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<br />satisfactory to Agency prior to entry onto the Property for such purpose. Except as otherwise
<br />agreed upon by Agency in writing, Developer's inspection, examination, survey and review of
<br />the Property shall be at Developer's sole expense. Developer shall provide Agency with copies
<br />of all reports and test results promptly following completion of such reports and testing. Except
<br />as otherwise agreed upon by Agency in writing, Developer shall repair, restore and return the
<br />Property and Improvements to their condition immediately preceding Developer's entry thereon
<br />at Developer's sole expense. Developer shall at all times keep the Property free and clear of all
<br />liens and encumbrances affecting title to the Property. Without limiting any other indemnity
<br />provisions set forth in this Agreement, Developer shall indemnify, defend (with counsel
<br />approved by Agency) and hold City and Agency and their respective elected and appointed
<br />officers, officials, employees, agents and representatives (all ofthe foregoing, collectively
<br />hereinafter the "Indemnitees") harmless from and against all liability, loss, cost, claim,
<br />demand, action, suit, legal or administrative proceeding, penalty, deficiency, fine, damage and
<br />expense (including, without limitation, reasonable attorney's fees and costs oflitigation) (all of
<br />the foregoing, collectively hereinafter "Claims") resulting from or arising in connection with
<br />entry upon the Property by Developer or Developer's agents, employees, consultants,
<br />contractors or subcontractors pursuant to this Section 4.1. Developer's indemnification
<br />obligations set forth in this Section 4.1 shall survive the Close of Escrow and the termination of
<br />this Agreement.
<br />
<br />4.2 AS-IS Lease. Developer acknowledges and agrees that: (i) prior to the Closing Date, in
<br />Developer's discretion, Developer shall inspect the Property and the improvements located
<br />thereon, and shall examine the legal, environmental, zoning, land use, seismic, title, survey and
<br />physical characteristics and condition thereof; (ii) by leasing the Property, Developer shall be
<br />deemed to have approved of all such characteristics and conditions; (iii) the Property and the
<br />improvements thereon are to be leased to, and accepted by Developer in their condition as of
<br />the date of commencement of the Ground Lease "AS IS," "WHERE IS" AND WITH ALL
<br />FAULTS with no warranty expressed or implied regarding the condition of the soil, its geology,
<br />or the presence of known or unknown faults or Hazardous Materials (except to the extent'that
<br />the Agency is aware of but does not disclose such conditions), and no patent or latent defect or
<br />deficiency in the condition of the Property or the improvements thereon whether or not known
<br />or discovered, shall affect the rights of either Agency or Developer hereunder. Developer shall
<br />rely solely upon its own independent investigation concerning the physical condition ofthe
<br />Property and its compliance with applicable statutes, ordinances, rules and regulations. Agency
<br />shall have no responsibility for site preparation, demolition, or any other removal or
<br />replacement of improvements on the Property.
<br />
<br />If following commencement of the term of the Ground Lease, the condition of the Property is
<br />not in all respects entirely suitable for the uses to which the Property will be put pursuant to this
<br />Agreement, then it shall be the sole responsibility and obligation of Developer to correct any
<br />soil, subsurface or structural conditions, reconstruct any improvements, and otherwise put the
<br />Property in a condition suitable for the Project to be developed pursuant to this Agreement.
<br />The Developer hereby waives any right to seek reimbursement from the Agency for costs
<br />Developer incurs in connection with the correction of any physical condition on the Property
<br />except to the extent such costs are related to Hazardous Materials or other conditions known to
<br />Agency but not disclosed to Developer.
<br />
<br />803698-6
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