AND HOLD
HARMLESS SELLER, SELLER'S AFFILIATES, SELLER'S PARTNERS, OFFICERS, TENANTS,
AGENTS, CONTRACTORS AND EMPLOYEES, AND EACH OF THEIR SUCCESSORS AND ASSIGNS AND
THE PROPERTY FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LIABILITIES
AND EXPENSES WHATSOEVER (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS'
FEES) (COLLECTIVELY, "CLAIMS") RESULTING FROM BUYER'S ENTRY UPON THE PROPERTY
AND MAKING OF ANY TESTS OR STUDIES WITH RESPECT TO THE PROPERTY, INCLUDING ANY
AND ALL MECHANICS LIEN CLAIMS; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL BUYER
HAVE ANY OBLIGATIONS UNDER THIS SECTION 16.1(A) WITH RESPECT TO CLAIMS RESULTING
FROM BUYER'S DISCOVERY OF ANY PRE-EXISTING CONDITIONS.
16.1(B)
THE OBLIGATIONS SET FORTH IN SECTION 16.1(A) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
NOTHING IN SECTION 16.1(A) SHALL BE CONSTRUED TO (I) RESTRICT BUYER IN ITS
ORDINARY COURSE OF BUSINESS AS TENANT UNDER THE ZENITH LEASE FROM USING AND
ACCESSING THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THE ZENITH LEASE OR
(II) AMEND, MODIFY OR ALTER THE ZENITH LEASE.
16.2
ATTORNEYS' FEES.
IN THE EVENT OF ANY ACTION FOR BREACH OF OR TO
ENFORCE ANY PROVISION OR RIGHT UNDER THIS AGREEMENT, THE UNSUCCESSFUL PARTY IN
SUCH ACTION SHALL PAY TO THE SUCCESSFUL PARTY ALL COSTS AND EXPENSES INCLUDING,
BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES INCURRED BY THE SUCCESSFUL PARTY
IN CONNECTION WITH SUCH ACTION.
THE SUCCESSFUL PARTY SHALL BE THAT PARTY WHO,
IN LIGHT OF THE ISSUES LITIGATED AND THE COURT'S DECISION ON THOSE ISSUES, WAS
MORE
18
SUCCESSFUL IN THE ACTION.
THE PARTY WHO WAS MORE SUCCESSFUL NEED NOT BE
DETERMINED TO BE THE PARTY WHO RECOVERS A JUDGMENT IN THE ACTION.
16.3
FURTHER ASSURANCES.
BUYER AND SELLER AGREE THAT AT ANY TIME, OR
FROM TIME TO TIME AFTER THE EXECUTION OF THIS AGREEMENT, AND WHETHER BEFORE OR
AFTER THE CLOSE OF ESCROW, THEY WILL, UPON REQUEST OF THE OTHER, EXECUTE AND
DELIVER SUCH OTHER DOCUMENTS AND DO SUCH FURTHER ACTS AND THINGS AS SUCH OTHER
PARTY MAY REASONABLY REQUEST IN ORDER TO FULLY EFFECT THE PURPOSE OF THIS
AGREEMENT.
16.4
ENTIRE AGREEMENT.
THIS AGREEMENT IS THE ENTIRE AGREEMENT BETWEEN
BUYER AND SELLER WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND
SUPERSEDES ALL PRIOR AGREEMENTS BETWEEN BUYER AND SELLER WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT
SHALL NOT AMEND, MODIFY OR ALTER THE ZENITH LEASE.
16.5
MODIFICATIONS IN WRITING.
THIS AGREEMENT MAY NOT BE ALTERED,
AMENDED, CHANGED, TERMINATED OR MODIFIED IN ANY RESPECT OR PARTICULAR, UNLESS
THE SAME SHALL BE IN WRITING AND SIGNED BY THE PARTY TO BE CHARGED.
16.6
TIME OF THE ESSENCE.
TIME IS OF THE ESSENCE OF THIS AGREEMENT.
16.7
SUCCESSORS AND ASSIGNS.
NEITHER PARTY MAY ASSIGN THIS AGREEMENT
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER, AND ANY SUCH PROHIBITED
ASSIGNMENT SHALL BE VOID.
NO ASSIGNMENT PERMITTED UNDER THIS AGREEMENT SHALL
RELIEVE THE ASSIGNING PARTY OF ANY LIABILITY HEREUNDER, WHETHER ARISING BEFORE
OR AFTER THE DATE OF SUCH ASSIGNMENT.
SUBJECT TO THE FOREGOING, THIS AGREEMENT
SHALL