Common use of Hazardous Waste and Other Substances Clause in Contracts

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of Mortgagor’s knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environment, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagor; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws

Hazardous Waste and Other Substances. (a) Mortgagor Trustor hereby represents and warrants to Mortgagee Beneficiary that, as of the date hereof, and except as otherwise provided may be expressly set forth in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxthe environmental reports delivered to Beneficiary in connection with the making of the Loan: (i) to the best of Mortgagor’s Trustor's knowledge, information and belief, none of Mortgagor Trustor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed could reasonably be expected to be subject or give rise to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environmentenvironment (collectively, "Environmental Laws"), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C.ss.9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C.ss.6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C.ss.1251 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C.ss.7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 U.S.C.ss.11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 U.S.C.ss.1531 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C.ss.2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 U.S.C.ss.651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 U.S.C.ss.1801 et seq.), including any and regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagortime; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances substances, radon gas or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, "Hazardous Substances") are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Trustor or any Tenant in the ordinary course of their respective businesses and material compliance with all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws; (iii) the Mortgaged Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (iv) there is no pending, nor, to Trustor's knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Trustor or the Mortgaged Property; there are no and, to Trustor's knowledge, have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property; (v) Trustor has received no notice of, and to Trustor's knowledge, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Mortgaged Property, nor does Trustor know of any basis for such an investigation, action, proceeding or claim; (vi) Trustor has received no notice of and, to the best of Trustor's knowledge and belief, there has been no claim by any party that any use, operation or condition of the Mortgaged Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Trustor know of any basis for such an investigation, action, proceeding or claim; and (vii) to Trustor's knowledge, radon is not present at the Mortgaged Property in excess or in violation of any applicable thresholds or standards or in amounts that require under applicable law disclosure to any tenant or occupant of or invitee to the Mortgaged Property or to any governmental agency or the general public. (b) Trustor has not received nor to the best of Trustor's knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws; and (c) Neither the Mortgaged Property, nor to Trustor's knowledge, any property to which Trustor has, in connection with the maintenance or operation of the Mortgaged Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances is listed or, to the best of Trustor's knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up. (d) Trustor shall comply in all material respects with all applicable Environmental Laws. Trustor shall keep or cause the Mortgaged Property to be kept free from Hazardous Substances (except those substances used by Trustor or any Tenant in the ordinary course of their respective businesses and except in material compliance with all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws) and in compliance with all Environmental Laws, Trustor shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants in quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws. Without limiting the generality of the foregoing, during the term of this Deed of Trust, Trustor shall not install in the Improvements or permit to be installed in the Improvements any asbestos or asbestos-containing materials. (e) Trustor shall promptly notify Beneficiary if Trustor shall become aware of (i) the actual or potential existence of any Hazardous Substances on the Mortgaged Property other than those occurring in the ordinary course of Trustor's business and which do not violate, or would not otherwise reasonably be expected to give rise to liability under Environmental Laws, (ii) any violation of, or other occurrence that could reasonably be expected to give rise to liability under, any Environmental Laws, (iii) any lien, action or notice affecting the Mortgaged Property or Trustor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws, (iv) the institution of any investigation, inquiry or proceeding concerning Trustor or the Mortgaged Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Deed of Trust incorrect in any material respect if made at the time of such discovery. Immediately upon receipt of same, Trustor shall deliver to Beneficiary copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Mortgaged Property or to Trustor. Trustor shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of Environmental Laws or any condition that could give rise to liability under Environmental Laws. Without limiting the foregoing, Trustor shall, promptly and regardless of the source of the contamination or threat to the environment or human health, at its own expense, take all actions as shall be required, for the clean-up of any and all portions of the Mortgaged Property or other affected property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws and shall further pay or cause to be paid, at no expense to Beneficiary, all clean-up, administrative and enforcement costs required to be paid to applicable governmental agencies which may be asserted against the Mortgaged Property; provided, however, that in the event that Trustor contests such expenses and the contest thereof results in an extension of the period for the payment of such expenses (and does not in any way adversely affect Trustor, Beneficiary, the Mortgaged Property or Beneficiary's security interest in the Mortgaged Property), then Trustor may delay payment of such expenses until the end of any such extended period. In the event Trustor fails to do so: (a) Beneficiary may, but shall not be obligated to, cause the Mortgaged Property or other affected property to be freed from any Hazardous Substances or otherwise brought into conformance with Environmental Laws and any and all costs and expenses incurred by Beneficiary in connection therewith, together with interest thereon at the Default Interest Rate from the date incurred by Beneficiary until actually paid by Trustor, shall be immediately paid by Trustor on demand and shall be secured by this Deed of Trust and by all of the other Loan Documents securing all or any part of the Debt and (b) Trustor hereby grants to Beneficiary and its agents and employees access to the Mortgaged Property and a license to remove any items deemed by Beneficiary to be Hazardous Substances and to do all things Beneficiary shall deem necessary to bring the Mortgaged Property into conformance with Environmental Laws. (f) Trustor covenants and agrees, at Trustor's sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Beneficiary), and hold Beneficiary harmless from and against any and all liens, damages (including without limitation, punitive or exemplary damages), losses, liabilities (including, without limitation, strict liability), obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys', consultants' and experts' fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding (collectively, "Costs")) which may at any time be imposed upon, incurred by or asserted or awarded against Beneficiary or the Mortgaged Property, and arising directly or indirectly from or out of: (i) any violation or alleged violation of, or liability or alleged liability under, any Environmental Law; (ii) the presence, release or threat of release of or exposure to any Hazardous Substances or radon on, in, under or affecting all or any portion of the Mortgaged Property or any surrounding areas, regardless of whether or not caused by or within the control of Trustor; (iii) any transport, treatment, recycling, storage, disposal or arrangement therefor of Hazardous Substances whether on the Mortgaged Property, originating from the Mortgaged Property, or otherwise associated with Trustor or any operations conducted on the Mortgaged Property at any time; (iv) the failure by Trustor to comply fully with the terms and conditions of this Section 1.31; (v) the breach of any representation or warranty contained in this Section 1.31; (vi) the enforcement of this Section 1.31, including, without limitation, the cost of assessment, investigation, containment, removal and/or remediation of any and all Hazardous Substances from all or any portion of the Mortgaged Property or any surrounding areas, the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Mortgaged Property or any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with Environmental Laws in connection with all or any portion of the Mortgaged Property or any surrounding areas. The indemnity set forth in this Section 1.31 shall also include any diminution in the value of the security afforded by the Mortgaged Property or any future reduction in the sales price of the Mortgaged Property by reason of any matter set forth in this Section 1.31. The foregoing indemnity shall specifically not include any such Costs relating to Hazardous Substances which are initially placed on, in or under the Mortgaged Property after foreclosure or other taking of title to the Mortgaged Property by Beneficiary or its successors or assigns. Beneficiary's rights under this Section shall survive payment in full of the Debt and shall be in addition to all other rights of Beneficiary under this Deed of Trust, the Note and the other Loan Documents. (g) Upon Beneficiary's request, at any time after the occurrence of an Event of Default or at such other time as Beneficiary has reasonable grounds to believe that Hazardous Substances are or have been released, stored or disposed of on the Mortgaged Property, or on property contiguous with the Mortgaged Property, or that the Mortgaged Property may be in violation of the Environmental Laws, Trustor shall perform or cause to be performed, at Trustor's sole cost and expense and in scope, form and substance satisfactory to Beneficiary, an inspection or audit of the Mortgaged Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Beneficiary indicating the presence or absence of Hazardous Substances on the Mortgaged Property, the compliance or non-compliance status of the Mortgaged Property and the operations conducted thereon with applicable Environmental Laws, or an inspection or audit of the Mortgaged Property prepared by an engineering or consulting firm approved by Beneficiary indicating the presence or absence of friable asbestos or substances containing asbestos or lead or substances containing lead or lead based paint ("Lead Based Paint") on the Mortgaged Property. If Trustor fails to provide reports of such inspection or audit within forty-five (45) days after such request, Beneficiary may order the same, and Trustor hereby grants to Beneficiary and its employees and agents access to the Mortgaged Property and an irrevocable license to undertake such inspection or audit. The cost of such inspection or audit, together with interest thereon at the Default Interest Rate from the date incurred by Beneficiary until actually paid by Trustor, shall be immediately paid by Trustor on demand and shall be secured by this Deed of Trust and by all of the other Loan Documents securing all or any part of the Debt. (h) Reference is made to that certain Environmental Indemnity Agreement of even date herewith by and among Trustor, Innkeepers USA Trust and Beneficiary (the "Environmental Indemnity Agreement"). The provisions of this Deed of Trust and the Environmental Indemnity Agreement shall be read together to maximize the coverage with respect to the subject matter thereof.

Hazardous Waste and Other Substances. (a) Mortgagor Except as otherwise may be disclosed in those certain Phase I Environmental Site Assessments of the Property, dated March 16, 2007 and prepared by LandAmerica Assessment Corporation (collectively, the “Phase I”), Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of MortgagorBorrower’s knowledge, information and belief, none of Mortgagor Borrower nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.S.C. §0000 et seqxx xeq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.S.C. §0000 et seqxx xeq.), the Federal Water Pollution Control Act (33 X.X.X. U.S.C. §0000 et seqxx xeq.), the Clean Air Act (42 X.X.X. U.S.C. §0000 et seqxx xeq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. U.S.C. §0000 et seqxx xeq.), the Toxic Substances Control Act (15 X.X.X. U.S.C. §0000 et seqxx xeq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any the Georgia Hazardous Waste Management Act, as amended, O.C.G.A. § 12-8-60 et seq., the Georgia Oil or Hazardous Materials Spills or Releases Act, as amended, O.C.G.A. § 12-14-1 et seq., the Georgia Comprehensive Solid Waste Management Act, as amended, O.C.G.A. § 12-8-20 et seq., the Georgia Asbestos Safety Act, as amended, O.C.G.A. § 12-12-1 et seq., the Georgia Underground Storage Tank Act, as amended, O.C.G.A. § 12-13-1 et seq., regulations promulgated pursuant to said laws, all as amended from time to time (collectively, “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of MortgagorBorrower; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), ) polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Borrower or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such Hazardous Substances could not reasonably be expected to give rise to liability under Environmental Laws; (iii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require disclosure under applicable law to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public; (iv) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Borrower’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Borrower or the Property; (vi) there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (vii) Borrower has received no notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim; and (viii) Borrower has received no notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim. For the purposes hereof, “Toxic Mold” shall mean any mold or fungus at the Property which is of a type (i) that might pose a significant risk to human health or the environment or (ii) that would negatively impact the value of the Property.

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, hereof except as otherwise provided disclosed in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxany environmental site assessment report or tenant estoppel certificate delivered to Mortgagee prior to the date hereof: (i) to the best of Mortgagor’s 's knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environmentenvironment (collectively, "Environment Laws"), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. Section 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C. Section 1251 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C. Section 7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §Section 11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 U.S.C. Section 1531 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §Section 651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §Section 1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagor; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances substances, radon gas or raw materials which include hazardous constituents) or any other substances or materials materials, which are included under or regulated by Environmental Laws (collectively, "Hazardous Substances") are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws; (iii) the Mortgaged Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (iv) there is no pending, nor, to Mortgagor's knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Mortgagor or the Mortgaged Property; there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property; (v) Mortgagor has received no notice of, and to the best of Mortgagor's knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to the Mortgaged Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; and (vi) radon is not present at the Mortgaged Property in excess or in violation of Environmental Laws that require disclosure to any tenant or occupant of or invitee to the Mortgaged Property or to any governmental agency or the general public. (b) Except as disclosed in any environmental site assessment report or tenant estoppel certificate delivered to Mortgagee prior to the date hereof, Mortgagor has not received nor to the best of Mortgagor's knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws; and (c) Except as disclosed in any environmental site assessment report or tenant estoppel certificate delivered to Mortgagee prior to the date hereof, to the best of Mortgagor's knowledge, information and belief, neither the Mortgaged Property, nor any property to which Mortgagor has, in connection with the maintenance or operation of the Mortgaged Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances is listed or, to the best of Mortgagor's knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up. (d) Mortgagor shall comply with all applicable Environmental Laws. Mortgagor shall keep or cause the Mortgaged Property to be kept free from Hazardous Substances (except those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and except in compliance with all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws) and in compliance with all Environmental Laws, Mortgagor shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants in quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws. Without limiting the generality of the foregoing, during the term of this Mortgage, Mortgagor shall not install in the Improvements or permit to be installed in the Improvements any asbestos or asbestos-containing asbestos. (e) Mortgagor shall promptly notify Mortgagee if Mortgagor shall become aware of (i) the actual or potential existence of any Hazardous Substances on the Mortgaged Property other than those occurring in the ordinary course of Mortgagor's business and which do not violate, or would not otherwise give rise to liability under Environmental Laws, (ii) any direct or indirect violation of any Environmental Laws, (iii) any lien, action or notice affecting the Mortgaged Property or Mortgagor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws, (iv) the institution of any investigation, inquiry or proceeding concerning Mortgagor or the Mortgaged Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Mortgage incorrect in any respect if made at the time of such discovery. Immediately upon receipt of same, Mortgagor, shall deliver to Mortgagee copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Mortgaged Property or to Mortgagor. Mortgagor shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of Environmental Laws or any condition that could give rise liability under Environmental Laws. Without limiting the foregoing, Mortgagor shall, promptly and regardless of the source of the contamination or threat to the environment or human health, at its own expense, take all actions as shall be necessary or prudent, to bring any and all portions of the Mortgaged Property into compliance with Environmental Laws or other affected property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws (and in all events in a manner reasonably satisfactory to Mortgagee) and shall further pay or cause to be paid, at no expense to Mortgagee, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Mortgaged Property. In the event Mortgagor fails to do so, Mortgagee may, but shall not be obligated to, cause the Mortgaged Property or other affected property to be brought into conformance with Environmental Laws and any and all costs and expenses incurred by Mortgagee in connection therewith, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. Mortgagor hereby grants to Mortgagee and its agents and employees, subject to the rights of any Tenants, access to the Mortgaged Property and a license to remove any items deemed by Mortgagee to be in violation of Environmental Laws and to do all things Mortgagee shall deem necessary in its reasonable discretion to bring the Mortgaged Property into conformance with Environmental Laws. (f) Mortgagor covenants and agrees, at Mortgagor's sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts reasonably acceptable to Mortgagee), and hold Mortgagee harmless from and against any and all liens, damages (including without limitation, punitive or exemplary damages), losses, liabilities (including, without limitation, strict liability), obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys', consultants' and experts' fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee or the Mortgaged Property, and arising directly or indirectly from or out of: (i) any violation or alleged violation of, or liability or alleged liability under, any Environmental Law; (ii) the presence, release or threat of release of or exposure to any Hazardous Substances or radon on, in, under or affecting all or any portion of the Mortgaged Property or any surrounding areas, regardless of whether or not caused by or within the control of Mortgagor; (iii) any transport, treatment, recycling, storage, disposal or arrangement therefor of Hazardous Substances whether on the Mortgaged Property, originating from the Mortgaged Property, or otherwise associated with Mortgagor or any operations conducted on the Mortgaged Property at any time; (iv) the failure by Mortgagor to comply fully with the terms and conditions of this Section 1.31; (v) the breach of any representation or warranty contained in this Section 1.31; (vi) the enforcement of this Section 1.31, including, without limitation, the cost of assessment, investigation, containment, removal and/or remediation of any and all Hazardous Substances from all or any portion of the Mortgaged Property or any surrounding areas, the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Mortgaged Property or any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with Environmental Laws in connection with all or any portion of the Mortgaged Property or any surrounding areas. The indemnity set forth in this Section 1.31 shall also include any diminution in the value of the security afforded by the Mortgaged Property or any future reduction in the sales price of the Mortgaged Property by reason of any matter set forth in this Section 1.31. The foregoing indemnity shall specifically not include any such costs relating to Hazardous Substances which are initially placed on, in or under the Mortgaged Property after foreclosure or other taking of title to the Mortgaged Property by Mortgagee or its Agents, employees, contractors, successor or assigns. Mortgagee's rights under this Section shall survive payment in full of the Debt and shall be in addition to all other rights of Mortgagee under this Mortgage, the Note and the other Loan Documents. (g) Upon Mortgagee's request, at any time after the occurrence of an Event of Default or at such other time as Mortgagee has reasonable grounds to believe that Hazardous Substances are or have been released, stored or disposed of on the Mortgaged Property in violation of Environmental Laws, or on property contiguous with the Mortgaged Property, or that the Mortgaged Property may be in violation of the Environmental Laws, Mortgagor shall perform or cause to be performed, at Mortgagor's sole cost and expense and in scope, form and substance reasonably satisfactory to Mortgagee, an inspection or audit of the Mortgaged Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Mortgagee indicating the presence or absence of Hazardous Substances on the Mortgaged Property, the compliance or non-compliance status of the Mortgaged Property and the operations conducted thereon with applicable Environmental Laws, or an inspection or audit of the Mortgaged Property prepared by an engineering or consulting firm reasonably approved by Mortgagee indicating the presence or absence of friable asbestos or substances containing lead based paint ("Lead Based Paint") on the Mortgaged Property. If Mortgagor fails to provide reports of such inspection or audit within forty-five (45) days after such request, Mortgagee may order the same, and Mortgagor hereby grants to Mortgagee and its employees and agents subject to the rights of Tenant's access to the Mortgaged Property an irrevocable license to undertake such inspection or audit. The cost of such inspection or audit, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. (h) Reference is made to that certain Environmental Indemnity Agreement of even date herewith by and among Mortgagor, Glimcher Properties Limited Partnership and Mortgagee (the "Environmental Indemnity Agreement"). The provisions of this Mortgage and the Environmental Indemnity Agreement shall be read together to maximize the coverage with respect to the subject matter thereof, as determined by Mortgagee.

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided disclosed in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxwriting to Lender: (i) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, none possession and, to the extent applicable, occupancy of Mortgagor nor the Mortgaged Property, except as expressly set forth in the environmental reports prepared for Lender in connection with the Loan (collectively, the “Environmental Report”), the Property nor any Tenant at the Premises nor the operations conducted thereon is not in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironmental regulation, natural resources contamination or the environmentclean-up (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.S.C. §0000 9601 et seq. and 40 CFR §302.1 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.S.C. §0000 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. U.S.C. §0000 1251 et seq. and 40 CFR § 116.1 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.)those relating to lead based paint, the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any and the regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagoramended; (ii) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproductsproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws, or any molds, spores or fungus or other harmful microbial matter (collectively, “Hazardous Substances”) are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination) except for those substances used, stored or handled by Borrower or Tenants in the ordinary course of their respective business and in compliance with all Environmental Laws; (iii) to the best of Borrower’s knowledge, after due and diligent inquiry, the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances; (iv) to Borrower’s knowledge, obtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, there are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances on the Property; (v) Borrower has received no written notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Borrower know of any basis for such a claim; and (vi) Borrower has received no written notice of and, to the best of Bxxxxxxx’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Borrower know of any basis for such a claim. (b) Borrower shall keep or cause the Property to be kept free from Hazardous Substances (except those substances disclosed in the Environmental Report and used, stored or handled by Borrower and Tenants in the ordinary course of their respective business and, in each case, in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants (except in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) and, without limiting the generality of the foregoing, during the term of this Deed of Trust, shall not install in the Improvements or permit to be installed in the Improvements asbestos-containing materials (“ACMs”) or any substance containing ACMs. Borrower shall, if required under applicable Environmental Laws, maintain all applicable Material Safety Data Sheets with respect to the Property, and make same available to Lender or Lender’s consultants upon reasonable notice. (c) Borrower shall promptly notify Lender if Borrower shall become aware of the possible existence of any Hazardous Substances on the Property (except as disclosed in the Environmental Report, in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) or if Borrower shall become aware that the Property is or may be in violation of any Environmental Laws. Further, immediately upon receipt of the same, Borrower shall deliver to Lender copies of any and all orders, notices, permits, applications, reports, and other communications, documents and instruments received, communicated to or obtained by Borrower pertaining to the actual, alleged or potential presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property. Borrower shall, promptly and when and as required by Lender, at Borrower’s sole cost and expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property which Lender reasonably determines to be migrating from the Property to such affected property, in accordance with, and to the extent required by, all applicable Environmental Laws, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and to the extent required by all applicable Environmental Laws, and shall further pay or cause to be paid, at no expense to Lender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property; in the event Borrower fails to take such actions, (1) Lender may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) or otherwise brought into compliance with Environmental Laws and any and all costs and expenses incurred by Lender in connection therewith, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower, shall be immediately paid by Bxxxxxxx on demand, and (2) Borrower hereby grants to Lender and its agents and employees access to the Property and a license to remove any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) and to do all things Lender shall deem necessary to bring the Property in conformance with Environmental Laws. Borrower covenants and agrees, at Bxxxxxxx’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Lxxxxx), and hold Lender harmless from and against any and all liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Lender or the Property, and arising directly or indirectly from or out of: (i) the presence, release or threat of release of any Hazardous Substances on, in, under or affecting all or any portion of the Property regardless of whether or not caused by or within the control of Borrower; (ii) the violation of any Environmental Laws relating to or affecting the Property, whether or not caused by or within the control of Borrower; (iii) the failure by Borrower to comply fully with the terms and conditions of this Section 1.25; (iv) the breach of any representation or warranty contained in this Section 1.25; or (v) the enforcement of this Section 1.25, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Substances from all or any portion of the Property the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or (to the extent such Hazardous Substances were released from, or migrated from, the Property) any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any such surrounding areas. The indemnity set forth in this Section 1.25(c) shall also include, when realized, any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.25(c). Lxxxxx’s rights under this Section shall survive payment in full of the Obligations and shall be in addition to all other rights of Lender under this Deed of Trust, the Note and the other Loan Documents. (d) Upon Lxxxxx’s request, at any time after the occurrence of an Event of Default hereunder and in connection with a potential sale of the Property pursuant to Lender’s exercise of its rights and remedies under this Deed of Trust, or at such other time as Lender has reasonable grounds to believe that Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) are or have been released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws (except for items disclosed in the environmental report delivered to Lender in connection herewith), Borrower shall provide, at Borrower’s sole cost and expense, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender to determine the presence or absence of Hazardous Substances on the Property or an inspection or audit of the Improvements prepared by an engineering or consulting firm approved by Lender to determine the presence or absence of friable asbestos or substances containing asbestos on the Property. If Borrower fails to provide such inspection or audit within thirty (30) days after such request, Lender may order the same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit. The cost of such inspection or audit shall be immediately due and payable to Lender by Borrower on demand, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Bxxxxxxx. (e) The obligations of Borrower under this Deed of Trust (including, without limitation, this Section 1.25) with respect to Hazardous Substances shall not in any way limit the obligations of any party under the Hazardous Substances Indemnity.

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided disclosed in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxwriting to Lender: (i) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, none possession and, to the extent applicable, occupancy of Mortgagor nor the Mortgaged Property, except as expressly set forth in the environmental reports prepared for Lender in connection with the Loan (collectively, the “Environmental Report”), the Property nor any Tenant at the Premises nor the operations conducted thereon is not in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironmental regulation, natural resources contamination or the environmentclean-up (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.X.X. §0000 et seq. and 40 CFR §302.1 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. U.X.X. §0000 et seq. and 40 CFR § 116.1 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.)those relating to lead based paint, the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any and the regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagoramended; (ii) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproductsproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws, or any molds, spores or fungus or other harmful microbial matter (collectively, “Hazardous Substances”) are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination) except for those substances used, stored or handled by Borrower or Tenants in the ordinary course of their respective business and in compliance with all Environmental Laws; (iii) to the best of Borrower’s knowledge, after due and diligent inquiry, the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances; (iv) to Borrower’s knowledge, obtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, there are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances on the Property; (v) Borrower has received no written notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Borrower know of any basis for such a claim; and (vi) Borrower has received no written notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Borrower know of any basis for such a claim. (b) Borrower shall keep or cause the Property to be kept free from Hazardous Substances (except those substances disclosed in the Environmental Report and used, stored or handled by Borrower and Tenants in the ordinary course of their respective business and, in each case, in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants (except in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) and, without limiting the generality of the foregoing, during the term of this Deed of Trust, shall not install in the Improvements or permit to be installed in the Improvements asbestos-containing materials (“ACMs”) or any substance containing ACMs. Borrower shall, if required under applicable Environmental Laws, maintain all applicable Material Safety Data Sheets with respect to the Property, and make same available to Lender or Lender’s consultants upon reasonable notice. (c) Borrower shall promptly notify Lender if Borrower shall become aware of the possible existence of any Hazardous Substances on the Property (except as disclosed in the Environmental Report, in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) or if Borrower shall become aware that the Property is or may be in violation of any Environmental Laws. Further, immediately upon receipt of the same, Borrower shall deliver to Lender copies of any and all orders, notices, permits, applications, reports, and other communications, documents and instruments received, communicated to or obtained by Borrower pertaining to the actual, alleged or potential presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property. Borrower shall, promptly and when and as required by Lender, at Borrower’s sole cost and expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property which Lender reasonably determines to be migrating from the Property to such affected property, in accordance with, and to the extent required by, all applicable Environmental Laws, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and to the extent required by all applicable Environmental Laws, and shall further pay or cause to be paid, at no expense to Lender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property; in the event Borrower fails to take such actions, (1) Lender may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) or otherwise brought into compliance with Environmental Laws and any and all costs and expenses incurred by Lender in connection therewith, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand, and (2) Borrower hereby grants to Lender and its agents and employees access to the Property and a license to remove any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) and to do all things Lender shall deem necessary to bring the Property in conformance with Environmental Laws. Borrower covenants and agrees, at Borrower’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Lender), and hold Lender harmless from and against any and all liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Lender or the Property, and arising directly or indirectly from or out of: (i) the presence, release or threat of release of any Hazardous Substances on, in, under or affecting all or any portion of the Property regardless of whether or not caused by or within the control of Borrower; (ii) the violation of any Environmental Laws relating to or affecting the Property, whether or not caused by or within the control of Borrower; (iii) the failure by Borrower to comply fully with the terms and conditions of this Section 1.25; (iv) the breach of any representation or warranty contained in this Section 1.25; or (v) the enforcement of this Section 1.25, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Substances from all or any portion of the Property the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or (to the extent such Hazardous Substances were released from, or migrated from, the Property) any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any such surrounding areas. The indemnity set forth in this Section 1.25(c) shall also include, when realized, any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.25(c). Lender’s rights under this Section shall survive payment in full of the Obligations and shall be in addition to all other rights of Lender under this Deed of Trust, the Note and the other Loan Documents. (d) Upon Lender’s request, at any time after the occurrence of an Event of Default hereunder and in connection with a potential sale of the Property pursuant to Lender’s exercise of its rights and remedies under this Deed of Trust, or at such other time as Lender has reasonable grounds to believe that Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) are or have been released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws (except for items disclosed in the environmental report delivered to Lender in connection herewith), Borrower shall provide, at Borrower’s sole cost and expense, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender to determine the presence or absence of Hazardous Substances on the Property or an inspection or audit of the Improvements prepared by an engineering or consulting firm approved by Lender to determine the presence or absence of friable asbestos or substances containing asbestos on the Property. If Borrower fails to provide such inspection or audit within thirty (30) days after such request, Lender may order the same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit. The cost of such inspection or audit shall be immediately due and payable to Lender by Borrower on demand, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower. (e) The obligations of Borrower under this Deed of Trust (including, without limitation, this Section 1.25) with respect to Hazardous Substances shall not in any way limit the obligations of any party under the Hazardous Substances Indemnity.

Hazardous Waste and Other Substances. (a) Mortgagor Except as otherwise may be disclosed in that certain Phase I Environmental Site Assessment, dated December 12, 2006 and prepared by IVI Due Diligence Services, Inc., Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of MortgagorBorrower’s knowledge, information and belief, none of Mortgagor Borrower nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 et seq.), the Clean Air Act (42 X.X.X. X.X.X §0000 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (collectively, “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of MortgagorBorrower; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), ) polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Borrower or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such Hazardous Substances could not reasonably be expected to give rise to liability under Environmental Laws; (iii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require disclosure under applicable law to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public; (iv) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Borrower’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Borrower or the Property; (vi) there are no and have been no existing or closed underground storage tanks or other underground storage

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) hereof to the best of MortgagorBorrower’s knowledge, information and beliefbelief and other than as set forth in that certain Phase I Environmental Site Assessment dated January 4, 2007 prepared by IVI Due Diligence Services, Inc.: (i) none of Mortgagor Borrower nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 et seqseq .) (“ CERCLA ”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 et seqseq .), the Federal Water Pollution Control Act (33 X.X.X. U.S.C. §0000 1251 et seqseq .), the Clean Air Act (42 X.X.X. §0000 et seqseq .), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seqseq .), the Endangered Species Act (16 X.X.X. §0000 et seqseq .), the Toxic Substances Control Act (15 X.X.X. U.S.C. §0000 2601 et seqseq .), the Occupational Safety and Health Act (29 U.S.C. §651 et seqseq .) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seqseq .), including any regulations promulgated pursuant to said laws, all as amended from time to time (“collectively, “ Environmental LawsLaws ”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of MortgagorBorrower; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), ) polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “ Hazardous Substances ”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Borrower or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such Hazardous Substances could not reasonably be expected to give rise to liability under Environmental Laws; (iii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require disclosure under applicable law to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public; (iv) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Borrower’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Borrower or the Property; (vi) there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (vii) Borrower has received no notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of t he Property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim; and (viii) Borrower has received no notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Borrower know of any basis for such an investigation,

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee thatthat except as may be shown in that certain Phase I Environmental Site Assessment delivered to Mortgagee in connection with making the Loan (the “Environmental Report”), as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of Mortgagor’s knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises Real Estate nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.S.C. §0000 9601 et seq. and 40 CFR §302.1 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.S.C. §0000 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. U.S.C. §0000 1251 et seq. and 40 CFR §116.1 et seq.), the Clean Air Act (42 X.X.X. U.S.C. §0000 7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. U.S.C. §0000 1531 et seq.), the Toxic Substances Control Act (15 X.X.X. U.S.C. §0000 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) ”). those relating to lead based paint, and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any and the regulations promulgated pursuant to said laws, all as amended from time to time (collectively, the “Environmental Law” or “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagor; (ii) to the best of MortgagorXxxxxxxxx’s knowledge, information and beliefbelief after diligent inquiry, no hazardous, toxic or harmful substances, wastes, materials, pollutants pollutants, or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined)materials, polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, paint containing more than 0.5% lead by dry weight (“Lead Based Paint”), infectious substances substances, radon gas or raw materials which include hazardous constituents) or Microbial Matter (hereinafter defined) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such use could not reasonably be expected to give rise to liability under Environmental Laws; (iii) the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances;

Hazardous Waste and Other Substances. (a) Mortgagor Except as may otherwise be disclosed in that certain Phase I Environmental Site Assessment dated February 8, 2007, prepared by IVI Due Diligence Services, Inc., Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of MortgagorBorrower’s knowledge, information and belief, : (i) none of Mortgagor Borrower nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.,) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (collectively, “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of MortgagorBorrower; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), ) polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Borrower or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such Hazardous Substances could not reasonably be expected to give rise to liability under Environmental Laws; (iii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require disclosure under applicable law to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public; (iv) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending nor to Borrower’s knowledge, information and belief, threatened litigation arising under Environmental Laws affecting Borrower or the Property; (vi) there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (vii) Borrower has received no notice of and to Borrower’s knowledge, information and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim; and (viii) Borrower has received no notice of and to Borrower’s knowledge, information and belief, there

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) hereof to the best of MortgagorBorrower’s knowledge, information and beliefbelief and other than as set forth in that certain Phase I Environmental Site Assessment dated January 4, 2007 prepared by IVI Due Diligence Services, Inc.: (i) none of Mortgagor Borrower nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.X.X. §0000 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. U.X.X. §0000 et seq.), the Clean Air Act (42 X.X.X. U.X.X. §0000 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. U.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. U.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (collectively, “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of MortgagorBorrower; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), ) polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Borrower or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such Hazardous Substances could not reasonably be expected to give rise to liability under Environmental Laws; (iii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require disclosure under applicable law to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public; (iv) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Borrower’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Borrower or the Property; (vi) there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (vii) Borrower has received no notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of t he Property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim; and (viii) Borrower has received no notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Borrower know of any basis for such an investigation,

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, : (i) except as otherwise provided expressly set forth in that certain Phase I Environmental Site Assessment dated August 3016, 2004 2002 and prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: National Assessment Corporation (ithe “Environmental Report”) and to the best of Mortgagor’s knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon has at any time been or presently is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environmentenvironment (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. § 9601 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C. § 1251 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C. § 7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §§ 11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 U.S.C. § 1531 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C. § 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.) and or the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), including or any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagortime; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws (“Permitted Materials”); (iii) the Mortgaged Property is not subject to any private or governmental lien arising under Environmental Laws; (iv) there is no pending, nor, to Mortgagor’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Mortgagor or the Mortgaged Property; there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property; (v) Mortgagor has received no notice of, and to the best of Mortgagor’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Mortgaged Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; and (vi) Mortgagor has received no notice of and, to the best of Mortgagor’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Mortgaged Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim. (b) Mortgagor has not received nor, to the best of Mortgagor’s knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws with respect to Mortgagor or the Mortgaged Property. (c) Neither the Mortgaged Property, nor to the best of Mortgagor’s knowledge, information and belief, any property to which Mortgagor has, in connection with the maintenance or operation of the Mortgaged Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances is listed or, to the best of Mortgagor’s knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up. (d) Mortgagor shall comply with all applicable Environmental Laws. Mortgagor shall keep or cause the Mortgaged Property to be kept free from Hazardous Substances (except Permitted Materials). (e) Mortgagor shall promptly notify Mortgagee of (i) the actual or potential existence of any Hazardous Substances on the Mortgaged Property other than Permitted Materials, (ii) any direct or indirect violation relating to the Mortgaged Property of, or other exposure to liability under, any Environmental Laws, (iii) any lien, action or notice affecting the Mortgaged Property or Mortgagor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws arising from any condition or activity on the Mortgaged Property, (iv) the institution of any investigation, inquiry or proceeding concerning Mortgagor or the Mortgaged Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in Section 4.1 of this Mortgage incorrect in any respect if made at the time of such discovery. Immediately upon receipt of same, Mortgagor shall deliver to Mortgagee copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Mortgaged Property or to Mortgagor. Mortgagor shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of Environmental Laws or any condition that could give rise to liability under Environmental Laws. Without limiting the foregoing, Mortgagor shall, promptly and regardless of the source of the contamination or threat to the environment or human health, at its own expense, take all actions as shall be necessary or prudent, for the clean-up of any and all portions of the Mortgaged Property or other affected property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws and shall further pay or cause to be paid, at no expense to Mortgagee, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Mortgaged Property. In the event Mortgagor fails to do so, Mortgagee may, but shall not be obligated to, cause the Mortgaged Property or other affected property to be freed from any Hazardous Substances or otherwise brought into conformance with Environmental Laws. Mortgagor hereby grants to Mortgagee and its agents and employees access to the Mortgaged Property and a license to remove any items deemed by Mortgagee to be Hazardous Substances and to do all things Mortgagee shall deem necessary to bring the Mortgaged Property into conformance with Environmental Laws. (f) Mortgagor covenants and agrees, at Mortgagor’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts reasonably acceptable to Mortgagee), and hold Mortgagee harmless from and against any and all liens, damages (including without limitation, punitive or exemplary damages), losses, liabilities (including, without limitation, strict liability), obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee or the Mortgaged Property, and arising directly or indirectly from or out of: (i) any violation or alleged violation of, or liability or alleged liability under, any Environmental Law; (ii) the presence, release or threat of release of or exposure to any Hazardous Substances on, in, under or affecting all or any portion of the Mortgaged Property or any surrounding areas, regardless of whether or not caused by or within the control of Mortgagor; (iii) any transport, treatment, recycling, storage, disposal or arrangement therefor of Hazardous Substances whether on the Mortgaged Property, originating from the Mortgaged Property, or otherwise associated with Mortgagor or any operations conducted on the Mortgaged Property at any time; (iv) the failure by Mortgagor to comply fully with the terms and conditions of this Section 4.1; (v) the breach of any representation or warranty contained in this Section 4.1; and (vi) the enforcement of this Section 4.1. The indemnity set forth in this Section 4.1 shall also include any diminution in the value of the security afforded by the Mortgaged Property or any future reduction in the sales price of the Mortgaged Property by reason of any matter set forth in this Section 4.1. Mortgagee’s rights under this Section shall survive payment in full of the Debt and shall be in addition to all other rights of Mortgagee under this Mortgage, the Note and the other Loan Documents. (g) Upon Mortgagee’s request, at any time after the occurrence and during the continuance of an Event of Default or at such other time as Mortgagee has reasonable grounds to believe that Hazardous Substances are or have been released, stored or disposed of on the Mortgaged Property, or on property affecting the Mortgaged Property, or that the Mortgaged Property may be in violation of the Environmental Laws, Mortgagor shall perform or cause to be performed, at Mortgagor’s sole cost and expense and in scope, form and substance satisfactory to Mortgagee, an inspection or audit of the Mortgaged Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Mortgagee indicating the presence or absence of Hazardous Substances on the Mortgaged Property, the compliance or non-compliance status of the Mortgaged Property and the operations conducted thereon with applicable Environmental Laws, or an inspection or audit of the Mortgaged Property prepared by an engineering or consulting firm approved by Mortgagee indicating the presence or absence of friable asbestos or substances containing asbestos or lead or substances containing lead or lead based paint (“Lead Based Paint”) on the Mortgaged Property. If Mortgagor fails to provide reports of such inspection or audit within thirty (30) days after such request, Mortgagee may order the same at Mortgagor’s expense, and Mortgagor hereby grants to Mortgagee and its employees and agents access to the Mortgaged Property and an irrevocable license to undertake such inspection or audit. (h) Reference is made to that certain Environmental Indemnity Agreement of even date herewith from Mortgagor, Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx for the benefit of Mortgagee (the “Environmental Indemnity Agreement”). The provisions of this Mortgage and the Environmental Indemnity Agreement shall be read together to maximize the coverage with respect to the subject matter thereof, as determined by Mortgagee. (i) If the Environmental Report disclosed asbestos containing materials (“ACM’s”) at the Mortgaged Property or if at any time hereafter ACM’s are detected at the Mortgaged Property, Mortgagor covenants and agrees to institute, within thirty (30) days after the date hereof, an operations and maintenance program (the “Maintenance Program”) designed by an environmental consultant, satisfactory to Mortgagee, with respect to asbestos containing materials (“ACM’s”), consistent with “Guidelines for Controlling Asbestos-Containing Materials in Buildings” (USEPA, 1985) and other relevant guidelines, and such Maintenance Program will hereafter continuously remain in effect until the Debt secured hereby is repaid in full. In furtherance of the foregoing, Mortgagor shall inspect and maintain all ACM’s on a regular basis and ensure that all ACM’s shall be maintained in a condition that prevents exposure of occupants to ACM’s at all times. Without limiting the generality of the preceding sentence, Mortgagee may require (i) periodic notices or reports to Mortgagee in form, substance and at such intervals as Mortgagee may specify, (ii) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (iii) at Mortgagor’s sole expense, supplemental examination of the Mortgaged Property by consultants specified by Mortgagee, and (iv) variation of the operations and maintenance program in response to the reports provided by any such consultants. (j) If, prior to the date hereof, it was determined that the Mortgaged Property contains Lead Based Paint, Mortgagor had prepared an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”). If, at any time hereafter, Lead Based Paint is suspected of being present on the Mortgaged Property, Mortgagor agrees, at its sole cost and expense and within twenty (20) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Mortgagee. (k) Mortgagor agrees that if it has been, or if at any time hereafter it is, determined that the Mortgaged Property contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to the date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Mortgagor shall, at its sole cost and expenses, develop and implement, and thereafter diligently and continuously carry out (or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the Lead Based Paint on the Mortgaged Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Mortgagee (together with any Lead Based Paint Report, the “O&M Plan”). If an O&M Plan has been prepared prior to the date hereof, Mortgagor agrees to diligently and continually carry out (or cause to be carried out) the provisions thereof. Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of all records, papers and forms required under the Environmental Laws.

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, : (i) except as otherwise provided expressly set forth in that certain Phase I Environmental Site Assessment dated August 3016, 2004 2002 and prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: National Assessment Corporation (ithe “Environmental Report”) and to the best of Mortgagor’s knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon has at any time been or presently is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environmentenvironment (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. § 9601 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C. § 1251 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C. § 7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §§ 11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 U.S.C. § 1531 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C. § 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.) and or the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), including or any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagortime; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws (“Permitted Materials”); (iii) the Mortgaged Property is not subject to any private or governmental lien arising under Environmental Laws; (iv) there is no pending, nor, to Mortgagor’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Mortgagor or the Mortgaged Property; there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property; (v) Mortgagor has received no notice of, and to the best of Mortgagor’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Mortgaged Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; and (vi) Mortgagor has received no notice of and, to the best of Mortgagor’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Mortgaged Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim. (b) Mortgagor has not received nor, to the best of Mortgagor’s knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws with respect to Mortgagor or the Mortgaged Property.

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided disclosed in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxwriting to Lender: (i) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, none possession and, to the extent applicable, occupancy of Mortgagor nor the Mortgaged Property, except as expressly set forth in the environmental reports prepared for Lender in connection with the Loan (collectively, the “Environmental Report”), the Property nor any Tenant at the Premises nor the operations conducted thereon is not in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironmental regulation, natural resources contamination or the environmentclean-up (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.S.X. §0000 xx seq. and 40 CFR §302.1 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.S.X. §0000 et xx seq.), the Federal Water Pollution Control Act (33 X.X.X. U.S.X. §0000 xx seq. and 40 CFR § 116.1 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.)those relating to lead based paint, the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any and the regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagoramended; (ii) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproductsproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws, or any molds, spores or fungus or other harmful microbial matter (collectively, “Hazardous Substances”) are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination) except for those substances used, stored or handled by Borrower or Tenants in the ordinary course of their respective business and in compliance with all Environmental Laws; (iii) to the best of Borrower’s knowledge, after due and diligent inquiry, the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances; (iv) to Borrower’s knowledge, obtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, there are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances on the Property; (v) Borrower has received no written notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Borrower know of any basis for such a claim; and (vi) Borrower has received no written notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Borrower know of any basis for such a claim. (b) Borrower shall keep or cause the Property to be kept free from Hazardous Substances (except those substances disclosed in the Environmental Report and used, stored or handled by Borrower and Tenants in the ordinary course of their respective business and, in each case, in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants (except in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) and, without limiting the generality of the foregoing, during the term of this Mortgage, shall not install in the Improvements or permit to be installed in the Improvements asbestos-containing materials (“ACMs”) or any substance containing ACMs. Borrower shall, if required under applicable Environmental Laws, maintain all applicable Material Safety Data Sheets with respect to the Property, and make same available to Lender or Lender’s consultants upon reasonable notice. (c) Borrower shall promptly notify Lender if Borrower shall become aware of the possible existence of any Hazardous Substances on the Property (except as disclosed in the Environmental Report, in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) or if Borrower shall become aware that the Property is or may be in violation of any Environmental Laws. Further, immediately upon receipt of the same, Borrower shall deliver to Lender copies of any and all orders, notices, permits, applications, reports, and other communications, documents and instruments received, communicated to or obtained by Borrower pertaining to the actual, alleged or potential presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property. Borrower shall, promptly and when and as required by Lender, at Borrower’s sole cost and expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property which Lender reasonably determines to be migrating from the Property to such affected property, in accordance with, and to the extent required by, all applicable Environmental Laws, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and to the extent required by all applicable Environmental Laws, and shall further pay or cause to be paid, at no expense to Lender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property; in the event Borrower fails to take such actions, (1) Lender may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) or otherwise brought into compliance with Environmental Laws and any and all costs and expenses incurred by Lender in connection therewith, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand, and (2) Borrower hereby grants to Lender and its agents and employees access to the Property and a license to remove any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) and to do all things Lender shall deem necessary to bring the Property in conformance with Environmental Laws. Borrower covenants and agrees, at Borrower’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Lender), and hold Lender harmless from and against any and all liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Lender or the Property, and arising directly or indirectly from or out of: (i) the presence, release or threat of release of any Hazardous Substances on, in, under or affecting all or any portion of the Property regardless of whether or not caused by or within the control of Borrower; (ii) the violation of any Environmental Laws relating to or affecting the Property, whether or not caused by or within the control of Borrower; (iii) the failure by Borrower to comply fully with the terms and conditions of this Section 1.25; (iv) the breach of any representation or warranty contained in this Section 1.25; or (v) the enforcement of this Section 1.25, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Substances from all or any portion of the Property the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or (to the extent such Hazardous Substances were released from, or migrated from, the Property) any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any such surrounding areas. The indemnity set forth in this Section 1.25(c) shall also include, when realized, any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.25(c). Lender’s rights under this Section shall survive payment in full of the Obligations and shall be in addition to all other rights of Lender under this Mortgage, the Note and the other Loan Documents. (d) Upon Lender’s request, at any time after the occurrence of an Event of Default hereunder and in connection with a potential sale of the Property pursuant to Lender’s exercise of its rights and remedies under this Mortgage, or at such other time as Lender has reasonable grounds to believe that Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) are or have been released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws (except for items disclosed in the environmental report delivered to Lender in connection herewith), Borrower shall provide, at Borrower’s sole cost and expense, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender to determine the presence or absence of Hazardous Substances on the Property or an inspection or audit of the Improvements prepared by an engineering or consulting firm approved by Lender to determine the presence or absence of friable asbestos or substances containing asbestos on the Property. If Borrower fails to provide such inspection or audit within thirty (30) days after such request, Lender may order the same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit. The cost of such inspection or audit shall be immediately due and payable to Lender by Borrower on demand, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower. (e) The obligations of Borrower under this Mortgage (including, without limitation, this Section 1.25) with respect to Hazardous Substances shall not in any way limit the obligations of any party under the Hazardous Substances Indemnity. (f) Borrower covenants and agrees to institute, within thirty (30) days after the date hereof, an operations and maintenance program (the “ACM O&M Plan”) designed by an environmental consultant, satisfactory to the Lender, with respect to “ACM’s”, consistent with “Guidelines for Controlling Asbestos-Containing Materials in Buildings” (USEPA, 1985) and other relevant guidelines, and such ACM O&M Plan will hereafter continuously remain in effect until the Obligations is repaid in

Hazardous Waste and Other Substances. (a) Mortgagor Except as otherwise may be disclosed in that certain Phase I Environmental Site Assessment of the Property, dated March 28, 2007 and prepared by LandAmerica Assessment Corporation (the “Phase I”), Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of MortgagorBorrower’s knowledge, information and belief, none of Mortgagor Borrower nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.S.C. §0000 et seqxx xeq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.S.C. §0000 et seqxx xeq.), the Federal Water Pollution Control Act (33 X.X.X. U.S.C. §0000 et seqxx xeq.), the Clean Air Act (42 X.X.X. U.S.C. §0000 et seqxx xeq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. U.S.C. §0000 et seqxx xeq.), the Toxic Substances Control Act (15 X.X.X. U.S.C. §0000 et seqxx xeq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (collectively, “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of MortgagorBorrower; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), ) polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Borrower or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such Hazardous Substances could not reasonably be expected to give rise to liability under Environmental Laws; (iii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require disclosure under applicable law to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public; (iv) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Borrower’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Borrower or the Property; (vi) there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (vii) Borrower has received no notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim; and (viii) Borrower has received no notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim. For the purposes hereof, “Toxic Mold” shall mean any mold or fungus at the Property which is of a type (i) that might pose a significant risk to human health or the environment or (ii) that would negatively impact the value of the Property.

Hazardous Waste and Other Substances. (a) Mortgagor Grantor hereby represents and warrants to Mortgagee Beneficiary that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of Mortgagor’s Grantor's knowledge, information and belief, none of Mortgagor Grantor nor the Mortgaged Trust Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environment, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. Section 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C. Section 1251 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C. Section 7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §Section 11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 U.S.C. Section 1531 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §Section 651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §Section 1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (“"Environmental Laws”") or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Trust Property, whether or not used by or within the control of MortgagorGrantor; (ii) to the best of Mortgagor’s Grantor's knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, "Hazardous Substances") are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Trust Property (including underground contamination), except for those substances used by Grantor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such would not reasonably be expected to give rise to liability under Environmental Laws; (iii) to the best of Grantor's knowledge, information and belief, radon is not present at the Trust Property in excess or in violation of any applicable thresholds or standards or in amounts that require under applicable law disclosure to any tenant or occupant of or invitee to the Trust Property or to any governmental agency or the general public; (iv) to the best of Grantor's knowledge, information and belief, the Trust Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Grantor's knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Grantor or the Trust Property; (vi) to the best of Grantor's knowledge, information and belief, there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Trust Property; (vii) Grantor has received no notice of, and to the best of Grantor's knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Trust Property, nor does Grantor know of any basis for such an investigation, action, proceeding or claim; (viii) Grantor has received no notice of and, to the best of Xxxxxxx's knowledge and belief, there has been no claim by any party that any use, operation or condition of the Trust Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Grantor know of any basis for such an investigation, action, proceeding or claim. (b) Grantor has not received nor to the best of Grantor's knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws. (c) To the best of Grantor's knowledge, information and belief, the Trust Property is not listed or, to the best of Grantor's knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up. (d) Grantor shall comply with all applicable Environmental Laws. Grantor shall keep or cause the Trust Property to be kept free from Hazardous Substances (except those substances used by Grantor or any Tenant in the ordinary course of their respective businesses and except in compliance with all Environmental Laws and where such would not reasonably be expected to give rise to liability under Environmental Laws) and in compliance with all Environmental Laws, Grantor shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants in quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws. Without limiting the generality of the foregoing, during the term of this Deed of Trust, Grantor shall not install in the Improvements or permit to be installed in the Improvements any asbestos or asbestos-containing materials. (e) Grantor shall promptly notify Beneficiary if Grantor shall become aware of (i) the actual or potential existence of any Hazardous Substances on the Trust Property other than those occurring in the ordinary course of Grantor's business and which do not violate, or would not otherwise give rise to liability under Environmental Laws, (ii) any direct or indirect violation of, or other exposure to liability under, any Environmental Laws, (iii) any lien, action or notice affecting the Trust Property or Grantor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws, (iv) the institution of any investigation, inquiry or proceeding concerning Grantor or the Trust Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Deed of Trust incorrect in any material respect if made at the time of such discovery. Immediately upon receipt of same, Grantor, shall deliver to Beneficiary copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Trust Property or to Grantor. Grantor shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided disclosed in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxwriting to Lender: (i) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, none possession and, to the extent applicable, occupancy of Mortgagor nor the Mortgaged Property, except as expressly set forth in the environmental reports prepared for Lender in connection with the Loan (collectively, the “Environmental Report”), the Property nor any Tenant at the Premises nor the operations conducted thereon is not in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironmental regulation, natural resources contamination or the environmentclean-up (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.X.X. §0000 et seq. and 40 CFR §302.1 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. U.X.X. §0000 et seq. and 40 CFR § 116.1 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.)those relating to lead based paint, the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any and the regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagoramended; (ii) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproductsproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws, or any molds, spores or fungus or other harmful microbial matter (collectively, “Hazardous Substances”) are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination) except for those substances used, stored or handled by Borrower or Tenants in the ordinary course of their respective business and in compliance with all Environmental Laws; (iii) to the best of Borrower’s knowledge, after due and diligent inquiry, the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances; (iv) to Borrower’s knowledge, obtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, there are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances on the Property; (v) Borrower has received no written notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Borrower know of any basis for such a claim; and (vi) Borrower has received no written notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Borrower know of any basis for such a claim. (b) Borrower shall keep or cause the Property to be kept free from Hazardous Substances (except those substances disclosed in the Environmental Report and used, stored or handled by Borrower and Tenants in the ordinary course of their respective business and, in each case, in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants (except in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) and, without limiting the generality of the foregoing, during the term of this Mortgage, shall not install in the Improvements or permit to be installed in the Improvements asbestos-containing materials (“ACMs”) or any substance containing ACMs. Borrower shall, if required under applicable Environmental Laws, maintain all applicable Material Safety Data Sheets with respect to the Property, and make same available to Lender or Lender’s consultants upon reasonable notice. (c) Borrower shall promptly notify Lender if Borrower shall become aware of the possible existence of any Hazardous Substances on the Property (except as disclosed in the Environmental Report, in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) or if Borrower shall become aware that the Property is or may be in violation of any Environmental Laws. Further, immediately upon receipt of the same, Borrower shall deliver to Lender copies of any and all orders, notices, permits, applications, reports, and other communications, documents and instruments received, communicated to or obtained by Borrower pertaining to the actual, alleged or potential presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property. Borrower shall, promptly and when and as required by Lender, at Borrower’s sole cost and expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property which Lender reasonably determines to be migrating from the Property to such affected property, in accordance with, and to the extent required by, all applicable Environmental Laws, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and to the extent required by all applicable Environmental Laws, and shall further pay or cause to be paid, at no expense to Lender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property; in the event Borrower fails to take such actions, (1) Lender may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) or otherwise brought into compliance with Environmental Laws and any and all costs and expenses incurred by Lender in connection therewith, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand, and (2) Borrower hereby grants to Lender and its agents and employees access to the Property and a license to remove any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) and to do all things Lender shall deem necessary to bring the Property in conformance with Environmental Laws. Borrower covenants and agrees, at Borrower’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Lender), and hold Lender harmless from and against any and all liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Lender or the Property, and arising directly or indirectly from or out of: (i) the presence, release or threat of release of any Hazardous Substances on, in, under or affecting all or any portion of the Property regardless of whether or not caused by or within the control of Borrower; (ii) the violation of any Environmental Laws relating to or affecting the Property, whether or not caused by or within the control of Borrower; (iii) the failure by Borrower to comply fully with the terms and conditions of this Section 1.25; (iv) the breach of any representation or warranty contained in this Section 1.25; or (v) the enforcement of this Section 1.25, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Substances from all or any portion of the Property the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or (to the extent such Hazardous Substances were released from, or migrated from, the Property) any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any such surrounding areas. The indemnity set forth in this Section 1.25(c) shall also include, when realized, any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.25(c). Lender’s rights under this Section shall survive payment in full of the Obligations and shall be in addition to all other rights of Lender under this Mortgage, the Note and the other Loan Documents. (d) Upon Lender’s request, at any time after the occurrence of an Event of Default hereunder and in connection with a potential sale of the Property pursuant to Lender’s exercise of its rights and remedies under this Mortgage, or at such other time as Lender has reasonable grounds to believe that Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) are or have been released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws (except for items disclosed in the environmental report delivered to Lender in connection herewith), Borrower shall provide, at Borrower’s sole cost and expense, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender to determine the presence or absence of Hazardous Substances on the Property or an inspection or audit of the Improvements prepared by an engineering or consulting firm approved by Lender to determine the presence or absence of friable asbestos or substances containing asbestos on the Property. If Borrower fails to provide such inspection or audit within thirty (30) days after such request, Lender may order the same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit. The cost of such inspection or audit shall be immediately due and payable to Lender by Borrower on demand, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower. (e) The obligations of Borrower under this Mortgage (including, without limitation, this Section 1.25) with respect to Hazardous Substances shall not in any way limit the obligations of any party under the Hazardous Substances Indemnity.

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 2004, prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of Mortgagor’s knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environment, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagor; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such would not reasonably be expected to give rise to liability under Environmental Laws; (iii) to the best of Mortgagor’s knowledge, information and belief, radon is not present at the Mortgaged Property in excess or in violation of any applicable thresholds or standards or in amounts that require under applicable law disclosure to any tenant or occupant of or invitee to the Mortgaged Property or to any governmental agency or the general public; (iv) to the best of Mortgagor’s knowledge, information and belief, the Mortgaged Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Mortgagor’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Mortgagor or the Mortgaged Property; (vi) to the best of Mortgagor’s knowledge, information and belief, there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property; (vii) Mortgagor has received no notice of, and to the best of Mortgagor’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Mortgaged Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; (viii) Mortgagor has received no notice of

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of Mortgagor’s 's knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is not in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironmental regulation, natural resources contamination or the environmentclean-up (collectively, "Environmental Laws"), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. (S)9601 et seq. and 40 CFR (S)302.1 et seq.), -- --- -- --- the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. (S)6901 et seq.), -- --- the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C. (S)1251 et seq. and 40 CFR -- --- (S)116.1 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.)those relating to lead based paint, the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous -- --- Materials Transportation Act (49 U.S.C. §1801 (S)1801 et seq.), including any and the regulations -- --- promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagoramended; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproductsproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, "Hazardous Substances") are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination) except for those substances used by Mortgagor in the ordinary course of its business and in compliance with all Environmental Laws; (iii) the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances; (iv) there are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances on the Property; (v) Mortgagor has received no notice of, and to the best of Mortgagor's knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Mortgagor know of any basis for such a claim; and (vi) Mortgagor has received no notice of and, to the best of Mortgagor's knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Mortgagor know of any basis for such a claim. (b) Mortgagor shall keep or cause the Property to be kept free from Hazardous Substances (except those substances used by Mortgagor in the ordinary course of its business and in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all tenants of space in the Improvements, and, without limiting the generality of the foregoing, during the term of this Mortgage, shall not install in the Improvements or permit to be installed in the Improvements asbestos or any substance containing asbestos. (c) Mortgagor shall promptly notify Mortgagee if Mortgagor shall become aware of the possible existence of any Hazardous Substances on the Property or if Mortgagor shall become aware that the Property is or may be in direct or indirect violation of any Environmental Laws. Further, immediately upon receipt of the same, Mortgagor shall deliver to Mortgagee copies of any and all orders, notices, permits, applications, reports, and other communications, documents and instruments pertaining to the actual, alleged or potential presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property. Mortgagor shall, promptly and when and as required by Mortgagee, at Mortgagor's sole cost and expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws (and in all events in a manner satisfactory to Mortgagee), and shall further pay or cause to be paid, at no expense to Mortgagee, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Mortgagor fails to do so, Mortgagee may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances or otherwise brought into conformance with Environmental Laws and any and all costs and expenses incurred by Mortgagee in connection therewith, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the indebtedness evidenced by the Loan Agreement. Mortgagor hereby grants to Mortgagee and its agents and employees access to the Property and a license to remove any items deemed by Mortgagee to be Hazardous Substances and to do all things Mortgagee shall deem necessary to bring the Property in conformance with Environmental Laws. Mortgagor covenants and agrees, at Mortgagor's sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Mortgagee), and hold Mortgagee harmless from and against any and all liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys', consultants' and experts' fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee or the Property, and arising directly or indirectly from or out of: (i) the presence, release or threat of release of any Hazardous Substances on, in, under or affecting all or any portion of the Property or any surrounding areas, regardless of whether or not caused by or within the control of Mortgagor; (ii) the violation of any Environmental Laws relating to or affecting the Property, whether or not caused by or within the control of Mortgagor; (iii) the failure by Mortgagor to comply fully with the terms and conditions of this Section 1.31; (iv) the breach of any representation or warranty contained in this Section 1.31; or (v) the enforcement of this Section 1.31, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Substances from all or any portion of the Property or any surrounding areas, the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any surrounding areas. The indemnity set forth in this Section 1.31(c) shall also include any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.31(c). Mortgagee's rights under this Section shall survive payment in full of the indebtedness secured hereby and shall be in addition to all other rights of Mortgagee under this Mortgage, the Loan Agreement and the other Loan Documents. (d) Upon Mortgagee's request, at any time after the occurrence of a default hereunder or at such other time as Mortgagee has reasonable grounds to believe that Hazardous Substances are or have been released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws, Mortgagor shall provide, at Mortgagor's sole cost and expense, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Mortgagee indicating the presence or absence of Hazardous Substances on the Property or an inspection or audit of the Improvements prepared by an engineering or consulting firm approved by Mortgagee indicating the presence or absence of friable asbestos or substances containing asbestos on the Property. If Mortgagor fails to provide such inspection or audit within thirty (30) days after such request, Mortgagee may order the same, and Mortgagor hereby grants to Mortgagee and its employees and agents access to the Property and a license to undertake such inspection or audit. The cost of such inspection or audit, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately due and payable to Mortgagee by Mortgagor on demand and shall be secured hereby and by all of the other Loan Documents securing all or any part of the indebtedness evidenced by the Loan Agreement.

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) except as disclosed in any environmental site assessment report prepared by IVI Environmental Inc. and dated March 3, 2000 (the "Environmental Report"), to the best of Mortgagor’s 's knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironment (collectively, natural resources or the environment"Environment Laws"), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. Section 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C. Section 1251 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 40 42 U.S.C. §Section 11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §Section 1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagor; (ii) to except as otherwise disclosed in the best of Mortgagor’s knowledge, information and beliefEnvironmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances radon or raw materials which include hazardous constituentsmaterials) or any other substances or materials materials, which are included under or regulated by Environmental Laws (collectively, "Hazardous Substances") are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws; (iii) the Mortgaged Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (iv) except as described in the Environmental Report, there is no pending, nor, to Mortgagor's knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Mortgagor or the Mortgaged Property; except as otherwise disclosed in the Environmental Report there are no underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property that do not comply with Environmental Laws; (v) Mortgagor has received no notice of, and to the best of Mortgagor's knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with FFrespect to any condition, use or operation of the Mortgaged Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; (vi) Mortgagor has received no notice of and, to the best of Mortgagor's knowledge and belief, there has been no claim by any party that any use, operation or condition of the Mortgaged Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; and (vii) radon is not present at the Mortgaged Property in excess or in violation of Environmental Laws that require disclosure to any tenant or occupant of or invitee to the Mortgaged Property or to any governmental agency or the general public. (b) Except as otherwise disclosed in the Environmental Report, Mortgagor has not received nor to the best of Mortgagor's knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws; and (c) Except as otherwise disclosed in the Environmental Report, to the best of Mortgagor's knowledge, information and belief, neither the Mortgaged Property, nor any property to which Mortgagor has, in connection with the maintenance or operation of the Mortgaged Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances is listed or, to the best of Mortgagor's knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of Mortgagor’s 's knowledge, information and belief, none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. '9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. '6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C. '1251 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C. '7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §'11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 U.S.C. '1531 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C. '2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §'651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §'1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagor; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, "Hazardous Substances") are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Mortgaged Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Statutes and where such could not reasonably be expected to give rise to liability under Environmental Laws; (iii) the Mortgaged Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (iv) there is no pending, nor, to Mortgagor's knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Mortgagor or the Mortgaged Property; there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Mortgaged Property; (v) Mortgagor has received no notice of, and to the best of Mortgagor's knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Mortgaged Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; vi) Mortgagor has received no notice of and, to the best of Mortgagor's knowledge and belief, there has been no claim by any party that any use, operation or condition of the Mortgaged Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim. (b) Mortgagor has not received nor to the best of Mortgagor's knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws; and (c) Neither the Mortgaged Property, nor to the best of Mortgagor's knowledge, information and belief, any property to which Mortgagor has, in connection with the maintenance or operation of the Mortgaged Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances is listed or, to the best of Mortgagor's knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up. (d) Mortgagor shall comply with all applicable Environmental Laws. Mortgagor shall keep or cause the Mortgaged Property to be kept free from Hazardous Substances (except those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and except in compliance with all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws) and in compliance with all Environmental Laws, Mortgagor shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants in quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws. Without limiting the generality of the foregoing, during the term of this Mortgage, Mortgagor shall not install in the Improvements or permit to be installed in the Improvements any asbestos or asbestos-containing asbestos. (e) Mortgagor shall promptly notify Mortgagee if Mortgagor shall become aware of (i) the actual or potential existence of any Hazardous Substances on the Mortgaged Property other than those occurring in the ordinary course of Mortgagor's business and which do not violate, or would not otherwise give rise to liability under Environmental Laws, (ii) any direct or indirect violation of, or other exposure to liability under, any Environmental Laws, (iii) any lien, action or notice affecting the Mortgaged Property or Mortgagor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws, (iv) the institution of any investigation, inquiry or proceeding concerning Mortgagor or the Mortgaged Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Mortgage incorrect in any respect if made at the time of such discovery. Immediately upon receipt of same, Mortgagor, shall deliver to Mortgagee copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Mortgaged Property or to Mortgagor. Indemnitors shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of Environmental Laws or any condition that could give rise liability under Environmental Laws. Without limiting the foregoing, Mortgagor shall, promptly and regardless of the source of the contamination or threat to the environment or human health, at its own expense, take all actions as shall be necessary or prudent, for the clean-up of any and all portions of the Mortgaged Property or other affected property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws (and in all events in a manner satisfactory to Mortgagee) and shall further pay or cause to be paid, at no expense to Mortgagee, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Mortgaged Property. In the event Mortgagor fails to do so, Mortgagee may, but shall not be obligated to, cause the Mortgaged Property or other affected property to be freed from any Hazardous Substances or otherwise brought into conformance with Environmental Laws and any and all costs and expenses incurred by Mortgagee in connection therewith, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. Mortgagor hereby grants to Mortgagee and its agents and employees access to the Mortgaged Property and a license to remove any items deemed by Mortgagee to be Hazardous Substances and to do all things Mortgagee shall deem necessary to bring the Mortgaged Property into conformance with Environmental Laws. (f) Mortgagor covenants and agrees, at Mortgagor's sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Mortgagee), and hold Mortgagee harmless from and against any and all liens, damages (including without limitation, punitive or exemplary damages), losses, liabilities (including, without limitation, strict liability), obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys', consultants' and experts' fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee or the Mortgaged Property, and arising directly or indirectly from or out of: (i) any violation or alleged violation of, or liability or alleged liability under, any Environmental Law; (ii) the presence, release or threat of release of or exposure to any Hazardous Substances on, in, under or affecting all or any portion of the Mortgaged Property or any surrounding areas, regardless of whether or not caused by or within the control of Mortgagor; (iii) any transport, treatment, recycling, storage, disposal or arrangement therefor of Hazardous Substances whether on the Mortgaged Property, originating from the Mortgaged Property, or otherwise associated with Mortgagor or any operations conducted on the Mortgaged Property at any time; (iv) the failure by Mortgagor to comply fully with the terms and conditions of this Section 1.31; (v) the breach of any representation or warranty contained in this Section 1.31; (vi) the enforcement of this Section 1.31, including, without limitation, the cost of assessment, investigation, containment, removal and/or remediation of any and all Hazardous Substances from all or any portion of the Mortgaged Property or any surrounding areas, the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Mortgaged Property or any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with Environmental Laws in connection with all or any portion of the Mortgaged Property or any surrounding areas. The indemnity set forth in this Section 1.31 shall also include any diminution in the value of the security afforded by the Mortgaged Property or any future reduction in the sales price of the Mortgaged Property by reason of any matter set forth in this Section 1.31. The foregoing indemnity shall specifically not include any such costs relating to Hazardous Substances which are initially placed on, in or under the Mortgaged Property after foreclosure or other taking of title to the Mortgaged Property by Mortgagee or its successor or assigns. Mortgagee's rights under this Section shall survive payment in full of the Debt and shall be in addition to all other rights of Mortgagee under this Mortgage, the Note and the other Loan Documents. (g) Upon Mortgagee's request, at any time after the occurrence of an Event of Default or at such other time as Mortgagee has reasonable grounds to believe that Hazardous Substances are or have been released, stored or disposed of on the Mortgaged Property, or on property contiguous with the Mortgaged Property, or that the Mortgaged Property may be in violation of the Environmental Laws, Mortgagor shall perform or cause to be performed, at Mortgagor's sole cost and expense and in scope, form and substance satisfactory to Mortgagee, an inspection or audit of the Mortgaged Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Mortgagee indicating the presence or absence of Hazardous Substances on the Mortgaged Property, the compliance or non-compliance status of the Mortgaged Property and the operations conducted thereon with applicable Environmental Laws, or an inspection or audit of the Mortgaged Property prepared by an engineering or consulting firm approved by Mortgagee indicating the presence or absence of friable asbestos or substances containing asbestos or lead or substances containing lead or lead based paint ("Lead Based Paint") on the Mortgaged Property. If Mortgagor fails to provide reports of such inspection or audit within thirty (30) days after such request, Mortgagee may order the same, and Mortgagor hereby grants to Mortgagee and its employees and agents access to the Mortgaged Property and an irrevocable license to undertake such inspection or audit. The cost of such inspection or audit, together with interest thereon at the Default Interest Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. (h) Reference is made to that certain Environmental Indemnity Agreement of even date herewith by and among Mortgagor, Tenant and Mortgagee (the "Environmental Indemnity Agreement"). The provisions of this Mortgage and the Environmental Indemnity Agreement shall be read together to maximize the coverage with respect to the subject matter thereof, as determined by Mortgagee. (i) Mortgagor covenants and agrees to institute, within thirty (30) days after the discovery of any asbestos containing materials ("ACM") in the Improvements and written request from Mortgagee, an operations and maintenance program (the "Maintenance Program") designed by an environmental consultant, satisfactory to Mortgagee, with respect to ACM's, consistent with "Guidelines for Controlling Asbestos-Containing Materials in Buildings" (USEPA, 1985) and other relevant guidelines, and such Maintenance Program will thereafter continuously remain in effect until the Debt secured hereby is repaid in full. In furtherance of the foregoing, Mortgagor shall thereafter inspect and maintain all ACM's on a regular basis and ensure that all ACM's shall be maintained in a condition that prevents exposure of residents to ACM's at all times. Without limiting the generality of the preceding sentence, Mortgagee may require (i) periodic notices or reports to Mortgagee in form, substance and at such intervals as Mortgagee may specify, (ii) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (iii) at Mortgagor's sole expense, supplemental examination of the Mortgaged Property by consultants specified by Mortgagee, and (iv) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Hazardous Waste and Other Substances. (a) Mortgagor Except as otherwise may be disclosed in that certain Phase I Environmental Site Assessment of the Property, dated March 6, 2007 and prepared by LandAmerica Assessment Corporation (the “Phase I”), Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of MortgagorBorrower’s knowledge, information and belief, none of Mortgagor Borrower nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.S.C. §0000 et seqxx xeq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.S.C. §0000 et seqxx xeq.), the Federal Water Pollution Control Act (33 X.X.X. U.S.C. §0000 et seqxx xeq.), the Clean Air Act (42 X.X.X. U.S.C. §0000 et seqxx xeq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. U.S.C. §0000 et seqxx xeq.), the Toxic Substances Control Act (15 X.X.X. U.S.C. §0000 et seqxx xeq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any regulations promulgated pursuant to said laws, all as amended from time to time (collectively, “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of MortgagorBorrower; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), ) polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Borrower or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such Hazardous Substances could not reasonably be expected to give rise to liability under Environmental Laws; (iii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require disclosure under applicable law to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public; (iv) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (v) there is no pending, nor, to Borrower’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Borrower or the Property; (vi) there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (vii) Borrower has received no notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim; and (viii) Borrower has received no notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Borrower know of any basis for such an investigation, action, proceeding or claim. For the purposes hereof, “Toxic Mold” shall mean any mold or fungus at the Property which is of a type (i) that might pose a significant risk to human health or the environment or (ii) that would negatively impact the value of the Property.

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided disclosed in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxwriting to Lender: (i) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, none possession and, to the extent applicable, occupancy of Mortgagor nor the Mortgaged Property, except as expressly set forth in the environmental reports prepared for Lender in connection with the Loan (collectively, the “Environmental Report”), the Property nor any Tenant at the Premises nor the operations conducted thereon is not in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironmental regulation, natural resources contamination or the environmentclean-up (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.X.X. §0000 et seq. and 40 CFR §302.1 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.X.X. §0000 et seq.), the Federal Water Pollution Control Act (33 X.X.X. U.X.X. §0000 et seq. and 40 CFR § 116.1 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.)those relating to lead based paint, the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any and the regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagoramended; (ii) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproductsproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws, or any molds, spores or fungus or other harmful microbial matter (collectively, “Hazardous Substances”) are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination) except for those substances used, stored or handled by Borrower or Tenants in the ordinary course of their respective business and in compliance with all Environmental Laws; (iii) to the best of Borrower’s knowledge, after due and diligent inquiry, the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances; (iv) to Borrower’s knowledge, obtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, there are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances on the Property; (v) Borrower has received no written notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Borrower know of any basis for such a claim; and (vi) Borrower has received no written notice of and, to the best of Borrower’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Borrower know of any basis for such a claim. (b) Borrower shall keep or cause the Property to be kept free from Hazardous Substances (except those substances disclosed in the Environmental Report and used, stored or handled by Borrower and Tenants in the ordinary course of their respective business and, in each case, in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants (except in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) and, without limiting the generality of the foregoing, during the term of this Mortgage, shall not install in the Improvements or permit to be installed in the Improvements asbestos-containing materials (“ACMs”) or any substance containing ACMs. Borrower shall, if required under applicable Environmental Laws, maintain all applicable Material Safety Data Sheets with respect to the Property, and make same available to Lender or Lender’s consultants upon reasonable notice. (c) Borrower shall promptly notify Lender if Borrower shall become aware of the possible existence of any Hazardous Substances on the Property (except as disclosed in the Environmental Report, in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) or if Borrower shall become aware that the Property is or may be in violation of any Environmental Laws. Further, immediately upon receipt of the same, Borrower shall deliver to Lender copies of any and all orders, notices, permits, applications, reports, and other communications, documents and instruments received, communicated to or obtained by Borrower pertaining to the actual, alleged or potential presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property. Borrower shall, promptly and when and as required by Lender, at Borrower’s sole cost and expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property which Lender reasonably determines to be migrating from the Property to such affected property, in accordance with, and to the extent required by, all applicable Environmental Laws, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and to the extent required by all applicable Environmental Laws, and shall further pay or cause to be paid, at no expense to Lender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property; in the event Borrower fails to take such actions, (1) Lender may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) or otherwise brought into compliance with Environmental Laws and any and all costs and expenses incurred by Lender in connection therewith, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand, and (2) Borrower hereby grants to Lender and its agents and employees access to the Property and a license to remove any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) and to do all things Lender shall deem necessary to bring the Property in conformance with Environmental Laws. Borrower covenants and agrees, at Borrower’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Lender), and hold Lender harmless from and against any and all liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Lender or the Property, and arising directly or indirectly from or out of: (i) the presence, release or threat of release of any Hazardous Substances on, in, under or affecting all or any portion of the Property regardless of whether or not caused by or within the control of Borrower; (ii) the violation of any Environmental Laws relating to or affecting the Property, whether or not caused by or within the control of Borrower; (iii) the failure by Borrower to comply fully with the terms and conditions of this Section 1.25; (iv) the breach of any representation or warranty contained in this Section 1.25; or (v) the enforcement of this Section 1.25, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Substances from all or any portion of the Property the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or (to the extent such Hazardous Substances were released from, or migrated from, the Property) any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any such surrounding areas. The indemnity set forth in this Section 1.25(c) shall also include, when realized, any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.25(c). Lender’s rights under this Section shall survive payment in full of the Obligations and shall be in addition to all other rights of Lender under this Mortgage, the Note and the other Loan Documents. (d) Upon Lender’s request, at any time after the occurrence of an Event of Default hereunder and in connection with a potential sale of the Property pursuant to Lender’s exercise of its rights and remedies under this Mortgage, or at such other time as Lender has reasonable grounds to believe that Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) are or have been released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws (except for items disclosed in the environmental report delivered to Lender in connection herewith), Borrower shall provide, at Borrower’s sole cost and expense, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender to determine the presence or absence of Hazardous Substances on the Property or an inspection or audit of the Improvements prepared by an engineering or consulting firm approved by Lender to determine the presence or absence of friable asbestos or substances containing asbestos on the Property. If Borrower fails to provide such inspection or audit within thirty (30) days after such request, Lender may order the same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit. The cost of such inspection or audit shall be immediately due and payable to Lender by Borrower on demand, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower. (e) The obligations of Borrower under this Mortgage (including, without limitation, this Section 1.25) with respect to Hazardous Substances shall not in any way limit the obligations of any party under the Hazardous Substances Indemnity. (f) Borrower covenants and agrees to institute, within thirty (30) days after the date hereof, an operations and maintenance program (the “ACM O&M Plan”) designed by an environmental consultant, satisfactory to the Lender, with respect to “ACM’s”, consistent with “Guidelines for Controlling Asbestos-Containing Materials in Buildings” (USEPA, 1985) and other relevant guidelines, and such ACM O&M Plan will hereafter continuously remain in effect until the Obligations is repaid in full. In furtherance of the foregoing, Borrower shall inspect and maintain all ACM’s on a regular basis and ensure that all ACM’s shall be maintained in a condition that prevents exposure of tenants or invitees to ACM’s at all times. Without limiting the generality of the preceding sentence, Lender may reasonably require (i) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (ii) an amendment to the ACM O&M Plan to address changing circumstances, laws or other matters, (iii) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, and (iv) variation of the ACM O&M Plan in response to the reports provided by any such consultants.

Hazardous Waste and Other Substances. (a) Mortgagor Borrower hereby represents and warrants to Mortgagee Lender that, as of the date hereof, except as otherwise provided disclosed in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxxwriting to Lender: (i) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, none possession and, to the extent applicable, occupancy of Mortgagor nor the Mortgaged Property, except as expressly set forth in the environmental reports prepared for Lender in connection with the Loan (collectively, the “Environmental Report”), the Property nor any Tenant at the Premises nor the operations conducted thereon is not in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmentenvironmental regulation, natural resources contamination or the environmentclean-up (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. U.S.C. §0000 9601 et seq. and 40 CFR §302.1 et seq.), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. U.S.C. §0000 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. U.S.C. §0000 1251 et seq. and 40 CFR § 116.1 et seq.), the Clean Air Act (42 X.X.X. §0000 et seq.)those relating to lead based paint, the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 X.X.X. §0000 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), including any and the regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagoramended; (ii) to the best of MortgagorBorrower’s knowledge, information and beliefobtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials containing more than 1% asbestos, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproductsproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws, or any molds, spores or fungus or other harmful microbial matter (collectively, “Hazardous Substances”) are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination) except for those substances used, stored or handled by Borrower or Tenants in the ordinary course of their respective business and in compliance with all Environmental Laws; (iii) to the best of Borrower’s knowledge, after due and diligent inquiry, the Property is not subject to any private or governmental lien or judicial or administrative notice or action relating to Hazardous Substances; (iv) to Borrower’s knowledge, obtained in Borrower’s ownership, possession and, to the extent applicable, occupancy of the Property, except as expressly set forth in the Environmental Report, there are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances on the Property; (v) Borrower has received no written notice of, and to the best of Borrower’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Borrower know of any basis for such a claim; and (vi) Borrower has received no written notice of and, to the best of Bxxxxxxx’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Borrower know of any basis for such a claim. (b) Borrower shall keep or cause the Property to be kept free from Hazardous Substances (except those substances disclosed in the Environmental Report and used, stored or handled by Borrower and Tenants in the ordinary course of their respective business and, in each case, in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants (except in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) and, without limiting the generality of the foregoing, during the term of this Deed of Trust, shall not install in the Improvements or permit to be installed in the Improvements asbestos-containing materials (“ACMs”) or any substance containing ACMs. Borrower shall, if required under applicable Environmental Laws, maintain all applicable Material Safety Data Sheets with respect to the Property, and make same available to Lender or Lender’s consultants upon reasonable notice. (c) Borrower shall promptly notify Lender if Borrower shall become aware of the possible existence of any Hazardous Substances on the Property (except as disclosed in the Environmental Report, in the ordinary course of a business that is not a Prohibited Use and in each case in compliance with all Environmental Laws) or if Borrower shall become aware that the Property is or may be in violation of any Environmental Laws. Further, immediately upon receipt of the same, Borrower shall deliver to Lender copies of any and all orders, notices, permits, applications, reports, and other communications, documents and instruments received, communicated to or obtained by Borrower pertaining to the actual, alleged or potential presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property. Borrower shall, promptly and when and as required by Lender, at Borrower’s sole cost and expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property which Lender reasonably determines to be migrating from the Property to such affected property, in accordance with, and to the extent required by, all applicable Environmental Laws, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and to the extent required by all applicable Environmental Laws, and shall further pay or cause to be paid, at no expense to Lender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property; in the event Borrower fails to take such actions, (1) Lender may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) or otherwise brought into compliance with Environmental Laws and any and all costs and expenses incurred by Lxxxxx in connection therewith, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand, and (2) Borrower hereby grants to Lender and its agents and employees access to the Property and a license to remove any Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) and to do all things Lender shall deem necessary to bring the Property in conformance with Environmental Laws. Borrower covenants and agrees, at Bxxxxxxx’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Lxxxxx), and hold Lender harmless from and against any and all liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Lender or the Property, and arising directly or indirectly from or out of: (i) the presence, release or threat of release of any Hazardous Substances on, in, under or affecting all or any portion of the Property regardless of whether or not caused by or within the control of Borrower; (ii) the violation of any Environmental Laws relating to or affecting the Property, whether or not caused by or within the control of Borrower; (iii) the failure by Borrower to comply fully with the terms and conditions of this Section 1.25; (iv) the breach of any representation or warranty contained in this Section 1.25; or (v) the enforcement of this Section 1.25, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Substances from all or any portion of the Property the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or (to the extent such Hazardous Substances were released from, or migrated from, the Property) any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any such surrounding areas. The indemnity set forth in this Section 1.25(c) shall also include, when realized, any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.25(c). Lxxxxx’s rights under this Section shall survive payment in full of the Obligations and shall be in addition to all other rights of Lender under this Deed of Trust, the Note and the other Loan Documents. (d) Upon Lxxxxx’s request, at any time after the occurrence of an Event of Default hereunder and in connection with a potential sale of the Property pursuant to Lender’s exercise of its rights and remedies under this Deed of Trust, or at such other time as Lender has reasonable grounds to believe that Hazardous Substances (except for those Hazardous Substances disclosed in the Environmental Report, used in the ordinary course of a business that are not a Prohibited Use and in each case are in compliance with all Environmental Laws) are or have been released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws (except for items disclosed in the environmental report delivered to Lender in connection herewith), Borrower shall provide, at Borrower’s sole cost and expense, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender to determine the presence or absence of Hazardous Substances on the Property or an inspection or audit of the Improvements prepared by an engineering or consulting firm approved by Lender to determine the presence or absence of friable asbestos or substances containing asbestos on the Property. If Borrower fails to provide such inspection or audit within thirty (30) days after such request, Lender may order the same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit. The cost of such inspection or audit shall be immediately due and payable to Lender by Borrower on demand, together with interest thereon at the Default Interest Rate from the date demand for payment is made by Lender until actually paid by Bxxxxxxx. (e) The obligations of Borrower under this Deed of Trust (including, without limitation, this Section 1.25) with respect to Hazardous Substances shall not in any way limit the obligations of any party under the Hazardous Substances Indemnity. (f) Borrower covenants and agrees to institute, within thirty (30) days after the date hereof, an operations and maintenance program (the “ACM O&M Plan”) designed by an environmental consultant, satisfactory to the Lender, with respect to “ACM’s”, consistent with “Guidelines for Controlling Asbestos-Containing Materials in Buildings” (USEPA, 1985) and other relevant guidelines, and such ACM O&M Plan will hereafter continuously remain in effect until the Obligations is repaid in full. In furtherance of the foregoing, Borrower shall inspect and maintain all ACM’s on a regular basis and ensure that all ACM’s shall be maintained in a condition that prevents exposure of tenants or invitees to ACM’s at all times. Without limiting the generality of the preceding sentence, Lender may reasonably require (i) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (ii) an amendment to the ACM O&M Plan to address changing circumstances, laws or other matters, (iii) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lxxxxx, and (iv) variation of the ACM O&M Plan in response to the reports provided by any such consultants

Hazardous Waste and Other Substances. (a) Mortgagor hereby represents and warrants to Mortgagee that, as of the date hereof, except as otherwise provided in that certain Environmental Site Assessment dated August 30, 2004 prepared by Xxxxx Xxxx XxXxxxxxx & Xxxxx: (i) to the best of Mortgagor’s knowledge, information and belief, and except as otherwise set forth in the Phase I environmental site assessment procured by Mortgagee prior to the date hereof in connection with the making of the Loan (the “Environmental Report”): (i) none of Mortgagor nor the Mortgaged Property nor any Tenant at the Premises nor the operations conducted thereon has at any time been or presently is in direct or indirect violation of or otherwise exposed to any liability under any applicable local, state or federal law, rule or regulation or common law duty pertaining to human health as affected by the environmenthealth, natural resources or the environmentenvironment (collectively, “Environmental Laws”), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 X.X.X. §0000 U.S.C. § 9601 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 X.X.X. §0000 U.S.C. § 1251 et seq.), the Clean Air Act (42 X.X.X. §0000 U.S.C. § 7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §§ 11001 et seq.), . the Endangered Species Act (16 X.X.X. §0000 U.S.C. § 1531 et seq.), the Toxic Substances Control Act (15 X.X.X. §0000 U.S.C. § 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.) and or the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), including or any regulations promulgated pursuant to said laws, all as amended from time to time (“Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Mortgaged Property, whether or not used by or within the control of Mortgagortime; (ii) to the best of Mortgagor’s knowledge, information and belief, no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, materials asbestos or asbestos-containing more than 1% asbestosmaterials, lead based paint, Toxic Mold (as hereinafter defined), polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Mortgagor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such use could not reasonably be expected to give rise to liability under Environmental Laws (“Permitted Materials”); (iii) the Property is not subject to any private or governmental lien arising under Environmental Laws; (iv) there is no pending, nor, to Mortgagor’s knowledge, information or belief, threatened in writing litigation arising under Environmental Laws affecting Mortgagor or the Property; there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (v) Mortgagor has received no notice of, and to the best of Mortgagor’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim; and (vi) Mortgagor has received no notice of and, to the best of Mortgagor’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Mortgagor know of any basis for such an investigation, action, proceeding or claim. (b) Mortgagor has not received nor, to the best of Mortgagor’s knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws. (c) Neither the Property, nor to the best of Mortgagor’s knowledge, information and belief, any property to which Mortgagor has, in connection with the maintenance or operation of the Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances to, is listed or, to the best of Mortgagor’s knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up. (d) Mortgagor shall comply with all applicable Environmental Laws. Mortgagor shall keep or cause the Property to be kept free from Hazardous Substances (except Permitted Materials). (e) Mortgagor shall promptly notify Mortgagee of (i) the actual or potential existence of any Hazardous Substances on the Property other than Permitted Materials, (ii) any violation relating to the Property of, or other exposure to liability under, any Environmental Laws, (iii) any lien, action or notice affecting the Property or Mortgagor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws arising from any condition or activity on the Property, (iv) the institution of any investigation, inquiry or proceeding concerning Mortgagor or the Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Mortgage incorrect in any respect if made at the time of such discovery. Immediately upon receipt of same, Mortgagor shall deliver to Mortgagee copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Property or to Mortgagor. Mortgagor shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of Environmental Laws or any condition that is reasonably likely to give rise to liability under Environmental Laws. Without limiting the foregoing, Mortgagor shall, promptly and regardless of the source of the contamination or threat to the environment or human health, at its own expense, take all actions as shall be reasonably necessary or prudent, for the clean-up of Hazardous Substances (other than Permitted Materials) affecting any and all portions of the Property or other affected property affected by Hazardous Substances located or released in, on, upon or emanating from the Property; including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws (and in all events in a manner reasonably satisfactory to Mortgagee, provided, however, so long as Mortgagor has complied with all Environmental Laws, Mortgagee shall be deemed satisfied) and shall further pay or cause to be paid, at no expense to Mortgagee, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Mortgagor fails to do so, Mortgagee may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances, the presence of which violates Environmental Laws, or otherwise brought into conformance with Environmental Laws. Mortgagor hereby grants to Mortgagee and its agents and employees access during reasonable times on reasonable notice to the Property and a license to remove any items deemed by Mortgagee to be Hazardous Substances, the presence of which violates Environmental Laws, and to do all things Mortgagee shall reasonably deem necessary to bring the Property into conformance with Environmental Laws. (f) Mortgagor covenants and agrees, at Mortgagor’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts reasonably acceptable to Mortgagee), and hold Mortgagee harmless from and against any and all liens, damages (including without limitation, punitive or exemplary damages), losses, liabilities (including, without limitation, strict liability), obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and reasonable out-of-pocket disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee or the Property, and arising directly or indirectly from or out of: (i) any violation or alleged violation of, or liability or alleged liability under, any Environmental Law; (ii) the presence, release or threat of release of or exposure to any Hazardous Substances on, in, under or affecting all or any portion of the Property or any surrounding areas affected by Hazardous Substances located or released in, on, upon or emanating from the Property, regardless of whether or not caused by or within the control of Mortgagor; (iii) any transport, treatment, recycling, storage, disposal or arrangement therefor of Hazardous Substances whether on the Property, originating from the Property, or otherwise associated with Mortgagor or any operations conducted on the Property at any time; (iv) the failure by Mortgagor to comply fully with the terms and conditions of this Section 4.1; (v) the material breach of any representation or warranty contained in this Section 4.1; and (vi) the enforcement of this Section 4.1. The indemnity set forth in this Section 4.1 shall also include any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 4.1. Notwithstanding the foregoing, Mortgagor shall not be required to indemnify Mortgagee to the extent such liability arises out of the gross negligence or willful conduct of Mortgagee. Mortgagee’s rights under this Section shall survive payment in full of the Debt and shall be in addition to all other rights of Mortgagee under this Mortgage, the Note and the other Loan Documents. (g) Upon Mortgagee’s request, at any time after the occurrence of an Event of Default which has not been cured or waived or at such other time as Mortgagee has reasonable grounds to believe that Hazardous Substances other than Permitted Materials are or have been released, stored or disposed of on the Property, or on property affecting the Property, or that the Property may be in violation of the Environmental Laws, Mortgagor shall perform or cause to be performed, at Mortgagor’s sole cost and expense and in scope, form and substance reasonably satisfactory to Mortgagee, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Mortgagee indicating the presence or absence of Hazardous Substances on the Property, the compliance or non-compliance status of the Property and the operations conducted thereon with applicable Environmental Laws, or an inspection or audit of the Property prepared by an engineering or consulting firm reasonably approved by Mortgagee indicating the presence or absence of friable asbestos or substances containing asbestos or lead or substances containing lead or lead based paint (“Lead Based Paint”) on the Property. If Mortgagor fails to provide reports of such inspection or audit within thirty (30) days after receipt of such request, Mortgagee may order the same at Mortgagor’s expense, and Mortgagor hereby grants to Mortgagee and its employees and agents access to the Property and an irrevocable license to undertake such inspection or audit. (h) Reference is made to that certain Environmental Indemnity Agreement of even date herewith from Mortgagor and Xxxx Xxxxxx for the benefit of Mortgagee (the “Environmental Indemnity Agreement”). The provisions of this Mortgage and the Environmental Indemnity Agreement shall be read together to maximize the coverage with respect to the subject matter thereof, as determined by Mortgagee. (i) If, prior to the date hereof it was determined that the Property contains asbestos containing materials (“ACM’s”), Mortgagor covenants and agrees, if necessary under such guidelines, to institute, within thirty (30) days after the date hereof, an operations and maintenance program (the “Maintenance Program”) designed by an environmental consultant, reasonably satisfactory to Mortgagee, with respect to ACM’s, consistent with “Guidelines for Controlling Asbestos-Containing Materials in Buildings” (USEPA, 1985) and other relevant guidelines, and such Maintenance Program will hereafter continuously remain in effect until the Debt secured hereby is repaid in full or assigned pursuant to the terms of the Loan Documents. If, at any time hereafter, ACM’s are suspected of being present on the Property, Mortgagor agrees to institute, within forty-five (45) days of such discovery, a Maintenance Program. In furtherance of the foregoing, Mortgagor shall inspect and maintain all ACM’s on a regular basis and ensure that all ACM’s shall be maintained in a condition that prevents exposure of occupants to ACM’s at all times. Without limiting the generality of the preceding sentence, Mortgagee may require (i) periodic notices or reports to Mortgagee in form, substance and at such intervals as Mortgagee may reasonably specify, (ii) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (iii) at Mortgagor’s sole expense, supplemental examination of the Property by consultants reasonably approved by Mortgagee, and (iv) variation of the operations and maintenance program in response to the reports provided by any such consultants. (j) If, prior to the date hereof, it was determined that the Property contains Lead Based Paint, Mortgagor had prepared an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”). If, at any time hereafter, Lead Based Paint is suspected of being present on the Property, Mortgagor agrees, at its sole cost and expense and within thirty (30) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, reasonably acceptable to Mortgagee. (k) Mortgagor agrees that if it has been, or if at any time hereafter it is, determined that the Property contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to the date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Mortgagor shall, at its sole cost and expenses, develop and implement, and thereafter diligently and continuously carry out (or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the Lead Based Paint on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, reasonably acceptable to Mortgagee (together with any Lead Based Paint Report, the “O&M Plan”). If an O&M Plan has been prepared prior to the date hereof, Mortgagor agrees to diligently and continually carry out (or cause to be carried out) the provisions thereof. Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of all records, papers and forms required under the Environmental Laws.