ON OR
BEFORE THE EFFECTIVE DATE TO MAKE ANY INQUIRIES THAT IT DESIRED TO MAKE, OR THAT
IS CUSTOMARILY MADE IN TRANSACTIONS OF THIS SORT, OR OTHERWISE FAILS TO OBTAIN
INFORMATION SUFFICIENT TO ANSWER ANY QUESTION REGARDING THE CONDITION AND
SUITABILITY OF THE HOTEL, AND YET NONETHELESS PROCEEDS WITH THE PURCHASE OF THE
HOTEL, BUYER SHALL ASSUME ALL RISKS THAT, HAD IT PERFORMED SUCH INQUIRIES OR
OBTAINED SUCH INFORMATION, IT WOULD HAVE ELECTED NOT TO PROCEED WITH THE
PURCHASE OF THE HOTEL ON THE TERMS CONTAINED HEREIN.
5.2.11
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY CLOSING
DOCUMENT, BUYER IS BUYING THE HOTEL "AS IS, WHERE-IS AND WITH ALL FAULTS" AND
WITHOUT ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
OF ANY KIND WHATSOEVER, WHETHER BY SELLER OR BY ANY ONE ACTING ON SELLER'S
BEHALF (INCLUDING, WITHOUT LIMITATION, AGENTS, BROKERS, CONSULTANTS, COUNSEL,
EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, TRUSTEES OR
BENEFICIARIES).
5.3
WAIVER AND RELEASE. AS A MATERIAL PART OF THE CONSIDERATION TO SELLER FOR
THE SALE OF THE HOTEL HEREUNDER, EXCEPT FOR A CLAIM MADE FOR MONETARY DAMAGES
DUE TO A BREACH OF A REPRESENTATION, WARRANTY OR COVENANT OF SELLER EXPRESSLY
SET FORTH IN THIS AGREEMENT, AND EXCEPT FOR ANY CLAIMS BASED ON ANY
INDEMNIFICATIONS PROVIDED BY SELLER HEREIN OR IN SELLER'S CLOSING DOCUMENTS,
BUYER HEREBY WAIVES AND RELINQUISHES, AND RELEASES SELLER AND ALL OF SELLER'S
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "SELLER
RELEASE PARTIES") FROM, ANY AND ALL CLAIMS AND REMEDIES (INCLUDING, WITHOUT
LIMITATION, ANY RIGHT OF RESCISSION) AGAINST SELLER RELEASE PARTIES OR ANY OF
THEM BASED DIRECTLY OR INDIRECTLY ON (A) ANY PAST, PRESENT OR FUTURE CONDITION
OF THE HOTEL, INCLUDING, WITHOUT
LIMITATION, THE RELEASE OR PRESENCE OF ANY HAZARDOUS SUBSTANCES OR (B) ANY
MISREPRESENTATION, OR FAILURE TO DISCLOSE TO BUYER ANY INFORMATION, REGARDING
THE HOTEL (INCLUDING, WITHOUT LIMITATION, ANY DEFECTIVE, HAZARDOUS OR UNLAWFUL
CONDITION WHICH SELLER SHOULD BE AWARE, WHETHER OR NOT SUCH CONDITION REASONABLY
COULD HAVE BEEN DISCOVERED BY BUYER THROUGH AN INSPECTION OF THE HOTEL OR THE
PROPERTY RECORDS), OTHER THAN SUCH A MISREPRESENTATION CONSTITUTING FRAUD. BUYER
UNDERSTANDS THAT SUCH WAIVER AND RELEASE INCLUDES STATUTORY AS WELL AS "COMMON
LAW" AND EQUITABLE RIGHTS AND REMEDIES AND THAT IT COVERS POTENTIAL CLAIMS OF
WHICH BUYER MAY BE CURRENTLY UNAWARE OR UNABLE TO DISCOVER. BUYER ACKNOWLEDGES
THAT THE FOREGOING WAIVER AND RELEASE IS OF MATERIAL CONSIDERATION TO SELLER IN
ENTERING INTO THIS AGREEMENT, THAT BUYER'S COUNSEL HAS ADVISED BUYER OF THE
POSSIBLE LEGAL CONSEQUENCES OF MAKING SUCH WAIVER AND RELEASE AND THAT BUYER HAS
TAKEN INTO ACCOUNT, IN AGREEING TO PURCHASE THE HOTEL AT THE PURCHASE PRICE
SPECIFIED HEREIN, SELLER'S DISCLAIMER OF ANY WARRANTIES AND REPRESENTATIONS
REGARDING THE HOTEL OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN AND IN SELLER'S
CLOSING DOCUMENTS.
BUYER FURTHER AGREES AND ACKNOWLEDGES THAT, IN GIVING THE FOREGOING WAIVER AND
RELEASE, IT HAS WITH ITS LEGAL COUNSEL, CONSIDERED ANY STATUTE OR OTHER LAW THAT
MIGHT APPLY TO AND LIMIT THE EFFECT OF BUYER'S WAIVER AND RELEASE HEREIN AND
HEREBY