to any Property, (ii) underground injection activities and waste
disposal; or (iii) necessary remediation, and the cost of such remediation, or
any control, assessment, or compliance with respect to any pollution or
contamination.
(b)
BUYER AGREES TO RELEASE, INDEMNIFY, DEFEND
AND HOLD HARMLESS SELLER AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE
DIRECTORS, MEMBERS, MANAGERS, GENERAL PARTNERS, OFFICERS, EMPLOYEES, AGENTS,
REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "SELLER
INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES,
COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND REASONABLE
ATTORNEYS' FEES) (COLLECTIVELY, "LOSSES") THAT ARE ATTRIBUTABLE TO (i) THE
ASSUMED OBLIGATIONS OR (ii) A BREACH BY BUYER OF ITS WARRANTIES, COVENANTS,
REPRESENTATIONS AND
7
AGREEMENTS HEREUNDER, IN EACH CASE WITHOUT REGARD TO THE SOLE, PARTIAL OR
CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OF THE
SELLER INDEMNIFIED PARTIES;
(c)
Seller and Buyer agree the indemnity
provisions contained in this Agreement are conspicuous, that the same comply
with the express negligence test and that the parties intend to shift the risk
of liability as therein provided.
14.
After Closing, Seller and Buyer agree to
take such further actions and to execute, acknowledge and deliver such
additional documents and instruments as may be necessary or useful in carrying
out the purposes of this Agreement or of any document delivered pursuant hereto.
15.
IF THE CLOSING OCCURS AND WITHOUT LIMITING
BUYER'S OBLIGATIONS HEREUNDER, BUYER HEREBY ASSUMES AND SHALL BE RESPONSIBLE FOR
AND AGREES TO INDEMNIFY, RELEASE, DEFEND AND HOLD HARMLESS THE SELLER
INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES ATTRIBUTABLE TO DAMAGE
TO PROPERTY, INJURY TO OR DEATH OF PERSONS OR OTHER LIVING THINGS, NATURAL
RESOURCE DAMAGES, CERCLA RESPONSE COSTS, ENVIRONMENTAL REMEDIATION AND
RESTORATION COSTS, OR FINES OR PENALTIES (COLLECTIVELY, "CLAIMS") ARISING OUT OF
OR ATTRIBUTABLE TO, IN WHOLE OR IN PART, EITHER DIRECTLY OR INDIRECTLY, THE
CONDITION OR OPERATION OF THE PROPERTIES AT ANY TIME BEFORE, AT OR AFTER THE
EFFECTIVE DATE (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO ANY
CONDITION EXISTING ON, IN OR UNDER, OR RESULTING FROM OPERATION OF, THE
PROPERTIES AS OF THE EFFECTIVE DATE) THAT IS DETERMINED TO BE A RESULT OF OR
CAUSED IN WHOLE OR IN PART BY SELLER'S VIOLATION OF, FAILURE TO FULFILL DUTIES
IMPOSED BY OR INCURRENCE OF LIABILITY UNDER, ANY ENVIRONMENTAL LAWS (AS DEFINED
BELOW) OR UNDER ANY PRINCIPLE OF COMMON LAW RELATING TO DUTIES TO PROTECT OR NOT
UNDULY DISTURB HUMAN HEALTH OR ENVIRONMENTAL QUALITY.
As used herein, the term "Environmental Laws" shall mean any and all laws,
statutes, regulations, rules, orders, ordinances, permits, waivers, or
determinations of any federal, state or local governmental authority pertaining
to safety, health or conservation or protection of the environment, wildlife, or
natural reserves in effect in any and all jurisdictions in which the Properties
are located, including, without limitation, the Clean Air Act, as amended, the
Federal Water Pollution Control Act, as amended, the Safe Drinking Water Act, as
amended, the Comprehensive Environmental Response, Compensation and Liability
Act, as amended