BUYER FURTHER
ACKNOWLEDGES THAT BUYER IS AWARE THAT THE PROVISIONS OF THIS AGREEMENT,
INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION
6.03, LIMIT, RESTRICT AND MAY FORECLOSE BUYER'S ABILITY TO PURSUE ANY REMEDY OR
CAUSE OF ACTION AGAINST SELLER IN CONNECTION WITH THIS TRANSACTION OR ANY MATTER
AFFECTING THE PROPERTY, OTHER THAN SELLER'S REPRESENTATIONS.
Notwithstanding the foregoing or any provision hereof to the contrary, the
waiver and release set forth in THIS Section 6.03 by Buyer shall not apply to
any claim with respect to any fraudulent or PROVEN intentional misrepresentation
by Seller.
FURTHER NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY: (A) BUYER
SHALL HAVE THE RIGHT TO DEFEND GOVERNMENT AND THIRD-PARTY CLAIMS BY ALLEGING
THAT SELLER (OR SOMEONE ACTING ON SELLER'S BEHALF), NOT BUYER, IS LIABLE FOR
SUCH CLAIMS AND BUYER HAS NO OBLIGATION TO INDEMNIFY SELLER FOR GOVERNMENTAL OR
THIRD PARTY CLAIMS ASSERTED BEFORE OR AFTER THE CLOSING AS A RESULT OF ANY ACT
OR OMISSION TAKEN OR FAILED TO BE TAKEN BY OR ON SELLER'S BEHALF PRIOR TO THE
CLOSING; AND (B) THE PROVISIONS SET FORTH IN SECTION 6.03 SHALL NOT APPLY TO
THIRD-PARTY TORT CLAIMS RELATING TO THE PROPERTY AND OCCURRING DURING SELLER'S
OWNERSHIP OF THE PROPERTY. ADDITIONALLY, SELLER AND BUYER HEREBY ACKNOWLEDGE AND
AGREE THAT (I) THE PROVISIONS SET FORTH IN SECTION 6.03 are NOT INTENDED TO BE
AND SHALL NOT BE CONSTRUED AS A WAIVER OF SIMILAR CLAIMS AGAINST ANY OF SELLER'S
PREDECESSORS-IN-TITLE WITH RESPECT TO THE PROPERTY OR THE PROJECT
("PREDECESSORS"), OR ANY SUCH PREDECESSOR'S OFFICERS, MEMBERS, MANAGERS,
DIRECTORS, PARTNERS, EMPLOYEES, AGENTS OR CONTRACTORS, OR ANY OTHER PERSON
ACTING ON BEHALF OF ANY SUCH PREDECESSORS, AND (II) IF ANY THIRD PARTY,
INCLUDING, WITHOUT LIMITATION, ANY GOVERNMENTAL ENTITY OR AGENCY, SHALL THREATEN
OR FILE ANY CLAIM OR ACTION FOR DAMAGES, CLEAN-UP, OR OTHERWISE, AGAINST BUYER
OR ANY OF ITS AFFILIATES WITH RESPECT TO THE PROPERTY OR THE PROJECT WITH
RESPECT TO MATTERS OCCURING PRIOR TO CLOSING FOR WHICH SELLER HAS ANY LIABILITY
OR RESPONSIBILITY, BUYER SHALL HAVE THE RIGHT TO INTERPLEAD, CROSS CLAIM OR
OTHERWISE BRING SELLER INTO SUCH SUIT OR ACTION TO ADDRESS THE CLAIMS OF SUCH
THIRD PARTY.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT.
6.04
Hazardous Materials. Except to the extent of Seller's
Representations, and further subject to the final two (2) paragraphs of Section
6.03 above, Buyer waives any rights or claims it may have against Seller or any
Seller Affiliates in connection with the presence of, or any loss, cost or
damage associated with, Hazardous Materials (as hereinafter defined) in, on,
above or beneath any Real Property or emanating therefrom, except as expressly
provided in this Agreement. Except to the extent of Seller's Representations,
and further subject to the final two (2) paragraphs of Section 6.03 above, if at
any time after the applicable Closing, any third party or any governmental
agency seeks to hold Buyer responsible for any loss, cost or damage arising from
any Hazardous Materials in,