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<br />and (t) regulations promulgated pursuant to said laws or any replacement
<br />thereof, or as similar terms are defined in the federal, state and local laws,
<br />statutes, regulations, orders or rules. Hazardous Materials shall also mean any
<br />and all other substances, materials and wastes which are, or in the future
<br />become regulated under applicable local, state or federal law for the protection of
<br />health or the environment, or which are classified as hazardous or toxic
<br />substances, materials or wastes, pollutants or contaminants, as defined, listed or
<br />regulated by any federal, state or local law, regulation or order or by common law
<br />decision, including, without limitation, (i) trichloroethylene, tetrachloroloethylene,
<br />perchloroethylene and other chlorinated solvents, (ii) any petroleum products or
<br />fractions thereof, (Iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable
<br />explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste.
<br />
<br />22.4 Lessor's Richl to Perform Tests. At any time prior to the expiration of the Lease
<br />Term, Lessor shall have the right to enter upon the Premises in order to conduct
<br />tests of water and soil and to deliver to Lessee the results of such tests to
<br />demonstrate that levels of any Hazardous Materials in excess of permissible
<br />levels has occurred as a result of Lessee's use of the Premises. Lessee shall be
<br />solely responsible for and shall indemnify, protect, defend and hold Lessor
<br />harmless from and against all claims, costs and liabilities including actual
<br />attorneys' fees and costs arising out of or in connection with any removal,
<br />remediation, clean up, restoration and materials required hereunder to return the
<br />Premises and any other property of whatever nature to their condition existing
<br />prior to the appearance of the Hazardous Materials. The testing shall be at
<br />Lessee's expense if Lessor has a reasonable basis for suspecting and confirms
<br />the presence of Hazardous Materials in the soil or surface or groundwater in, on,
<br />under, or about the Premises, which has been caused by or resulted from the
<br />activities of Lessee, its agents, employees, contractors or invitees.
<br />
<br />22.5 Hazardous Materials Indemnitv. Lessee shall indemnify, defend (by counsel
<br />reasonably acceptable to Lessor), protect and hold Lessor harmless from and
<br />against any and all claims, liabilities, penalties, forfeitures, losses and/or
<br />expenses, including, without limitation, diminution in value of the Premises or
<br />Project, damages for the loss or restriction on use of the rentable or usable
<br />space or of any amenity of the Premises or Project, damages arising from any
<br />adverse impact or marketing of the Premises or Project and sums paid in
<br />settlement of claims, response costs, cleanup costs, site assessment costs,
<br />attorneys' fees, consultant and expert fees, judgments, administrative rulings or
<br />orders, fines, costs of death of or Injury to any person or damage to any property
<br />whatsoever (including, without limitation, groundwater, sewer systems and
<br />atmosphere), arising from, or caused or resulting, either prior to or during the
<br />Lease Term, in whole or in part, directly or indirectly, by the presence or
<br />discharge in, on, under or about the Premises by Lessee, Lessee's agents,
<br />employees, licensees or invitees or at Lessee's direction, of Hazardous Material,
<br />or by Lessee's failure to comply with any Hazardous Materials Law, whether
<br />knowingly or by strict liability. Lessee's indemnification obligations shall include,
<br />without limitation, and whether foreseeable or unforeseeable, all costs of any
<br />required or necessary Hazardous Materials management plan, investigation,
<br />repairs, cleanup, or detoxification or decontamination of the Premises or Project,
<br />and the presence and implementation of any closure, remedial action or other
<br />required plans, and shall survive the expiration of or early termination of the
<br />
<br />Atty/Agrl2008.033 12
<br />050508
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