUSE
OWNER TO PERMIT) 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 (OR SHALL CAUSE OWNER TO
PAY) ALL REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS INCURRED BY LENDER IN
CONNECTION THEREWITH.
(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 (OR SHALL CAUSE
OWNER TO) 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 (OR OWNER) FAILS TO
PROVIDE ANY SUCH INSPECTION OR AUDIT WITHIN 30 DAYS AFTER SUCH REQUEST, LENDER
MAY ORDER SAME, AND BORROWER HEREBY GRANTS (AND SHALL CAUSE OWNER TO GRANT) 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
38
HAZARDOUS SUBSTANCE, WHETHER SUCH HAZARDOUS SUBSTANCE EXISTED PRIOR TO THE
OWNERSHIP OF THE PROPERTY BY OWNER, OR PRESENTLY EXISTS OR IS REASONABLY
SUSPECTED OF EXISTING, BORROWER SHALL CAUSE (OR SHALL CAUSE OWNER TO 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 (OR
SHALL CAUSE OWNER TO) 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.