(ii) BUYER'S AGREEMENT TO RELEASE, ACQUIT AND
DISCHARGE SELLER AS SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT,
NOTWITHSTANDING THE EXISTENCE OR DISCOVERY OF ANY SUCH DIFFERENT OR ADDITIONAL
FACTS, AND (iii) BUYER KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL RIGHTS,
BENEFITS AND PRIVILEGES TO THE FULLEST EXTENT PERMISSIBLE UNDER ANY FEDERAL,
STATE, LOCAL, OR OTHER LAWS WHICH DO OR WOULD NEGATIVELY AFFECT VALIDITY OR
ENFORCEABILITY OF ALL OR PART OF THE RELEASES SET FORTH IN THIS AGREEMENT.
BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UPON THE CONSUMMATION OF THE CLOSING,
SELLER SHALL BE DEEMED TO HAVE SATISFIED AND FULFILLED ALL OF SELLER'S
COVENANTS, INDEMNITIES, AND OBLIGATIONS CONTAINED IN THIS AGREEMENT AND ANY
DOCUMENTS EXECUTED BY SELLER FOR THE BENEFIT OF BUYER IN CONNECTION WITH THE
CLOSING (OTHER THAN SUCH OBLIGATIONS, IF ANY, WHICH ARE EXPRESSLY CONTEMPLATED
HEREIN TO BE PERFORMED BY SELLER FOLLOWING THE CLOSING), AND SELLER SHALL HAVE
NO FURTHER LIABILITY TO BUYER OR OTHERWISE WITH RESPECT TO THIS AGREEMENT, THE
TRANSFERS CONTEMPLATED HEREBY, OR ANY DOCUMENTS DELIVERED PURSUANT HERETO,
EXCEPT TO THE EXTENT OF ANY OBLIGATION OR LIABILITY SELLER MAY HAVE UNDER THIS
AGREEMENT FOR A BREACH OF SELLER'S REPRESENTATIONS AND WARRANTIES AS TO WHICH
SELLER'S LIABILITY, IF ANY, SHALL BE LIMITED AS PROVIDED IN SECTION 4.4 OF THIS
AGREEMENT. THE PROVISIONS OF THIS SECTION, INCLUDING, WITHOUT LIMITATION THE
WAIVER AND RELEASE CONTAINED HEREIN, SHALL BE DEEMED REAFFIRMED AT THE CLOSING
AND SHALL SURVIVE THE CLOSING (AND NOT BE MERGED THEREIN).
BUYER AGREES NEVER TO COMMENCE OR PROSECUTE, OR CONSPIRE OR COLLUDE WITH OTHERS
TO COMMENCE OR PROSECUTE, AGAINST SELLER, ITS PARTNERS, MEMBERS, PRINCIPALS,
AGENTS, REPRESENTATIVES, ATTORNEYS OR EMPLOYEES (OTHER THAN AGENTS, CONSULTANTS,
CONTRACTORS OR SUBCONTRACTORS OF SELLER AGAINST WHOM RECOURSE RIGHTS HAVE BEEN
EXPRESSLY ASSIGNED TO BUYER PURSUANT TO THE TERMS OF THIS AGREEMENT), ANY ACTION
OR OTHER PROCEEDING BASED UPON ANY CLAIM COVERED BY THIS RELEASE. THIS RELEASE
SHALL BE DEEMED REAFFIRMED AT THE CLOSING.
Buyer's Indemnification of Seller.
To the maximum extent permitted by law, irrespective of the active or passive
negligence of Seller, or any of Seller's agents, employees, officers, directors,
partners, members, parents, shareholders, or attorneys (other than those parties
against whom Seller expressly assigns recourse rights to Buyer pursuant to this
Agreement) (collectively, the "Seller Indemnified Parties"). Buyer agrees to,
and hereby does, indemnify and hold each of the Seller Indemnified Parties
harmless, and agrees to defend the Seller Indemnified Parties, from and against
any and all claims, demands, suits, actions, losses, damages, injuries,
judgments, costs and expenses, including reasonable attorneys' fees and costs,
including without limitation, future claims by any parties, in any manner
arising out of, caused by, or related to (i) Buyer's or its agents' or
employees' access or activities upon the Property, or any portion thereof, at
any time, (ii) any actions or activities related to any marketing, sale or
leasing of the Property, including without limitation, claims related to fraud
and/or misrepresentation by Buyer or any agent, employee, or salesperson of
Buyer; (iii) any work