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,
investigations, examinations, sampling or tests conducted prior to the Effective
Date by iStar, Purchaser or any of the Licensee Parties, then any liability of
iStar under the Access Agreement shall survive the Effective Date but the
obligations with respect thereto shall be governed by the provisions of this
Agreement, and not by the provisions of the Access Agreement.
Section 5.4.......Sale "As Is". THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER. THIS AGREEMENT REFLECTS THE
MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS HAD AND HAS THE
RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND SELLER'S
LLC INTEREST. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 8.1, 8.2 AND 8.3
HEREOF AND ANY CLOSING CERTIFICATION OF SELLER AS TO THE TRUTH AND ACCURACY OF
THE REPRESENTATIONS AND WARRANTIES AS OF THE CLOSING DATE AND THE
REPRESENTATIONS IN SELLER'S (AND PROPERTY OWNER'S) TITLE AFFIDAVIT,
NON-IMPUTATION ENDORSEMENT AFFIDAVIT AND ALL OTHER CLOSING DOCUMENTS, BY WHICH
ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE MODIFIED AND LIMITED AS
IF SUCH EXCEPTION WERE FULLY SET FORTH HEREIN IN EACH INSTANCE, PURCHASER HAS
NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER'S AGENTS OR
REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS
OR WARRANTIES HAVE BEEN MADE.
15
SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER'S
AFFILIATES NOR ANY OTHER PERSON (INCLUDING, WITHOUT LIMITATION, PROPERTY OWNER)
IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER,
AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR
IMPLIED, ARE MADE BY SELLER OR ANY OF SELLER'S AFFILIATES OR RELIED UPON BY
PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR,
CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF,
INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES
OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM
DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF
DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE
PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR
THE PROPERTY OWNER AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY
OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING, WITHOUT
LIMITATION, ANY ENVIRONMENTAL LAWS, NOW EXISTING OR HEREINAFTER ENACTED OR
PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY (THROUGH THE TRANSFER OF
SELLER'S LLC INTEREST) WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS
PRESENT CONDITION AND STATE OF REPAIR,