AND ALL CLAIMS OR
CAUSES OF ACTION BASED THEREON. FOR PURPOSES OF THIS AGREEMENT, THE TERM
"HAZARDOUS MATERIAL" SHALL MEAN ANY SUBSTANCE, CHEMICAL, WASTE OR MATERIAL THAT
IS OR BECOMES REGULATED BY ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AUTHORITY
BECAUSE OF ITS TOXICITY, INFECTIOUSNESS, RADIOACTIVITY, EXPLOSIVENESS,
IGNITABILITY, CORROSIVENESS OR REACTIVITY, INCLUDING, WITHOUT LIMITATION,
ASBESTOS OR ASBESTOS-CONTAINING MATERIAL, THE GROUP OF COMPOUNDS KNOWN AS
POLYCHLORINATED BIPHENYLS, FLAMMABLE
29
EXPLOSIVES, OIL, PETROLEUM OR ANY REFINED PETROLEUM PRODUCT. IT IS THE INTENTION
OF THE PARTIES THAT THE FOREGOING RELEASE SHALL BE EFFECTIVE WITH RESPECT TO ALL
MATTERS PAST AND PRESENT, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED. BUYER
EXPRESSLY ACKNOWLEDGES AND AGREES THAT FACTUAL MATTERS NOW UNKNOWN TO IT HAVE
GIVEN OR HEREAFTER MAY GIVE RISE TO LOSSES, DAMAGES, LIABILITIES, COSTS AND/OR
EXPENSES THAT PRESENTLY ARE UNKNOWN, UNANTICIPATED AND UNEXPECTED. SUBJECT TO
AND EXCEPT FOR THE RELEASE CARVEOUTS, BUYER, FOR ITSELF AND ITS
SUCCESSORS-IN-INTEREST, HEREBY RELEASES EACH SELLER PARTY FROM, AND WAIVES
ALLLIABILITY AGAINST SUCH SELLER PARTY FOR ANY AND ALL STATEMENTS OR OPINIONS
NOW OR HEREAFTER MADE, OR INFORMATION OR MATERIALS NOW OR HEREAFTER MADE
AVAILABLE, BY ANY SELLER PARTY TO BUYER OR TO BUYER'S AGENTS OR REPRESENTATIVES.
WITHOUT LIMITING THE GENERALITY OF THE ABOVE, BUYER EXPRESSLY ACKNOWLEDGES AND
AGREES THAT IT IS AWARE OF, AND THAT IT ASSUMES THE SOLE OBLIGATION TO INFORM
ITSELF WITH RESPECT TO, THE MATTERS SET FORTH IN SECTION 9(f) OF THIS AGREEMENT.
BUYER FURTHER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE WAIVERS, RELEASES AND
INDEMNITIES SET FORTH IN THIS AGREEMENT HAVE BEEN NEGOTIATED, BARGAINED FOR AND
AGREED UPON IN LIGHT OF SUCH FACTS AND THAT BUYER NEVERTHELESS HEREBY INTENDS TO
RELEASE, DISCHARGE AND ACQUIT ALL SELLER PARTIES FROM ALL SUCH LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES.
(b)
Third Party Claims. Notwithstanding anything to the contrary contained
herein, this Section 16 does not limit or affect in any way any indemnification
provision contained in this Agreement or in any document or instrument executed
by Seller pursuant to this Agreement, nor shall this Section 16 constitute a
waiver or release of any reimbursement, indemnity or contribution obligation of
Seller or any Seller Party to Buyer in connection with any liability, claim or
cause of action which relates to the Property and is asserted by a governmental
agency or other third party and which arose or otherwise relates to the period
prior to the Closing Date (such liabilities, claims or causes of action, "Third
Party Claims"). If any Third Party Claim is asserted by any governmental agency
or other third party with respect to the Property as it existed at or prior to
the Closing Date, Buyer shall be free to assert any and all claims and
liabilities against Seller arising out of such Third Party Claim being asserted
by such governmental agency or other third party.
THE PROVISIONS OF THIS SECTION 16 SHALL SURVIVE THE CLOSING.
TO EVIDENCE THEIR AWARENESS AND AGREEMENT TO BE BOUND BY THE TERMS AND
PROVISIONS OF THIS SECTION 16, BUYER AND SELLER HAVE SEPARATELY