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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 /> 16.4 Licensor's Riqht to Perform Tests. At any time prior to the expiration of the
<br /> License Term, Licensor shall have the right to enter upon the Premises in order
<br /> to conduct tests of water and soil and to deliver to Licensee the results of such
<br /> tests to demonstrate that levels of any Hazardous Materials in excess of
<br /> permissible levels has occurred as a result of Licensee's use of the Premises.
<br /> Licensee shall be solely responsible for and shall indemnify, protect, defend and
<br /> hold Licensor harmless from and against all claims, costs and liabilities including
<br /> actual 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 /> Licensee's expense if Licensor has a reasonable basis for suspecting and
<br /> confirms the presence of Hazardous Materials in the soil or surface or
<br /> groundwater in, on, under, or about the Premises, which has been caused by or
<br /> resulted from the activities of Licensee, its agents, employees, contractors or
<br /> invitees.
<br /> 16.5 Hazardous Materials Indemnity. Licensee shall indemnify, defend (by counsel
<br /> reasonably acceptable to Licensor), protect and hold Licensor 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 Toss 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 /> License Term, in whole or in part, directly or indirectly, by the presence or
<br /> discharge in, on, under or about the Premises by Licensee, Licensee's agents,
<br /> employees, licensees or invitees or at Licensee's direction, of Hazardous
<br /> Material, or by Licensee's failure to comply with any Hazardous Materials Law,
<br /> whether knowingly or by strict liability. Licensee's indemnification obligations
<br /> shall include, without limitation, and whether foreseeable or unforeseeable, all
<br /> costs of any required or necessary Hazardous Materials management plan,
<br /> investigation, repairs, cleanup, or detoxification or decontamination of the
<br /> Premises or Project, and the presence and implementation of any closure,
<br /> remedial action or other required plans, and shall survive the expiration of or
<br /> early termination of the License Term. For purposes of the indemnity provided
<br /> herein, any acts or omissions of Licensee or its employees, agents, customers,
<br /> sublicensees, assignees, contractors or subcontractors of Licensee (whether or
<br /> not they are negligent, intentional, willful or unlawful) shall be strictly attributable
<br /> to Licensee.
<br /> Atty /Agr /2011. 048 LIBRARY CAFE LICENSE 11
<br /> 051311
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