it change the fact that the
Vendor is itself responsible for all representations and warranties in this
Clause 7.
7.03 THE VENDOR COVENANTS AND AGREES, AT ITS SOLE COST AND EXPENSE, TO
INDEMNIFY, DEFEND (INCLUDING WITHOUT LIMITATION AT TRIAL AND APPELLATE LEVELS,
AND WITH QUALIFIED ATTORNEYS, CONSULTANTS AND EXPERTS), AND HOLD PURCHASER, AND
PURCHASER'S OFFICERS, AGENTS, EMPLOYEES, ATTORNEYS, DIRECTORS, SHAREHOLDERS,
AFFILIATES AND MAJORITY OWNED OR CONTROLLED SUBSIDIARIES AND BRANCHES (SO LONG
AS SUCH ENTITIES REMAIN OWNED OR CONTROLLED BY PURCHASER) AND THEIR HEIRS, LEGAL
REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY "PURCHASER'S INDEMNIFIED
PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL LIENS, DAMAGES, LOSSES,
LIABILITIES, OBLIGATIONS, PENALTIES, ASSESSMENTS, CITATIONS, DIRECTIVES, CLAIMS,
LITIGATION, DEMANDS, JUDGMENTS, SUITS, PROCEEDINGS, COSTS, AND EXPENSES
(COLLECTIVELY "CLAIMS") OF ANY KIND OR OF ANY NATURE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS', CONSULTANTS' AND EXPERTS' FEES AND
DISBURSEMENTS ACTUALLY INCURRED IN INVESTIGATING, DEFENDING, OR SETTLING ANY
SUCH CLAIMS) WHICH MAY AT ANY TIME BE IMPOSED UPON, INCURRED BY OR ASSERTED OR
AWARDED AGAINST ANY OF PURCHASER'S INDEMNIFIED PARTIES OR THE PROPERTY, AND
ARISING DIRECTLY OR INDIRECTLY FROM OR OUT OF: (A) THE PRESENCE, ON OR BEFORE
THE COMPLETION DATE, BUT NOT BEFORE COMMENCEMENT OF THE VENDOR'S OWNERSHIP OF
THE PROPERTY, OF ANY HAZARDOUS SUBSTANCE ON, IN, OR UNDER, ALL OR ANY PORTION OF
THE PROPERTY, OR THE RELEASE OR THREAT OF RELEASE AFTER THE CLOSING OF ANY SUCH
PRE-COMPLETION DATE HAZARDOUS SUBSTANCE FROM OR ON THE PROPERTY OR ANY
SURROUNDING AREA, PROVIDED THAT THE POST- COMPLETION DATE RELEASE OF SUCH
HAZARDOUS SUBSTANCE WAS NOT CAUSED BY PURCHASER'S NEGLIGENCE OR INTENTIONAL
CONDUCT; (B) THE VIOLATION, PRIOR TO THE COMPLETION DATE, OF ANY ENVIRONMENTAL
LAW BY VENDOR RELATING TO OR AFFECTING OR THREATENING TO AFFECT THE PROPERTY; OR
(C) THE FAILURE BY VENDOR TO COMPLY FULLY WITH THE TERMS AND CONDITIONS OF THIS
CLAUSE 7; INCLUDING, WITHOUT LIMITATION, THE COST OF ASSESSMENT, CONTAINMENT,
REMEDIATION AND/OR REMOVAL OF ANY AND ALL HAZARDOUS SUBSTANCE ON ALL OR ANY
PORTION OF THE PROPERTY ON OR BEFORE THE COMPLETION DATE AND INCLUDING BUT NOT
LIMITED TO ANY CLAIMS BASED ON THE STRICT LIABILITY, SOLE OR CONCURRENT
NEGLIGENCE OR
10
INTENTIONAL ACTS OF ANY OF PURCHASER'S INDEMNIFIED PARTIES, EXCEPTING RELEASES
TO THE EXTENT OCCURRING AS A RESULT OF THE ACTS OR OMISSION OF ANY OF
PURCHASER'S INDEMNIFIED PARTIES AS A TENANT UNDER THE LEASE AGREEMENT WHERE THE
VENDOR WAS THE LANDLORD. THE VENDOR'S OBLIGATIONS UNDER THIS CLAUSE 7 WITH
RESPECT TO ANY OF PURCHASER'S INDEMNIFIED PARTIES OR ANY CLAIM ARE CONTINGENT
ON: (i) ANY OF PURCHASER'S INDEMNIFIED PARTIES NOTIFYING THE VENDOR IN WRITING
WITHIN FORTY-FIVE (45) DAYS OF ANY SUCH PARTY'S KNOWLEDGE OF ANY CLAIM; HOWEVER,
IF THE VENDOR IS NOT NOTIFIED WITHIN SUCH PERIOD, THE VENDOR'S INDEMNITY
OBLIGATIONS UNDER THIS CLAUSE 7 REMAIN INTACT EXCEPT TO THE EXTENT THE VENDOR IS
PREJUDICED BY THE DELAYED NOTIFICATION; (ii) THE VENDOR BEING AFFORDED CONTROL
OF THE DEFENSE AND ALL RELATED SETTLEMENT NEGOTIATIONS (PROVIDED THAT PURCHASER
MUST APPROVE ANY SETTLEMENT, WHICH MAY NOT BE UNREASONABLY WITHHELD, DELAYED OR