Definition of Migrated Hazardous Substance


Migrated Hazardous Substance means (i) any Hazardous Substance which is an Analyzed Item and which is a part of the Existing Condition which has migrated from or from under the Existing Terminal Facility or an Added Parcel (as the case may be) in, on, or under property at the Port Newark Facility other than the Existing 12 Terminal Facility or an Added Parcel (as the case may be) if and only if such migration was not a result in whole or in part from the use and occupancy of the Existing Terminal Facility or an Added Parcel (as the case may be) by Lessee, Lessee' Representative, or by any affiliated company of Lessee, or the perfoiniance of Lessee's Construction Work, the Phase 1 Development Work, the Phase 2 Development Work, the Phase 3 Development Work, the Phase 4 Development Work, the Starboard Street Property Development 'Work, the Marsh Street Development Work or the Waterfront Shimizaki Property Development Work, or the acts or omissions of Lessee or Lessee's Representative, or by any Affiliate of Lessee, and (ii) any Hazardous Substance which has migrated in, on, or under the Existing Terminal Facility or an Added Parcel (as the case may be) from outside of the Existing Terminal Facility or an Added Parcel (as the case may be) if and only if such migration was not a result in whole or in part from the use and occupancy of the Existing Terminal Facility or an Added Parcel (as the case may be) by Lessee, Lessee's Representative, or by any Affiliate of Lessee, or the performance of Lessee's Construction Work, the Phase I Development Work, the Phase II Development Work, the Phase III Development Work, the Phase IV Development Work, the Starboard Street Property Development Work, the Marsh Street Development Work or the Waterfront Shimizaki Property Development Work, or the acts or omissions of Lessee or Lessee's Representative, or with the permission of an Affiliate of Lessee. Notwithstanding the foregoing, Lessee shall be responsible for such Migrated Hazardous Substance if any clean -up, remediation or other response action, or indemnification or other action under this Section 1.3 is required with respect to such Environmental Damage as a result of any Exacerbation by Lessee or Lessee's Representative.


Migrated Hazardous Substance means (i) any Hazardous Substance that has migrated onto the Premises from outside the Premises and (ii) any Hazardous Substance that has migrated onto the Premises from outside of the Premises, provided, however, a Migrated Hazardous Substance shall in no event include any Hazardous Substance that has migrated as a result of or in connection with the any act or omission, including without limitation non-negligent acts and omissions, of the Lessee or of Persons other than the Lessee which use, occupy or are on the Premises with the consent of the Lessee.