ANY NET WORTH, UNENCUMBERED ASSETS OR TO
DELIVER ANY COLLATERAL, IN ALL CASES, REQUIRED UNDER THE TRANSACTION DOCUMENTS,
WHICH IS NOT CURED WITHIN TEN (10) DAYS AFTER NOTICE FROM OWNER TO MANAGER.
17.2
REMEDIES FOR MANAGER DEFAULTS.
SO LONG AS A MANAGER EVENT OF
DEFAULT SHALL BE OUTSTANDING, OWNER SHALL HAVE (IN ADDITION TO ITS OTHER RIGHTS
AND REMEDIES AT LAW, IN EQUITY OR OTHERWISE) THE RIGHT TO TERMINATE THIS
AGREEMENT.
UPON SUCH TERMINATION, OR IF THIS AGREEMENT IS TERMINATED PURSUANT
TO SECTIONS 5.1 OR 10.3, OWNER SHALL BE ENTITLED TO LIQUIDATED DAMAGES.
OWNER'S
RIGHT TO RECEIVE LIQUIDATED DAMAGES HAS BEEN AGREED TO DUE TO THE UNCERTAINTY,
DIFFICULTY AND/OR IMPOSSIBILITY OF ASCERTAINING THE ACTUAL DAMAGES SUFFERED BY
OWNER.
FURTHER, IF NOT FOR OWNER'S RIGHT TO RECEIVE SUCH LIQUIDATED DAMAGES,
PURCHASER WOULD NOT HAVE ENTERED INTO THE INITIAL HOTELS PURCHASE AGREEMENT,
PURCHASER WOULD NOT HAVE ACQUIRED THE HOTELS AND OWNER WOULD NOT HAVE ENTERED
INTO THE LEASE.
MANAGER HEREBY ACKNOWLEDGES AND AGREES THAT SUCH LIQUIDATED
DAMAGES ARE NOT A PENALTY, BUT ARE TO COMPENSATE OWNER AND ITS AFFILIATES FOR
THE EXPENSE AND LOST EARNINGS WHICH MAY RESULT FROM ARRANGING SUBSTITUTE
MANAGEMENT FOR THE HOTELS
74
AS WELL AS TO COMPENSATE FOR THE RENT OWNER MUST PAY UNDER THE LEASE AND THE
PRICE PAID FOR THE HOTELS BY OWNER'S AFFILIATE.
Such liquidated damages shall
be equal to the sum of (i) all accrued but unpaid amounts due to Owner hereunder
up until the date of termination, plus (ii) the Outstanding Balance (as defined
in the Guaranty), plus (iii) the outstanding balance of the Deposit.
Owner
shall be entitled to interest, at the Interest Rate, on such liquidated damages
from the date of such termination until the date of payment of such damages and
interest.
Except with respect to Owner's rights and remedies for any breach or
violations by Manager of the terms of Section 17.4, Owner shall look solely to
the Deposit or any other collateral hereafter pledged securing Manager's
obligations hereunder for satisfaction of any claim of Owner against Manager
hereunder; provided, however, nothing contained herein is intended to, nor
shall, limit or reduce the obligations of the Guarantor under the Guaranty or
limit Owner's rights with respect thereto.
17.3
OWNER EVENTS OF DEFAULT AND REMEDIES FOR OWNER DEFAULTS.
IN THE
EVENT ANY REPRESENTATION OR WARRANTY MADE BY OWNER IN THIS AGREEMENT PROVES TO
BE UNTRUE WHEN MADE IN ANY MATERIAL RESPECT OR OWNER FAILS TO PERFORM ITS
OBLIGATIONS HEREUNDER, MANAGER SHALL HAVE THE RIGHT TO INSTITUTE FORTHWITH ANY
AND ALL PROCEEDINGS PERMITTED BY LAW OR EQUITY (PROVIDED THEY ARE NOT
SPECIFICALLY BARRED UNDER THE TERMS OF THIS AGREEMENT), INCLUDING, WITHOUT
LIMITATION, ACTIONS FOR SPECIFIC PERFORMANCE AND/OR DAMAGES; PROVIDED, HOWEVER,
EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THIS AGREEMENT, MANAGER SHALL HAVE NO
RIGHT TO TERMINATE THIS AGREEMENT BY REASON OF SUCH A FAILURE BY OWNER OR
OTHERWISE.
MANAGER SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT IN THE EVENT
OF A VIOLATION OF THE TERMS OF SECTION 4.7 BY PURCHASER