a court of competent jurisdiction, and last resort
in the case of an appeal, as a fee interest subject to a grant of an equitable
mortgage by Lessee or as a financing instrument provided in favor of Lessee or
otherwise, and not as a leasehold estate in substantial conformity with the
terms and conditions contained in this Lease, then Lessee and Lessor agree that
this Lease shall constitute a Security Right with respect to the applicable
Specified Collateral provided in clauses (i), (ii) and (iii) of Section 7.1(b)
and shall be enforceable in accordance with the terms and conditions contained
in this Lease to the extent that such terms and conditions may be enforceable
pursuant to the determination of such court of competent jurisdiction. Lessor
and Lessee further agree that the provisions of this Section 7.1 are for the
benefit of, and may be enforceable by Lessor, Lessee and each of the Financing
Parties.
8
ARTICLE VIII
8.1 Condition of the Property.
LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE PROPERTY "AS-IS WHERE-IS"
WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY LESSOR
(EXCEPT THAT LESSOR SHALL KEEP THE PROPERTY FREE AND CLEAR OF LESSOR LIENS) AND
IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY
PARTIES IN POSSESSION THEREOF (IF ANY), (C) ANY STATE OF FACTS REGARDING ITS
PHYSICAL CONDITION OR WHICH AN ACCURATE SURVEY MIGHT SHOW, (D) ALL APPLICABLE
LEGAL REQUIREMENTS AND (E) VIOLATIONS OF LEGAL REQUIREMENTS WHICH MAY EXIST ON
THE DATE HEREOF AND/OR THE DATE OF THE APPLICABLE LEASE SUPPLEMENT. NEITHER
LESSOR NOR THE AGENT NOR ANY OTHER PRIMARY FINANCING PARTY HAS MADE OR SHALL BE
DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) (EXCEPT THAT LESSOR SHALL KEEP THE PROPERTY FREE AND CLEAR OF LESSOR
LIENS AND, SUBJECT TO THE TERMS AND CONDITIONS HEREOF, WILL CAUSE THE PROPERTY
TO BE CONVEYED FREE AND CLEAR OF LESSOR LIENS) OR SHALL BE DEEMED TO HAVE ANY
LIABILITY WHATSOEVER AS TO THE TITLE, VALUE, HABITABILITY, USE, CONDITION,
DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF), AND
NEITHER LESSOR NOR THE AGENT NOR ANY OTHER PRIMARY FINANCING PARTY SHALL BE
LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREON OR THE FAILURE OF THE
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT. LESSEE HAS
OR PRIOR TO THE BASIC TERM COMMENCEMENT DATE WILL HAVE BEEN AFFORDED FULL
OPPORTUNITY TO INSPECT THE PROPERTY AND THE IMPROVEMENTS THEREON (IF ANY), IS OR
WILL BE (INSOFAR AS LESSOR, THE AGENT AND EACH OTHER PRIMARY FINANCING PARTY ARE
CONCERNED) SATISFIED WITH THE RESULTS OF ITS INSPECTIONS AND IS ENTERING INTO
THIS LEASE SOLELY ON THE BASIS OF THE RESULTS OF ITS OWN INSPECTIONS, AND ALL
RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, AS BETWEEN
LESSOR, THE AGENT AND