foregoing, the
Deductible, Cap, time limitations and the limitation on types of damages
contained herein shall not apply to any claim with respect to (a) an obligation
of Seller or its affiliates to pay the termination fees owing to Marriott
International, Inc., Manager or their affiliates, or (b) any fraudulent acts or
omissions by Seller.
The provisions of this Section 16(a) shall survive the Close of Escrow and any
earlier termination of this Agreement.
(b) Default by Purchaser. If the Closing does not occur due to Purchaser's
failure or inability to perform any of its obligations hereunder, then Seller,
as its sole and exclusive remedy, shall elect either: (i) to terminate this
Agreement and receive the Deposit as liquidated damages for breaches occurring
prior to the Closing Date, in which event the parties shall not have any
obligations hereunder to the other except for the obligations that expressly
survive a termination of this Agreement; or (ii) to waive such matter or
condition and proceed to Closing. IF SELLER TERMINATES THIS AGREEMENT AS
PROVIDED IN SECTION 16(b)(i) AND HAS THE RIGHT TO RECEIVE THE DEPOSIT, THE
PARTIES ACKNOWLEDGE AND AGREE BY INITIALING BELOW THAT: (I) IN THE EVENT OF SUCH
A DEFAULT, SELLER WILL INCUR CERTAIN COSTS AND OTHER DAMAGES IN AN AMOUNT THAT
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO ASCERTAIN; AND (II) THE DEPOSIT,
TOGETHER WITH ALL INTEREST, IF ANY, EARNED THEREON, BEARS A REASONABLE
RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY SELLER
BY REASON OF SUCH A DEFAULT, AND THE DEPOSIT AND INTEREST IS NOT AN AMOUNT WHICH
IS UNREASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT IS
MADE (PURCHASER ACKNOWLEDGING AND AGREEING THAT PURCHASER HAS FULLY CONSIDERED
THE PROVISIONS OF THIS SECTION 16) AND SUCH CIRCUMSTANCES PRIOR TO ENTERING INTO
THIS AGREEMENT AND HAS CONSULTED WITH PURCHASER'S COUNSEL WITH RESPECT THERETO);
AND (III) UPON DELIVERY TO ESCROW AGENT BY SELLER OF WRITTEN NOTICE OF THEIR
ELECTION TO TERMINATE THIS AGREEMENT AS PROVIDED IN CLAUSE (i) OF SECTION 16(b)
SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT, TOGETHER WITH ALL
INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES, AND PURCHASER 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
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
PURCHASER AS A RESULT OF INDEMNITIES AND OTHER PROVISIONS OF THIS AGREEMENT
WHICH EXPRESSLY SURVIVE ITS TERMINATION; AND PROVIDED FURTHER, THAT SELLER SHALL
BE ENTITLED TO RECOVER FROM PURCHASER ATTORNEYS' FEES AND OTHER OUT OF POCKET
COSTS INCURRED BY THEM IN CONNECTION WITH THE ENFORCEMENT OR DEFENSE OF
OBLIGATIONS CONTAINED IN THIS SECTION 16. IN FURTHER
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EVIDENCE OF THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION, SELLER AND
PURCHASER HAVE INITIALED BELOW:
SELLER:
PURCHASER:
17. Miscellaneous.
(a) Waiver of Performance. Either party may