|
200102665
<br />reasonably be expected to have a material adverse impact on the Property or the value of the
<br />Property, discovery of any occurrence or condition on the Property or any adjoining real property that
<br />could cause any restrictions on the ownership, occupancy, transferability or use ofthe Property under
<br />Hazardous Materials Law. Borrower shall cooperate with any governmental inquiry, and shall comply
<br />with any governmental or judicial order which arises from any alleged Prohibited Activities or
<br />Conditions; (iii) any Governmental Action; and (iv) any claim made or threatened by any third party
<br />against Borrower, Lender, or the Property relating to loss or injury resulting from any Hazardous
<br />Materials. Any such notice by Borrower shall not relieve Borrower of, or result in a waiver of any
<br />obligation of Borrower under this paragraph 6. Borrower shall cooperate with any governmental
<br />inquiry, and shall comply with any governmental or judicial order which arises from any alleged
<br />Prohibited Activities or Conditions.
<br />Borrower shall pay promptly, within 30 days of demand, the reasonable costs of any
<br />environmental audits, studies or investigations (including but not limited to advice of legal counsel)
<br />and the removal of any Hazardous Materials from the Property reasonably required by Lender as a
<br />condition of its consent to any sale or transfer under paragraph 19 of this Instrument of all or any part
<br />of the Property or any transfer occurring upon a foreclosure or a deed in lieu of foreclosure or any
<br />interest therein, or required by Lender following a reasonable determination by Lender that there may
<br />be Prohibited Activities or Conditions on or under the Property. Borrower authorizes Lender and its
<br />employees, agents and contractors to enter onto the Property for the purpose of conducting such
<br />environmental audits, studies and investigations. Any such costs and expenses incurred by Lender
<br />(including but not limited to fees and expenses of attorneys and consultants, whether incurred in
<br />connection with any judicial or administrative process or otherwise) which Borrower fails to pay
<br />promptly shall become immediately due and payable and shall become additional indebtedness secured
<br />by this Instrument pursuant to paragraph 8 of this Instrument.
<br />Borrower shall hold harmless, defend and indemnify Lender and its officers, directors,
<br />trustees, employees, and agents from and against all proceedings (including but not limited to
<br />Government Actions), claims, damages, penalties, costs and expenses (including without limitation
<br />fees and expenses of attorneys and expert witnesses, investigatory fees, and cleanup and remediation
<br />expenses, whether or not incurred within the context of the judicial process), arising directly or
<br />indirectly from (i) any breach of any representation, warranty, or obligation of Borrower contained
<br />in this paragraph 6 or (ii) the presence or alleged presence of Hazardous Materials on or under the
<br />Property. Except as set forth in paragraph 27(c) of this Instrument, Lender agrees that the liability
<br />created under this paragraph shall be limited to the assets of Borrower and Lender shall not seek to
<br />recover any deficiency from any natural persons who are partners, members or shareholders of
<br />Borrower.
<br />The term "Hazardous Materials," for purposes of this paragraph 6, includes petroleum and
<br />petroleum products, flammable explosives, radioactive materials (excluding radioactive materials in
<br />smoke detectors), polychlorinated biphenyls, lead, asbestos in any form that is or could become
<br />friable, hazardous waste, toxic or hazardous substances or other related materials whether in the form
<br />of a chemical, element, compound, solution, mixture or otherwise including, but not limited to, those
<br />materials defined as "hazardous substances," "extremely hazardous substances," "hazardous
<br />chemicals," "hazardous materials," "toxic substances," "solid waste," "toxic chemicals," "air
<br />pollutants," "toxic pollutants," "hazardous wastes," "extremely hazardous waste," or "restricted
<br />1048094.1 7
<br />
|