Common use of Truth of Seller’s Representations and Warranties Clause in Contracts

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any of Seller’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Hundred Fifty Thousand Dollars ($350,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Hundred Fifty Thousand Dollars ($350,000.00), but less than Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Hundred Fifty Thousand Dollars ($350,000.00) not to exceed a credit of Four Hundred Thousand Dollars ($400,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty (20) days to allow such cure as long as Seller uses its diligent and reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any of Seller’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Two Hundred Fifty Twenty Thousand Dollars ($350,000.00220,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Two Hundred Twenty Thousand Dollars ($220,000.00), but less than Three Hundred Fifty Thousand Dollars ($350,000.00), but less than Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Two Hundred Fifty Twenty Thousand Dollars ($350,000.00220,000.00) not to exceed a credit of Four One Hundred Thirty Thousand Dollars ($400,000.00130,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 1.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Three Hundred Fifty Thousand Dollars ($750,000.00350,000.00), Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Eastern Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty (20) days to allow such cure as long as Seller uses its diligent and reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were shall be true in all material respects when made, and are shall be true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser Buyer shall have received a certificate Seller's Certificate to that effect signed by Seller; , provided that (a) Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted byby this Agreement, or approved by Purchaser in accordance with, this Agreement and (yb) did not result from a breach representation and warranty of Seller deemed remade on the Closing Date shall only be deemed untrue or inaccurate in any of Sellermaterial respect if the matter or facts which make such representation or warranty untrue or inaccurate have a material adverse effect on the Property or on Buyer’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course use and development of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation QualificationProperty. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without in any obligation to do somaterial respect as aforesaid, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Hundred Fifty Thousand Dollars ($350,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Hundred Fifty Thousand Dollars ($350,000.00), but less than Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Hundred Fifty Thousand Dollars ($350,000.00) not to exceed a credit of Four Hundred Thousand Dollars ($400,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser Buyer shall have the right to terminate this Agreement (subject by giving notice to Seller’s cure right set forth below). If Purchaser has the right such effect to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing Seller on or prior to before the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Time) on the scheduled Closing Date), then this Agreement shall terminate, Purchaser in which event Buyer shall receive a return of the Deposit, and neither Seller nor Purchaser Buyer shall have any further obligations or liabilities under this Agreement except for such obligations and liabilities that expressly survive the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions termination of this Agreement. In all events, Seller shall in any event have the right (but not the obligation) to cure such breach breaches or inaccuracy to Purchaser’s reasonable satisfaction inaccuracies and, if necessary to allow such Seller to cure, the Closing Date shall be extended for up to twenty fifteen (2015) days to allow such cure as long as Seller uses its agrees to use reasonable diligent and reasonable efforts to effect such cure; provided. If, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to the Closing. If , Buyer is deemed to have knowledge pursuant to Section 6.3 hereof or is advised with reasonable specificity in the Seller’s Certificate that any representation or warranty of Seller elects in writing is untrue or that Seller has not to cure or fails to give Purchaser notice complied with any of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations covenants under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence Buyer nonetheless proceeds with the Closing, Seller shall have no liability for any such matter, it being understood and agreed, that, for purposes of satisfying Buyer’s condition to closing under this Section 9.5(a)(ii), the representations and warranties of Seller shall not be deemed remade to reflect such matters of which Buyer has actual knowledge prior to Closing (and Buyer shall have the right to terminate this Agreement as set forth in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of this Section 9.2(b9.5(a)(ii) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenantsof Seller cannot be made as of the Closing Date subject to the terms and conditions of this Section 9.5(a)(ii).

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any of Seller’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Hundred Fifty Thousand Dollars ($350,000.00300,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Hundred Fifty Thousand Dollars ($350,000.00300,000.00), but less than Seven Four Hundred Fifty Thousand Dollars ($750,000.00450,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Hundred Fifty Thousand Dollars ($350,000.00300,000.00) not to exceed a credit of Four One Hundred Fifty Thousand Dollars ($400,000.00150,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Four Hundred Fifty Thousand Dollars ($750,000.00450,000.00), Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d6.3(e) above, but in any event prior to 2:00PM (Central Eastern Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty (20) days to allow such cure as long as Seller uses its diligent and reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any of Seller’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00), but less than Seven Three Hundred Fifty Seventy-Five Thousand Dollars ($750,000.00375,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00) not to exceed a credit of Four One Hundred Thousand Dollars ($400,000.00100,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Three Hundred Fifty Seventy-Five Thousand Dollars ($750,000.00375,000.00), Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Eastern Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty (20) days to allow such cure as long as Seller uses its diligent and reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) 44 did not result from a breach of any of Seller’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00), but less than Seven Four Hundred Fifty Thousand Dollars ($750,000.00400,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00) not to exceed a credit of Four One Hundred Twenty-Five Thousand Dollars ($400,000.00125,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 1.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Four Hundred Fifty Thousand Dollars ($750,000.00400,000.00), Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Eastern Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty (20) days to allow such cure as long as Seller uses its diligent and reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any of Seller’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Hundred Fifty Thousand Dollars ($350,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Hundred Fifty Thousand Dollars ($350,000.00), but less than Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Hundred Fifty Thousand Dollars ($350,000.00) not to exceed a credit of Four Hundred Thousand Dollars ($400,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Eastern Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty (20) days to allow such cure as long as Seller uses its diligent and reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any of Seller’s obligations hereunder; (ii) is due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did not result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00), but less than Seven Four Hundred Fifty Thousand Dollars ($750,000.00400,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Two Hundred Fifty Seventy-Five Thousand Dollars ($350,000.00275,000.00) not to exceed a credit of Four One Hundred Twenty-Five Thousand Dollars ($400,000.00125,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 1.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Four Hundred Fifty Thousand Dollars ($750,000.00400,000.00), Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Eastern Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty (20) days to allow such cure as long as Seller uses its diligent and reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, whereupon Escrow Company shall immediately return the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this Agreement, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; provided provided, however, that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to any changes thereto resulting from transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any of Seller’s obligations hereunder; (ii) is or due to changes in fact after the Effective Date beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did do not constitute or result from a material breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualificationthe covenants applicable to it under this Agreement. Notwithstanding the foregoing, if any representation and warranty of Seller is no longer true as of the Closing Date (subject due to changes in fact after the limitations Effective Date which do not result from an action or actions arising from the ordinary course of the immediately preceding sentence) business, and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Hundred Fifty Thousand Dollars ($350,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Hundred Fifty Thousand Dollars ($350,000.00), but less than Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Hundred Fifty Thousand Dollars ($350,000.00) not to exceed a credit of Four Hundred Thousand Dollars ($400,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder under this clause (B) shall constitute a default by Purchaser under Section 15.1 (provided Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00), then Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right elect to terminate this Agreement pursuant in which case Purchaser shall give notice to the preceding sentence and Purchaser makes such election in writing Seller on or prior to before the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Time) on the scheduled Closing Date), then in which event this Agreement shall terminate, Purchaser shall receive a return of the DepositXxxxxxx Money, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty ten (2010) days to allow such cure as long as Seller uses its diligent and commercially reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If if Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement, Agreement whereupon Escrow Company shall immediately return the Deposit Xxxxxxx Money to Purchaser, the Parties shall each pay one-half of (1/2) the costs of Escrow, and neither Party party to this Agreement shall thereafter have any further rights or obligations liabilities under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy breach was created, knowingly intentionally consented to or affirmatively permitted by Seller, Manager Seller or their its respective Affiliate in material breach Affiliates for the purpose of this Agreementfrustrating the Closing and the transactions contemplated hereby, Purchaser shall also be entitled to reimbursement for all of Purchaser’s documented out of out-of-pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with this Agreement and Due Diligence in an Agreement, up to a maximum amount not to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenants$250,000.

Truth of Seller’s Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true in all material respects when made, and are true in all material respects on the Closing Date as if remade on the Closing Date, and Purchaser shall have received a certificate to that effect signed by Seller; , provided that Seller’s representations and warranties shall not be deemed inaccurate or breached if such change to the respective representation and warranty (i) (x) is due to transactions or actions that are expressly permitted by, or approved by Purchaser in accordance with, this Agreement and (y) did not result from a breach of any Agreement. In the event that one of Seller’s obligations hereunder; (ii) is representations and warranties shall be deemed inaccurate or breached due to changes in fact after the Effective Date date of this Agreement beyond Seller’s reasonable control that occurred in the ordinary course of the business of owning and operating the Hotel and (x) did do not constitute or result from a breach of any of Seller’s obligations hereunder and (y) reflect only arm’s length bona fide transactions; or (iii) constitutes a Representation Qualification. Notwithstanding the foregoing, if any representation and warranty of default by Seller is no longer true as of the Closing Date (subject covenants applicable to the limitations of the immediately preceding sentence) and Seller does not cure or otherwise remedy such change without any obligation to do so, then if such change would, individually or in the aggregate, (A) result in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is less than Three Hundred Fifty Thousand Dollars ($350,000.00), Purchaser shall be obligated to proceed to Closing and Seller shall have no liability with respect thereto (provided that, any such change described in any of clauses (i) through (iii) above shall not be a breach of this Agreement and, for avoidance of doubt, shall not be subject to Seller’s indemnification obligations set forth in Section 5.4(b)); or (B) result in losses to Purchaser such that the actual cost (and not consequential damages) to address such inaccuracy (as opposed to the effect on the value of the Property) after the Closing is in excess of Three Hundred Fifty Thousand Dollars ($350,000.00), but less than Seven Hundred Fifty Thousand Dollars ($750,000.00), Purchaser shall not be obligated to proceed to Closing, unless Seller elects to credit Purchaser at Closing an amount equal to all losses caused by such change in excess of Three Hundred Fifty Thousand Dollars ($350,000.00) not to exceed a credit of Four Hundred Thousand Dollars ($400,000.00), in which event Purchaser shall be obligated to proceed with Closing hereunder and any failure of Purchaser to close the transactions contemplated hereunder it under this clause (B) shall constitute Agreement, including, without limitation, a default by Purchaser under Section 15.1 (provided any party other than Seller is ACTIVE/85506504.17 LEGAL_US_W # 85494519.11 prepared or any of its Affiliates to give such credit (without any obligation to do so); provided, however, if the change in the representation and warranty results in actual losses (and not consequential damages) to Purchaser such that the actual cost to address such inaccuracy (as opposed agreement relating to the effect on Property, changes in Bookings or the value of the Property) after the Closing is in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00)Employees, Purchaser shall have the right to terminate this Agreement (subject to Seller’s cure right set forth below). If Purchaser has the right to terminate this Agreement pursuant to the preceding sentence and Purchaser makes such election in writing on or prior to the Closing Date (provided that Purchaser shall make such election to terminate, if at all, promptly after receipt of Seller’s certificate delivered under Section 6.3(d) above, but in any event prior to 2:00PM (Central Time) on the Closing Date), then this Agreement shall terminate, Purchaser shall receive a return of the Deposit, and neither Seller nor Purchaser shall have any further obligations under this Agreement except for the Surviving Obligations. In each instance of clauses (A) or (B) above, in no event shall any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s express indemnification obligations under this Agreement be included in the calculation of such losses (collectively, “Indemnified Losses”); provided, however, that to the extent that any such Indemnified Losses are excluded from the calculation of losses under clause (A) or (B), as applicable, such Indemnified Losses shall not be applied against the Cap in connection with an indemnification claim brought by Purchaser after the Closing subject to the terms and conditions of this Agreement. Seller shall in any event have the right to cure such breach or inaccuracy to Purchaser’s reasonable satisfaction and, if necessary to allow such cure, the Closing Date shall be extended for up to twenty sixty (2060) days to allow such cure as long as Seller uses its diligent and agrees to use reasonable efforts to effect such cure; provided, however, such cure period will not extend the Closing Date past any commitment date of any financing or cost Purchaser any amount to extend such commitment date (provided that Purchaser shall have notified Seller of any such commitment date at least ten (10) days prior to Closing. If if Seller elects in writing not to cure or fails to give Purchaser notice of its intent to cure, Purchaser may terminate this Agreement. If, whereupon Escrow Company shall immediately return prior to the Deposit to Purchaser, the Parties shall each pay one-half of the costs of Escrow, and neither Party to this Agreement shall thereafter have any further rights or obligations under this Agreement, except for the Surviving Obligations; provided, however, if such inaccuracy was created, knowingly consented to or affirmatively permitted by Seller, Manager or their respective Affiliate in material breach of this AgreementClosing, Purchaser shall also be entitled to reimbursement for all obtains knowledge that any representation or warranty of Purchaser’s documented out Seller is untrue or that Seller has not complied with any of pocket costs of this transaction actually incurred to third parties, including reasonable attorneys’ fees and costs incurred in connection with its covenants under this Agreement and Due Diligence in an amount not Purchaser nonetheless proceeds with the Closing, Seller shall have no liability for any such matter regarding which Purchaser had knowledge prior to exceed the Seller’s Liability Amount. Nothing herein shall modify or supersede the terms of and conditions of Section 9.2(b) in the event that Purchaser elects to proceed with acquisition of the Property notwithstanding a breach or inaccuracy with respect to Seller’s representations and warranties or covenantsClosing.