LIABLE FOR, ASSUME, PERFORM AND DISCHARGE ALL OF THE OBLIGATIONS AND
LIABILITIES OF SELLER, KNOWN OR UNKNOWN, WITH RESPECT TO THE ASSETS, REGARDLESS
OF WHETHER SUCH OBLIGATIONS OR LIABILITIES AROSE PRIOR TO THE EFFECTIVE TIME, AT
THE EFFECTIVE TIME OR AFTER THE EFFECTIVE TIME. SAID OBLIGATIONS AND LIABILITIES
ARE REFERRED TO AS THE "ASSUMED OBLIGATIONS." PURCHASER, HOWEVER, DOES NOT
ASSUME ANY OBLIGATIONS OR LIABILITIES OF SELLER TO THE EXTENT THAT THEY ARE
ATTRIBUTABLE TO OR ARISE OUT OF THE:
(I)
EXCLUDED ASSETS; OR
(II)
CLAIMS FOR WRONGFUL DEATH AND/OR PERSONAL INJURY RELATED TO THE
PROPERTIES WHICH CLAIMS AROSE BEFORE THE EFFECTIVE TIME; OR
(III)
CONTINUING RESPONSIBILITY OF THE SELLER UNDER SECTION 11.2 OR
MATTERS FOR WHICH SELLER IS REQUIRED TO INDEMNIFY PURCHASER UNDER THIS ARTICLE
11.
(B)
PURCHASER SHALL INDEMNIFY, COVENANT NOT TO SUE, SAVE, RELEASE,
DEFEND, DISCHARGE AND HOLD SELLER INDEMNITEES HARMLESS (COLLECTIVELY,
"INDEMNIFY") FROM AND AGAINST DAMAGES, INCURRED OR SUFFERED BY SELLER
INDEMNITEES THAT ARE CAUSED BY, OR ARISE OUT OF OR RESULT FROM:
(I)
THE ASSUMED OBLIGATIONS; OR
(II)
THE OWNERSHIP, USE OR OPERATION OF THE ASSETS AT AND AFTER THE
EFFECTIVE TIME; OR
40
(III)
ENVIRONMENTAL LIABILITIES; OR
(IV)
ACCESS TO THE ASSETS IN SECTION 7.7; OR
(V)
PREFERENTIAL RIGHTS TO PURCHASE IN SECTION 7.9(B)(I); OR
(VI)
PURCHASER'S OBLIGATIONS UNDER THIS AGREEMENT; OR
(VII)
THE BREACH OF ANY OF PURCHASER'S COVENANTS OR AGREEMENTS CONTAINED
IN ARTICLE 7 OF THIS AGREEMENT, SAVE AND EXCEPT FOR COVENANTS OR AGREEMENTS
CONTAINED IN SECTION 7.1 (ACCESS) AND SECTION 7.9(B)(I)(RELATED TO PREFERENTIAL
RIGHTS TO PURCHASE) WHICH ARE COVERED ABOVE; OR
(VIII)
THE BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY PURCHASER IN
ARTICLE 6 OF THIS AGREEMENT OR IN THE CERTIFICATE DELIVERED BY PURCHASER AT
CLOSING PURSUANT TO SECTION 9.3(C)(CERTIFICATE OF CORPORATE OFFICER OF
PURCHASER); OR
(IX)
TO EXTENT ATTRIBUTABLE TO PURCHASER'S PROPORTIONATE INTEREST IN
THE ASSETS, THE MATTERS SET FORTH ON EXHIBIT 5.7 FROM THE EFFECTIVE TIME; OR
(X)
THE LITIGATION EXPENSES (DEFINED BELOW).
THE INDEMNIFICATION OBLIGATIONS OF PURCHASER IN THIS PARAGRAPH SHALL BE REFERRED
TO HEREIN AS "PURCHASER'S INDEMNIFICATION OBLIGATIONS."
PURCHASER SHALL INDEMNIFY SELLER INDEMNITEES AGAINST DAMAGES FOR MATTERS COVERED
BY PURCHASER'S INDEMNIFICATION OBLIGATIONS ARISING OUT AND RESULTING FROM:
1.
THE NEGLIGENCE OF SELLER, WHETHER THE NEGLIGENCE IS ORDINARY,
ACTIVE, PASSIVE, JOINT, CONCURRENT OR SOLE BUT EXCLUDING CLAIMS BASED ON GROSS
NEGLIGENCE AND WILLFUL MISCONDUCT; AND
2.
THE STRICT LIABILITY OF SELLER, BUT EXCLUDING CLAIMS BASED ON THE
GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF SELLER.
COSTS OF ATTORNEY FEES, COSTS OF COURT, EXPENSES FOR HIRING INVESTIGATORS AND
INVESTIGATING, DEFENDING LITIGATION, PROSECUTING
41
LITIGATION, HIRING EXPERT WITNESSES, COSTS OF SETTLEMENT AND ANY AND ALL COSTS
AND EXPENSES PERTAINING TO ANY LITIGATION SHALL COLLECTIVELY BE REFERRED TO AS
THE "LITIGATION EXPENSES."
PURCHASER SHALL INDEMNIFY SELLER INDEMNITEES FROM
AND AGAINST ALL LITIGATION EXPENSES ARISING FROM, BASED UPON, RELATED TO OR IN
ANY WAY CONNECTED WITH PURCHASER'S INDEMNIFICATION OBLIGATIONS
IT IS UNDERSTOOD AND AGREED THAT PURCHASER'S OBLIGATION TO INDEMNIFY SELLER
INDEMNITEES FROM AND AGAINST THE LITIGATION EXPENSES IS (I) SEPARATE AND