the Effective Date, there are no lawsuits filed and served against
Buyer or, to Buyer's knowledge, otherwise pending or threatened whose outcome
could adversely affect Buyer's ability to purchase the Hotel and otherwise
perform its obligations under this Agreement.
5.2.4 Except for Seller's Broker, Buyer has not engaged or dealt with any
broker, finder or similar agent in connection with the transaction contemplated
by this Agreement.
5.2.5 PRIOR TO THE APPROVAL DATE, BUYER WILL CONDUCT ITS OWN INVESTIGATION OF
THE HOTEL AND MAKE ALL INQUIRIES, INSPECTIONS, TESTS, AUDITS, STUDIES AND
ANALYSES ("INQUIRIES") IN CONNECTION WITH PURCHASING THE HOTEL THAT BUYER DEEMS
NECESSARY OR ADVISABLE AND BUYER WILL RELY ON SUCH INSPECTIONS AND TESTS IN
DETERMINING IF THE
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HOTEL IS SUITABLE FOR BUYER'S PURPOSES. IF FOR ANY REASON BUYER IS UNABLE ON OR
BEFORE THE APPROVAL DATE TO MAKE ANY INQUIRY 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 INQUIRY OR
OBTAINED SUCH INFORMATION, IT WOULD HAVE ELECTED NOT TO PROCEED WITH THE
PURCHASE OF THE HOTEL ON THE TERMS CONTAINED HEREIN.
5.2.6 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY TRANSFER INSTRUMENT
OR OTHER DOCUMENT OR INSTRUMENT DELIVERED TO BUYER PURSUANT TO SECTION 10.2
HEREOF, BUYER IS BUYING THE HOTEL "AS IS, WHERE-IS AND WITH ALL FAULTS" AND
WITHOUT ANY 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 UNDER THIS SECTION 5
FOR MONETARY DAMAGES DUE TO A BREACH OF A REPRESENTATION OF SELLER EXPRESSLY SET
FORTH IN THIS AGREEMENT, BUYER HEREBY WAIVES AND RELINQUISHES, AND RELEASES
SELLER AND ALL OF SELLER'S PARTNERS AND AFFILIATES (COLLECTIVELY, "SELLER
RELEASEES") FROM, ANY AND ALL CLAIMS AND REMEDIES (INCLUDING, WITHOUT
LIMITATION, ANY RIGHT OF RESCISSION) AGAINST SELLER RELEASEES 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 AND ALL STATEMENTS, REPRESENTATIONS WARRANTIES, REPORTS,
OPINIONS OR OTHER INFORMATION, OR 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 WILLFUL FRAUD, GROSS NEGLIGENCE AND/OR BAD FAITH.
BUYER UNDERSTANDS THAT SUCH WAIVER AND RELEASE INCLUDES STATUTORY AS WELL AS
"COMMON LAW" AND