ANY DAMAGE TO THE REAL PROPERTY AND IMPROVEMENTS CAUSED BY ANY INSPECTION OR
EXAMINATION BY PURCHASER OR ITS AGENTS.
NOTWITHSTANDING THE FOREGOING OR
SUBSECTION (B) BELOW TO THE CONTRARY, PURCHASER SHALL NOT BE REQUIRED TO RESTORE
NOR TO BE LIABLE FOR ANY DAMAGE TO THE PROPERTY
14
resulting from the negligence or willful misconduct of Seller, AFE, PXURA, PXR,
PXLA (or any of their respective members, partners, officers, directors,
employees, agents or other authorized representatives) or any of the Schwab
Parties.
In addition, Purchaser shall not be liable to restore any damage to
the Real Property or the Improvements to the extent relating to existing
conditions at the Property which are revealed by Purchaser's investigations
permitted hereunder.
(B)
EXCEPT AS STATED TO THE CONTRARY IN THE LAST SENTENCE OF SECTION
5.3(A) ABOVE, PURCHASER HEREBY INDEMNIFIES, DEFENDS AND HOLDS SELLER AND
PROPERTY OWNER AND THEIR RESPECTIVE PARTNERS, AGENTS, DIRECTORS, OFFICERS,
EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "SELLER INDEMNIFIED
PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL LIENS, CLAIMS, CAUSES OF ACTION,
DAMAGES, LIABILITIES, DEMANDS, SUITS, AND OBLIGATIONS TO THIRD PARTIES, TOGETHER
WITH ALL LOSSES, PENALTIES, COSTS AND EXPENSES RELATING TO ANY OF THE FOREGOING
(INCLUDING BUT NOT LIMITED TO COURT COSTS AND REASONABLE ATTORNEYS' FEES),
ARISING OUT OF ANY DISCLOSURE(S) OF CONFIDENTIAL INFORMATION IN VIOLATION OF THE
PROVISIONS OF SECTION 5.2(B) AND ANY INSPECTIONS, INVESTIGATIONS, EXAMINATIONS,
SAMPLING OR TESTS CONDUCTED BY PURCHASER OR ANY OF THE LICENSEE PARTIES, WHETHER
PRIOR TO OR AFTER THE DATE HEREOF, PURSUANT TO THE PROVISIONS OF ARTICLE V OF
THIS AGREEMENT.
(C)
PROMPTLY FOLLOWING THE TIME THAT THIS AGREEMENT IS TERMINATED FOR
ANY REASON, PURCHASER SHALL RETURN TO SELLER ALL COPIES PURCHASER HAS MADE OF
THE DOCUMENTS AND ALL COPIES OF ANY STUDIES, REPORTS OR TEST RESULTS REGARDING
ANY PART OF THE PROPERTY OBTAINED BY PURCHASER, BEFORE OR AFTER THE EXECUTION OF
THIS AGREEMENT, IN CONNECTION WITH PURCHASER'S INSPECTION OF THE PROPERTY
(COLLECTIVELY, "PURCHASER'S INFORMATION").
PURCHASER'S INFORMATION SHALL NOT
INCLUDE PURCHASER'S INTERNAL MEMORANDA, FINANCIAL PROJECTIONS, BUDGETS,
APPRAISALS OR OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION.
PURCHASER'S
INFORMATION SHALL BE DELIVERED WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS (OTHER THAN THAT PURCHASER HAS
RETURNED ALL OF THE ITEMS IT IS REQUIRED TO RETURN) OF PURCHASER'S INFORMATION,
OR ANY OTHER REPRESENTATION OR WARRANTY; NEITHER SELLER NOR ANY OTHER PERSON OR
PARTY SHALL HAVE ANY RIGHT TO RELY ON PURCHASER'S INFORMATION NOR SHALL
PURCHASER SHALL HAVE ANY LIABILITY OR OBLIGATION WITH REGARD TO PURCHASER'S
INFORMATION.
(D)
THE TERMS AND PROVISIONS OF SECTION 5.3(B) AND SECTION 5.3(C)
ABOVE SHALL SUPERCEDE, IN ITS ENTIRETY, THE TERMS AND PROVISIONS OF THAT CERTAIN
RIGHT OF ACCESS AGREEMENT DATED NOVEMBER
, 2002 (THE "ACCESS AGREEMENT"),
BETWEEN AFE AND ISTAR FINANCIAL INC. ("ISTAR"), AND SUCH AGREEMENT SHALL, FROM
AND AFTER THE DATE HEREOF, BE OF NO FURTHER FORCE AND EFFECT AND NO OBLIGATIONS
SET FORTH THEREIN SHALL SURVIVE THE EFFECTIVE DATE; PROVIDED, HOWEVER, IF ISTAR
SHALL HAVE INCURRED ANY LIABILITY UNDER THE ACCESS AGREEMENT ON ACCOUNT OF ANY
INSPECTIONS,