discussed their contents with
the independent contractors who prepared or issued each of them.
OWNER JV
accordingly agrees to look solely to the preparer of the Survey and the Title
Company for any claim arising out of or in connection with such instruments and
hereby releases Hersha Owner, Hersha Lessee, the Hersha Members, Hotel Manager
and their respective Affiliates from any such claim (except for any claim that
Hersha Owner agrees to cure as set forth in this Agreement).
Notwithstanding
the foregoing, nothing herein is intended to limit the liability of Hersha
Owner, Hersha Lessee or any Hersha Member for any breach of a covenant or other
undertaking set forth in this Agreement or in any Conveyance Document.
(b) EXCEPT AS EXPRESSLY SET FORTH HEREIN, AS OF THE CLOSE OF ESCROW, OWNER JV
HEREBY IRREVOCABLY AND ABSOLUTELY WAIVES ITS RIGHT TO RECOVER FROM, AND FOREVER
RELEASES AND DISCHARGES, AND COVENANTS NOT TO FILE OR OTHERWISE PURSUE ANY LEGAL
ACTION AGAINST, HERSHA OWNER, HERSHA LESSEE OR THEIR RESPECTIVE AFFILIATES OR
ANY DIRECT OR INDIRECT PARTNER, MEMBER, TRUSTEE, DIRECTOR, SHAREHOLDER,
CONTROLLING PERSON, OFFICER, ATTORNEY, EMPLOYEE, AGENT OR BROKER OF ANY OF THE
FOREGOING, AND ANY OF THEIR RESPECTIVE HEIRS, SUCCESSORS, PERSONAL
REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, THE "RELEASED PARTIES") WITH RESPECT
TO ANY AND ALL SUITS, ACTIONS, PROCEEDINGS, INVESTIGATIONS, DEMANDS, CLAIMS,
LIABILITIES, FINES, PENALTIES, LIENS, JUDGMENTS, LOSSES, INJURIES, DAMAGES,
SETTLEMENT EXPENSES OR COSTS OF WHATEVER KIND OR NATURE, WHETHER DIRECT OR
INDIRECT, KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE (INCLUDING ANY ACTION OR
PROCEEDING BROUGHT OR THREATENED OR ORDERED BY ANY GOVERNMENTAL AUTHORITY), IN
ADDITION TO ASSOCIATED ATTORNEYS' AND EXPERTS' FEES AND EXPENSES, AND
INVESTIGATION AND REMEDIATION COSTS THAT MAY ARISE ON ACCOUNT OF OR IN ANY WAY
BE CONNECTED WITH THE PROPERTY OR ANY PORTION THEREOF (COLLECTIVELY, "CLAIMS")
INCLUDING, WITHOUT LIMITATION, THE PHYSICAL, ENVIRONMENTAL AND STRUCTURAL
CONDITION OF THE PROPERTY OR ANY LAW OR REGULATION APPLICABLE THERETO, OR
INCLUDING ANY OTHER MATTER RELATING TO THE USE, PRESENCE, DISCHARGE OR RELEASE
OF HAZARDOUS MATERIALS ON, UNDER, IN, ABOVE
10
OR ABOUT THE PROPERTY.
THIS WAIVER AND RELEASE SHALL BE BINDING UPON OWNER JV,
ANY SUBSEQUENT OWNER JV AND ANY AFFILIATE, ANY DIRECT OR INDIRECT PARTNER,
MEMBER, TRUSTEE, DIRECTOR, SHAREHOLDER, CONTROLLING PERSON, OFFICER, ATTORNEY,
EMPLOYEE, AGENT OR BROKER OF ANY OF THE FOREGOING, AND ANY OF THEIR RESPECTIVE
HEIRS, SUCCESSORS, PERSONAL REPRESENTATIVES AND ASSIGNS.
IN ADDITION, OWNER JV
HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS, AND FOREVER RELEASES, EACH
OF THE RELEASED PARTIES FROM AND AGAINST ANY CLAIMS TO THE EXTENT RELATING TO
ANY HAZARDOUS MATERIALS THAT MAY BE PLACED, LOCATED OR RELEASED ON, AT, UNDER OR
FROM THE PROPERTY BY OWNER JV AFTER THE CLOSING DATE.
FOR THE AVOIDANCE OF
DOUBT, NOTHING HEREIN IS INTENDED TO RELEASE ANY PERSON OR ENTITY WITH REGARD TO
A BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN ANY CONVEYANCE DOCUMENT.
For purposes of this Agreement, the term "Hazardous Materials" means any
substance, chemical, compound, product, solid, gas, liquid, waste,