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200505595
<br />provisions of this paragraph, and Grantor shall cooperate in all reasonable ways with Beneficiary
<br />in connection with any such audit. If such audit discloses that a material violation of an
<br />Environmental Requirement exists, Grantor shall pay all costs and expenses incurred in
<br />connection with such audit, otherwise, the costs and expenses of such audit shall,
<br />notwithstanding anything to the contrary set forth in this paragraph, be paid by Beneficiary. If
<br />this Deed of Trust is foreclosed, or if the Trust Property is sold pursuant to the provisions of this
<br />Deed of Trust, or if Grantor tenders a deed or assignment in lieu of foreclosure or sale, Grantor
<br />shall deliver the Trust Property to the purchaser at foreclosure or sale or to Beneficiary, its
<br />nominee, or wholly owned subsidiary, as the case may be, in a condition that complies in all
<br />respects with all Environmental Requirements. Grantor will defend, indemnify, and hold
<br />harmless Beneficiary, its employees, agents, officers, and directors, from and against any and all
<br />claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or
<br />expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or
<br />otherwise (including, without limitation, counsel and consultant fees and expenses, investigation
<br />and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any
<br />way related to, (i) any breach by Grantor of any of the provisions of this paragraph, (ii) the
<br />presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any
<br />Hazardous Material which is at, in, on, under, about, from or affecting the Trust Property as a
<br />result of action or inaction of Grantor, including, without limitation, any damage or injury
<br />resulting from any such Hazardous Material to or affecting the Trust Property or the soil, water,
<br />air, vegetation, buildings, personal property, persons or animals located on the Trust Property or
<br />on any other property or otherwise, (iii) any personal injury (including wrongful death) or
<br />property damage (real or personal) arising out of or related to any such Hazardous Material as a
<br />result of action or inaction of Grantor, (iv) any lawsuit brought or threatened, settlement reached,
<br />or order or directive of or by any Governmental Authority relating to such Hazardous Material as
<br />a result of action or inaction of Grantor, or (v) any violation by Grantor of any Environmental
<br />Requirement. The aforesaid indemnification shall, notwithstanding any exculpatory or other
<br />provision of any nature whatsoever to the contrary set forth in the Note, the Other Notes, if any,
<br />this Deed of Trust or any other document or instrument now or hereafter executed and delivered
<br />in connection with the loan evidenced by the Note, or the Other Notes, if any, and secured by
<br />this Deed of Trust, constitute the personal recourse undertakings, obligations and liabilities of
<br />Grantor. The aforesaid indemnification shall not be applicable to any claim, demand, penalty,
<br />cause of action, fine, liability, settlement, damage, cost or other expense of any type whatsoever
<br />(i) occasioned, arising and caused solely and directly as the result of the gross negligence or
<br />willful misconduct of Beneficiary, its nominee or wholly owned subsidiary or their respective
<br />employees or agents and irrespective of whether occurring prior or subsequent to the date upon
<br />which Beneficiary, its nominee or wholly owned subsidiary acquires possession of the Trust
<br />Property by foreclosure of this Deed of Trust, a sale of the Trust Property pursuant to the
<br />provisions of this Deed of Trust, acceptance of a deed or assignment in lieu of foreclosure or sale
<br />or otherwise, or (ii) occasioned, arising and caused solely and directly as the result of any act of
<br />any person or party (other than an act of Grantor, its employees or agents or persons or parties
<br />under the control of Grantor, or an act of Beneficiary, its nominee or wholly owned subsidiary or
<br />their respective employees or agents which does not constitute negligence or willful misconduct,
<br />or an act of any Governmental Authority, including, without limitation, any change in any
<br />Environmental Requirement) and occurring subsequent to the earlier to occur of (x) the date of
<br />CLT 837349v1
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