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
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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. NOTWITHSTANDING THE FOREGOING PROVISIONS, IN NO WAY
SHALL THIS SECTION 5.3 RELEASE THE SELLER FROM ANY OF ITS INDEMNIFICATION OR
OTHER OBLIGATIONS EXPLICITLY SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT OR
INSTRUMENT ENTERED INTO OR DELIVERED IN CONNECTION HEREWITH.
BUYER HEREBY ACKNOWLEDGES AND AGREES THAT (i) BUYER MAY HEREAFTER DISCOVER FACTS
DIFFERENT FROM OR IN ADDITION TO THOSE NOW (OR AS OF THE CLOSING) KNOWN OR
BELIEVED TO BE TRUE REGARDING THE PROPERTY AND/OR PROPERTY INFORMATION,
(ii) BUYER'S AGREEMENT TO RELEASE, ACQUIT AND DISCHARGE SELLER AND SELLER
RELEASEES AS SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT,
NOTWITHSTANDING THE EXISTENCE OR DISCOVERY OF ANY SUCH DIFFERENT OR ADDITIONAL
FACTS, AND (iii) BUYER KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL RIGHTS,
BENEFITS AND PRIVILEGES TO THE FULLEST EXTENT PERMISSIBLE UNDER ANY FEDERAL,
STATE, LOCAL, OR OTHER LAWS WHICH DO OR WOULD NEGATIVELY AFFECT VALIDITY OR
ENFORCEABILITY OF ALL OR PART OF THE RELEASES SET FORTH IN THIS AGREEMENT.
5.4 Survival and Limitations. The Parties' representations set forth in this
Section 5 (and their respective liability for any breach thereof) shall survive
Closing and shall not be deemed to merge into any of the Transfer Instruments;
provided, however, that Buyer or Seller shall have no liability to the other
party for any breach of such representations unless:
5.4.1 The facts constituting such breach have not been disclosed in writing to
Buyer or Seller, as applicable, at least five (5) days prior to Closing;
5.4.2 Buyer or Seller, as applicable, has given the other party written notice
claiming such breach, and stating in reasonable detail the factual basis for
such claim, within twelve (12) months after Closing (other than with respect to
a breach of the representations and warranties set forth in Sections ,
, , , 5.2.1, 5.2.2 and 5.2.3, which shall not be subject to
such limitations); and
5.4.3 Buyer's or Seller's, as applicable, actual out-of-pocket loss from such
breach exceeds $5,000 and from all breaches of Buyer's or Seller's (as
applicable) representations herein exceeds $50,000 in the aggregate; and
provided further, that in no event shall the aggregate liability of the party
against whom such claim(s) are made for all such breaches exceed four percent
(4%) of the Purchase Price (other than with respect to a breach of the
representations and warranties set forth in Sections , , ,
, 5.2.1, 5.2.2 and 5.2.3, which shall not be subject to such