damages and the actual amount of Buyer's costs
in undertaking to conduct due diligence and related matters in connection with
the prospective purchase of the Property including, without limitation,
environmental and engineering consultants' and attorneys' fees, or (ii) continue
this Agreement pending Buyer's action for specific performance hereunder
provided appropriate proceedings are promptly commenced by Buyer and prosecuted
with diligence.
12.
Buyer's Release and Indemnification of Seller.
12.1
Release. SUBJECT TO THE PROVISIONS OF THIS AGREEMENT AND THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT AND CLOSING
DOCUMENTS, EFFECTIVE AS OF CLOSING, AND AS A MATERIAL PART OF THE CONSIDERATION
TO SELLER FOR ENTERING INTO THIS AGREEMENT AND SELLING THE PROPERTY TO BUYER,
BUYER ON BEHALF OF ITSELF AND ITS SHAREHOLDERS, MEMBERS, INVESTORS OR PARTNERS
OF EACH OF THEM AND ANY PERMITTED ASSIGNEES OF BUYER HEREUNDER AND ITS
SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "BUYER AFFILIATED PARTIES") WAIVES ITS
RIGHT TO RECOVER FROM, AND FOREVER RELEASES AND DISCHARGES, SELLER AND THE
SELLER RELATED PARTIES FROM ANY AND ALL CLAIMS, OBLIGATIONS, ACTIONS, CAUSES OF
ACTION, SUITS, DEBTS, LIENS, LIABILITIES, INJURIES, DAMAGES, JUDGMENTS, LOSSES,
DEMANDS, ORDERS, PENALTIES, SETTLEMENTS, COSTS, PENALTIES, FORFEITURES AND
EXPENSES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES AND COSTS, AND ALL LITIGATION, MEDIATION, ARBITRATION AND OTHER
DISPUTE RESOLUTION COSTS AND EXPENSES), AND EXPENSES OF ENFORCING ANY
INDEMNIFICATION, DEFENSE OR HOLD HARMLESS OBLIGATIONS, AND REGARDLESS OF WHETHER
BASED ON TORT, CONTRACT, STATUTE, REGULATION, COMMON LAW, EQUITABLE PRINCIPLES
OR OTHERWISE.(COLLECTIVELY, "CLAIMS"), WHETHER DIRECT OR INDIRECT, KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN, FIXED OR CONTINGENT,
LIQUIDATED OR UNLIQUIDATED, OTHER THAN FOR MATERIAL BREACH OF SELLER'S
REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN AND THE CLOSING DOCUMENTS AND
SELLER'S EXPRESS OBLIGATIONS UNDER THIS AGREEMENT THAT ARE BASED DIRECTLY OR
INDIRECTLY ON, ARISE FROM OR IN CONNECTION WITH, OR ARE RELATED TO ANY FACTS,
MATTERS, CIRCUMSTANCES, CONDITIONS, OR DEFAULTS OF ALL OR ANY KIND RELATED TO,
ARISING FROM, OR BASED UPON THE PROPERTY, THE DILIGENCE MATERIALS, ANY OTHER
DOCUMENTS PROVIDED TO OR OBTAINED BY BUYER RELATING TO THE PROPERTY, INCLUDING,
WITHOUT LIMITATION AND BY WAY OF ILLUSTRATION ONLY:
-9-
(a)
ANY PAST, PRESENT OR FUTURE CONDITION OF THE PROPERTY, REGARDLESS OF
WHEN OCCURRING AND REGARDLESS OF WHETHER THE SAME WERE CAUSED IN WHOLE OR IN
PART BY SELLER AND/OR ANY SELLER RELATED PARTIES, INCLUDING, WITHOUT LIMITATION,
ANY LATENT OR PATENT DEFECTS IN OR TO THE PROPERTY OR ANY IMPROVEMENTS THERETO,
THE PROPERTY'S PROXIMITY TO ANY GEOLOGICAL HAZARD, OR THE PRESENCE OF HAZARDOUS
MATERIALS IN, ON, ABOUT OR UNDER THE PROPERTY, OR WHICH HAVE MIGRATED FROM
ADJACENT LANDS TO THE PROPERTY OR FROM THE PROPERTY TO ADJACENT LANDS, WHETHER
IN COMMON LAW OR UNDER ANY EXISTING OR HEREINAFTER ENACTED FEDERAL, STATE OR
LOCAL LAW, REGULATION, OR ORDINANCE, INCLUDING, WITHOUT LIMITATION, ANY
ENVIRONMENTAL LAWS, AND WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF SELLER OR
SELLER RELATED PARTIES;
(b)
ANY AND ALL STATEMENTS, REPRESENTATIONS, WARRANTIES, DETERMINATIONS,
CONCLUSIONS, ASSESSMENTS, ASSERTIONS OR ANY OTHER INFORMATION CONTAINED IN ANY
OF THE