Common use of As-Is, Where-Is, With All Faults Sale Clause in Contracts

As-Is, Where-Is, With All Faults Sale. Investor acknowledges that: (a) it has, prior to the Effective Date, completed such Due Diligence as Investor deems necessary or appropriate, and has independently confirmed to its satisfaction all information that it considers material to its purchase of the Interest or the Transaction, (b) it is a sophisticated investor capable of utilizing the information made available to it in connection with its acquisition of the Interest to evaluate the merits and risks of its acquisition of the Interest, to make an informed investment decision with respect thereto and to protect its interests in connection with such acquisition, and (c) it has the ability through its own employees, or through agents, independent contractors, consultants or other experts with whom it has a relationship, to evaluate the investment characteristics of the Interest and the Hotel and to assess issues pertaining to title to the Real Property, the value of the Property and the Interest, the past performance of the Hotel, the projected performance of the Hotel, the structural integrity and soundness of all improvements and structures located on the Real Property and the environmental condition of the Real Property; and, accordingly, the Interest to be issued to Investor and the Property shall be accepted by Investor on the Closing Date, subject to the Existing Members’ Warranties, “AS IS, WHERE IS, WITH ALL FAULTS”, with no right of setoff or reduction in the Investor Capital Contribution except for the adjustments and prorations set forth herein. Except for, and only to the extent of, Existing Members’ Warranties, Investor is acquiring the Interest based exclusively upon its own Due Diligence and not upon (i) any verbal or written representations, warranties, promises or guarantees (whether express, implied, statutory or otherwise) made to Investor or its Representatives with respect to the Interest, the Property, any matter set forth, contained or addressed in the Documents (including, but not limited to, the accuracy and completeness thereof) or the results of Investor’s Due Diligence nor upon (ii) any financial data or projections, offering memoranda, reports, analyses, estimates, budgets (operational, construction or otherwise), commentary, opinions or communications in any form related to the Property made available to Investor including, without limitation, concerning tax, legal, financial, labor, hotel operations or corporate structuring matters and the like ((i) and (ii) collectively, “Waived Reliance Items”). Except for, and only to the extent of, Existing Members’ Warranties, Investor hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity, under this Agreement or otherwise to make a claim against Existing Members for damages that Investor may incur, or to rescind this Agreement and the Transaction, as the result of any of the Waived Reliance Items being untrue, inaccurate or incorrect. Notwithstanding the foregoing, such acknowledgment is not intended to, and shall not be construed to affect or impair any rights or remedies that Investor may have against Existing Members as a result of a breach of any of Existing Members’ Warranties.

As-Is, Where-Is, With All Faults Sale. Investor acknowledges that: (a) it has, prior Because Buyer is to the Effective Date, completed conduct such Due Diligence as Investor Buyer deems necessary or appropriate, appropriate prior to the Due Diligence Deadline and has independently confirmed confirm to its Buyer’s satisfaction all information that it considers material to its purchase of the Interest Property or the Transaction, (b) it is a sophisticated investor capable of utilizing the information made available to it in connection with its acquisition of the Interest to evaluate the merits and risks of its acquisition of the Interest, to make an informed investment decision with respect thereto and to protect its interests in connection with such acquisition, and (c) it has the ability through its own employees, or through agents, independent contractors, consultants or other experts with whom it has a relationship, to evaluate the investment characteristics of the Interest and the Hotel and to assess issues pertaining to title to the Real Property, the value of the Property and the Interest, the past performance of the Hotel, the projected performance of the Hotel, the structural integrity and soundness of all improvements and structures located on the Real Property and the environmental condition of the Real Property; and, accordingly, the Interest to be issued to Investor and the Property shall be accepted by Investor on sold, and Buyer shall accept possession of the Closing Date, subject to the Existing Members’ WarrantiesProperty at Closing, “AS IS, WHERE IS, WITH ALL FAULTS”, with no right of setoff or reduction in the Investor Capital Contribution Purchase Price, but subject to all Seller’s Warranties. Without limiting the foregoing, except for the adjustments and prorations set forth herein. Except for, and only to the extent of, Existing Members’ Seller’s Warranties, Investor is acquiring none of the Interest based exclusively upon its own Due Diligence and not upon (i) Seller Parties have or shall be deemed to have made any verbal or written representations, warranties, promises or guarantees (whether express, implied, statutory or otherwise) made to Investor or its Representatives Buyer with respect to the Interest, the Property, any matter set forth, contained or addressed forth in the Property Documents (including, but not limited to, the accuracy and completeness thereof) or the results of InvestorBuyer’s Due Diligence nor upon (ii) any financial data Diligence. Buyer acknowledges that, except for Seller’s Warranties, all such information must be verified independently during Due Diligence. In addition, Buyer expressly understands and acknowledges that, except as otherwise expressly set forth in Seller’s Warranties, the Property Documents made available to Buyer may not be complete in all respects and that Seller may not have complete information concerning the Property in Seller’s possession or projectionscontrol. In addition, offering memoranda, reports, analyses, estimates, budgets (operational, construction or otherwise), commentary, opinions or communications in any form related Buyer expressly understands and acknowledges that it is possible that unknown Liabilities may exist with respect to the Property made available and that Buyer explicitly took that possibility into account in determining and agreeing to Investor including, without limitation, concerning tax, legal, financial, labor, hotel operations or corporate structuring matters and the like ((i) and (ii) collectively, “Waived Reliance Items”). Except forPurchase Price, and only to that a portion of such consideration, was bargained for between parties with the extent of, Existing Members’ Warranties, Investor hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity, under this Agreement or otherwise to make a claim against Existing Members for damages that Investor may incur, or to rescind this Agreement and the Transaction, as the result of any knowledge of the Waived Reliance Items being untrue, inaccurate or incorrectpossibility of such unknown Liabilities. Notwithstanding the foregoing, such acknowledgment is not intended to, and shall not be construed to, (i) result in any contractual assumption of liability as to matters which are not expressly assumed by Buyer in the Closing Documents, or (ii) affect or impair any rights or remedies that Investor Buyer may have against Existing Members Seller as a result of a breach of any of Existing Members’ Warranties.Seller’s Warranties or of any of Seller’s Surviving Covenants. If Closing occurs, Buyer, on behalf of itself and its successors and assigns, agrees as follows:

As-Is, Where-Is, With All Faults Sale. Investor acknowledges that: (a) it hasThe Parties acknowledge and agree that all interests being conveyed by Sellers to Buyer, prior including the Improvements, shall constitute real property for purposes of the conveyances contemplated under this Agreement. However, to the Effective Dateextent that personal property, completed such Due Diligence as Investor deems necessary or appropriateif any, and has independently confirmed to its satisfaction all information that is conveyed, it considers material to its purchase of the Interest or the Transaction, (b) it is a sophisticated investor capable of utilizing the information made available to it in connection with its acquisition of the Interest to evaluate the merits and risks of its acquisition of the Interest, to make an informed investment decision with respect thereto and to protect its interests in connection with such acquisition, and (c) it has the ability through its own employees, or through agents, independent contractors, consultants or other experts with whom it has a relationship, to evaluate the investment characteristics of the Interest and the Hotel and to assess issues pertaining to title to the Real Property, the value of the Property and the Interest, the past performance of the Hotel, the projected performance of the Hotel, the structural integrity and soundness of all improvements and structures located on the Real Property and the environmental condition of the Real Property; and, accordingly, the Interest to be issued to Investor and the Property shall be accepted by Investor on the Closing Date, subject to the Existing Members’ Warranties, “transferred AS IS, WHERE IS, WITH ALL FAULTS”, with no right of setoff AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER, AND SPECIFICALLY DISCLAIMING ALL UCC WARRANTIES SUCH AS THE WARRANTY OF MERCHANTABILITY OR THE WARRANTY OF USE FOR A PARTICULAR PURPOSE. The Parties acknowledge and agree that all Property, real, personal, or reduction in the Investor Capital Contribution except for the adjustments and prorations set forth herein. Except formixed, and only to the extent ofis being sold under this Agreement “AS-IS, Existing Members’ WarrantiesWHERE-IS, Investor is acquiring the Interest based exclusively upon its own Due Diligence and not upon (i) any verbal WITH ALL FAULTS.” No representations or written representations, warranties, promises or guarantees (whether express, implied, statutory or otherwise) arising by operation of law, have been made or will be made by the City or the Foundation or by any board member, City Council member, officer, Person, firm, agent, attorney, or representative acting or purporting to Investor act on behalf of the City or its Representatives with respect the Foundation regarding the condition of or title to the Interest, any of the Property, any matter set forth, contained or addressed in the Documents (including, but not limited to, the accuracy and completeness thereof) or the results of Investor’s Due Diligence nor upon (ii) any financial data or projections, offering memoranda, reports, analyses, estimates, budgets (operational, construction or otherwise), commentary, opinions or communications in any form related to the Property made available to Investor including, without limitation, concerning taxthe environmental condition. S & S waives and releases Sellers from any past, legalpresent, financialor future claims arising from or relating to the condition of or title to the Property, laborincluding, hotel operations without limitation, any claims arising from or corporate structuring related to the presence or alleged presence of any hazardous materials or harmful or toxic substances in, on, under, or about the property, prior to, on, or after the date of this Agreement, including, without limitation, any claims under or on account of any other federal, state, or local law, ordinance, rule, or regulation, now or hereafter in effect, that deals with or otherwise in any manner relates to, environmental matters of any kind. S & S and the like ((i) its successors and (ii) collectivelyassigns covenant and agree to defend, “Waived Reliance Items”). Except forindemnify, and only hold harmless Sellers from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, relating to any hazardous materials or harmful or toxic substances heretofore or hereafter in, at, about, or under the extent of, Existing Members’ Warranties, Investor hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity, Property being conveyed under this Agreement or otherwise to make a claim against Existing Members for damages that Investor may incur, or to rescind this Agreement and the Transaction, as the result of any of the Waived Reliance Items being untrue, inaccurate or incorrect. Notwithstanding the foregoing, such acknowledgment is not intended to, and shall not be construed to affect or impair any rights or remedies that Investor may have against Existing Members as a result of a breach of any of Existing Members’ WarrantiesAgreement.

As-Is, Where-Is, With All Faults Sale. Investor acknowledges that: (a) it has, prior Because Buyer is to the Effective Date, completed conduct such Due Diligence as Investor Buyer deems necessary or appropriate, appropriate prior to the Due Diligence Deadline and has independently confirmed confirm to its Buyer’s satisfaction all information that it considers material to its purchase of the Interest Property or the Transaction, (b) it is a sophisticated investor capable of utilizing the information made available to it in connection with its acquisition of the Interest to evaluate the merits and risks of its acquisition of the Interest, to make an informed investment decision with respect thereto and to protect its interests in connection with such acquisition, and (c) it has the ability through its own employees, or through agents, independent contractors, consultants or other experts with whom it has a relationship, to evaluate the investment characteristics of the Interest and the Hotel and to assess issues pertaining to title to the Real Property, the value of the Property and the Interest, the past performance of the Hotel, the projected performance of the Hotel, the structural integrity and soundness of all improvements and structures located on the Real Property and the environmental condition of the Real Property; and, accordingly, the Interest to be issued to Investor and the Property shall be accepted by Investor on sold, and Buyer shall accept possession of the Closing Date, subject to the Existing Members’ WarrantiesProperty at Closing, “AS IS, WHERE IS, WITH ALL FAULTS”, with no right of setoff or reduction in the Investor Capital Contribution Purchase Price. Without limiting the foregoing, except for the adjustments and prorations set forth herein. Except for, and only to the extent of, Existing Members’ Seller’s Warranties, Investor is acquiring none of the Interest based exclusively upon its own Due Diligence and not upon (i) Seller Parties have or shall be deemed to have made any verbal or written representations, warranties, promises or guarantees (whether express, implied, statutory or otherwise) made to Investor or its Representatives Buyer with respect to the Interest, the Property, any matter set forth, contained or addressed forth in the Property Documents (including, but not limited to, the accuracy and completeness thereof) or the results of InvestorBuyer’s Due Diligence nor upon (ii) any financial data Diligence. Buyer acknowledges that all such information must be verified independently during Due Diligence. In addition, Buyer expressly understands and acknowledges that the Property Documents made available to Buyer may not be complete in all respects and that Seller may not have complete information concerning the Property in Seller’s possession or projectionscontrol. In addition, offering memoranda, reports, analyses, estimates, budgets (operational, construction or otherwise), commentary, opinions or communications in any form related Buyer expressly understands and acknowledges that it is possible that unknown Liabilities may exist with respect to the Property made available and that Buyer explicitly took that possibility into account in determining and agreeing to Investor including, without limitation, concerning tax, legal, financial, labor, hotel operations or corporate structuring matters and the like ((i) and (ii) collectively, “Waived Reliance Items”). Except forPurchase Price, and only to that a portion of such consideration, having been bargained for between parties with the extent of, Existing Members’ Warranties, Investor hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity, under this Agreement or otherwise to make a claim against Existing Members for damages that Investor may incur, or to rescind this Agreement and the Transaction, as the result of any knowledge of the Waived Reliance Items being untrue, inaccurate or incorrectpossibility of such unknown Liabilities shall be given in exchange for a full accord and satisfaction and discharge of all such Liabilities. Notwithstanding the foregoing, such acknowledgment is not intended to, and shall not be construed to, (i) result in any contractual assumption of liability as to matters which are not expressly assumed by Buyer in the Closing Documents, or (ii) affect or impair any rights or remedies that Investor Buyer may have against Existing Members Seller as a result of a breach of any of Existing Members’ Warranties.Seller’s Warranties or of any of Seller’s Surviving Covenants. If Closing occurs, Buyer, on behalf of itself and its successors and assigns, agrees as follows: