or otherwise as set forth in this Agreement), commence an action for specific
performance without offset to the Purchase Price (except Purchaser shall be
entitled to offset Purchaser's attorney's fees and costs in connection with such
action), or (c) terminate this Agreement, whereupon the Escrow Agent shall
return the Deposit to Purchaser in accordance with the Escrow Instructions and
Purchaser shall be entitled, as its sole remedy, to recover its actual third
party out of pocket costs incurred in connection with the transactions
contemplated hereunder, not to exceed $1,000,000.
24
ARTICLE XI
"AS IS" Sale; Survival; Indemnification Obligations; Post-Closing Obligations
11.1 AS IS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN: PURCHASER
ACKNOWLEDGES AND AGREES THAT, PURCHASER IS ACQUIRING THE PROPERTY AS-IS,
WHERE-IS, AND WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE,
EXPRESS OR IMPLIED, IT BEING THE INTENTION OF SELLER AND PURCHASER EXPRESSLY TO
NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES
CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE
PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF (INCLUDING,
WITHOUT LIMITATION, ANY AND ALL WARRANTIES WHATSOEVER CONTAINED IN OR CREATED
UNDER THE UNIFORM COMMERCIAL CODE IN EFFECT IN ANY OTHER JURISDICTION WHOSE LAW
MAY BE APPLICABLE TO THE CONSTRUCTION OR ENFORCEMENT OF THIS AGREEMENT OR ANY
AND ALL INSTRUMENTS CONTEMPLATED HEREIN). WITHOUT LIMITATION ON THE FOREGOING,
PURCHASER WILL BE ACQUIRING THE PROPERTY SOLELY IN RELIANCE ON PURCHASER'S OWN
INSPECTIONS, EXAMINATIONS, AND EVALUATIONS OF THE PROPERTY AND PRIOR TO TAKING
TITLE TO THE PROPERTY, PURCHASER SHALL HAVE HAD THE OPPORTUNITY TO DETERMINE
WHETHER PURCHASER IS SATISFIED WITH THE CONDITION, QUALITY, QUANTITY, OPERATION,
STATE OF REPAIR, AND PROSPECTS OF THE PROPERTY IN ALL RESPECTS, AND PURCHASER
SHALL HAVE DECIDED THAT PURCHASER IS WILLING TO ACQUIRE THE PROPERTY "AS-IS,
WHERE-IS", AND WITH ALL FAULTS. PURCHASER AGREES AND ACKNOWLEDGES THAT, EXCEPT
FOR SELLER'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE III
HEREOF, NO OTHER REPRESENTATIONS, STATEMENTS OR WARRANTIES HAVE AT ANY TIME BEEN
MADE BY SELLER, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, MEMBERS,
PARTNERS, TRUSTEES, BENEFICIARIES, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES,
ATTORNEYS, ACCOUNTANTS, CONTRACTORS, CONSULTANTS, AGENTS OR REPRESENTATIVES, NOR
ANY PERSON PURPORTING TO REPRESENT ANY OF THE FOREGOING, AS TO (A) THE
CONDITION, SAFETY, QUALITY, QUANTITY, USE, OCCUPANCY, OPERATION OR STATE OF
REPAIR OF THE PROPERTY, (B) THE PAST, PRESENT OR FUTURE REVENUES OR EXPENSES
WITH RESPECT TO THE PROPERTY, (C) THE COMPLIANCE OF THE PROPERTY OR THE
OPERATION OF THE HOTEL WITH ANY ZONING REQUIREMENTS, BUILDING CODES OR OTHER
APPLICABLE LAW, OR (D) THE CONDITION, SAFETY, QUALITY, QUANTITY, USE, OCCUPANCY,
OPERATION, STATE OF REPAIR, OR PROSPECTS FOR THE PROPERTY IN ANY RESPECT.
11.2 Survival; Limitations and Holdback. Seller's and Purchaser's
representations and warranties, indemnification obligations, and all other
covenants and agreements of Seller shall survive the Closing for a period of
fourteen (14) months (the "Survival Period"), provided,
25
however, Seller's representations as set forth in Section