Deliveries).
This provision shall be an absolute bar to any action by Buyer for specific
performance of this Agreement except in strict accordance with this Section 19,
and Seller shall be entitled to the immediate expungement of any lis pendens
filed by Buyer against the Property in violation of this Section 19. If Buyer
brings an action for specific performance of the Agreement, or records a lis
pendens against the Hotel Premises, or otherwise creates any cloud on Seller's
title to the Hotel Premises in violation of this Section 19, Buyer shall hold
harmless and indemnify Seller from and against all costs, expenses (including
attorneys' fees) and losses which Seller incurs by reason thereof.
20. LIQUIDATED DAMAGES AND LIMITATIONS OF REMEDIES FOR BUYER'S BREACH. IF BUYER
IN BREACH OF THIS AGREEMENT FAILS TO CLOSE, THEN UPON WRITTEN NOTICE OF
TERMINATION (A "TERMINATION NOTICE") FROM SELLER TO BUYER AND ESCROW AGENT, THIS
AGREEMENT SHALL TERMINATE (EXCEPT FOR THIS SECTION AND BUYER'S OBLIGATIONS
PURSUANT TO SECTIONS 4.7, 16.2 AND 16.9). THE PARTIES ACKNOWLEDGE AND AGREE BY
INITIALING THIS SECTION 20 THAT:
IF BUYER FAILS TO CLOSE IN BREACH OF THIS AGREEMENT, SELLER WILL INCUR CERTAIN
COSTS AND OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICAL TO ASCERTAIN.
THE DEPOSIT, TOGETHER WITH ALL INTEREST EARNED THEREON, BEARS A REASONABLE
RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY SELLER
BY REASON OF SUCH A FAILURE OF CLOSING TO OCCUR, AND THE DEPOSIT AND INTEREST IS
NOT AN AMOUNT WHICH IS UNREASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME
THIS AGREEMENT IS MADE (BUYER ACKNOWLEDGING AND AGREEING THAT BUYER HAS FULLY
CONSIDERED THE PROVISIONS OF THIS SECTION 20 AND SUCH CIRCUMSTANCES PRIOR TO
ENTERING INTO THIS AGREEMENT AND HAS CONSULTED WITH BUYER'S COUNSEL WITH RESPECT
THERETO); AND
UPON DELIVERY TO ESCROW AGENT BY SELLER OF A PROPERLY GIVEN TERMINATION NOTICE
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, SELLER SHALL BE ENTITLED TO
RECEIVE AND RETAIN THE DEPOSIT, TOGETHER WITH ALL INTEREST EARNED THEREON, AS
LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE SELLER'S SOLE REMEDY HEREUNDER IF
BUYER IN BREACH OF THIS AGREEMENT FAILS TO CLOSE, AND BUYER SHALL FORTHWITH
INSTRUCT ESCROW AGENT TO RELEASE THE DEPOSIT AND ALL INTEREST EARNED THEREON TO
SELLER AND TO RETURN TO SELLER ALL DOCUMENTS AND INSTRUMENTS THERETOFORE
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DEPOSITED INTO THE ESCROW BY OR ON BEHALF OF THEM; PROVIDED, HOWEVER, THAT THE
DEPOSIT SHALL BE IN ADDITION TO AND NOT IN LIEU OF ANY AMOUNTS OWED TO SELLER BY
BUYER AS A RESULT OF BUYER'S OBLIGATIONS PURSUANT TO SECTIONS 4.7, 16.2 AND
16.9; AND PROVIDED FURTHER THAT SELLER SHALL BE ENTITLED TO RECOVER FROM BUYER
ATTORNEYS' FEES AND OTHER DIRECT OUT-OF-POCKET COSTS INCURRED BY THEM IN
CONNECTION WITH THE ENFORCEMENT OR DEFENSE OF OBLIGATIONS CONTAINED IN THIS
SECTION 20.
IN FURTHER EVIDENCE OF THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION,
SELLER AND BUYER HAVE INITIALED BELOW:
SELLER:
BUYER:
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have