taking
which has not been consummated), Seller shall notify Buyer of such fact
and the Buyer shall have the option to terminate this Agreement upon
notice to the Seller given not later than fifteen (15) business days
after receipt of the Seller's notice (and if Buyer does not
affirmatively terminate this Agreement within such period, then Buyer
shall be deemed to have elected to terminate this Agreement). If this
Agreement is so terminated, the provisions of Section 16(d) shall apply.
If Buyer does not elect to terminate this Agreement, or if an
"immaterial" portion ("immaterial" is herein deemed to be any taking
which is not "material", as such term is herein defined) of the Premises
is taken by eminent domain or condemnation, at the Closing, Seller shall
assign and turnover, and Buyer shall be entitled to receive and keep,
all awards or other proceeds for such taking by eminent domain or
condemnation, less any reasonable costs incurred by Seller in connection
therewith. A "material" portion of the Premises for purposes of this
Section 16(b) means more than ten percent (10%) of the gross floor area
of the improvements which comprise the Hotel Property or any portion of
the improvements necessary for the ongoing operation of the Hotel
Property or a material reduction of available parking area occurs.
c. If Buyer elects to terminate this Agreement pursuant to Section 16(a) or
16(b), this Agreement shall be terminated and neither party shall have
any further rights, obligations or liabilities hereunder, except for the
Surviving Obligations and the Deposit shall promptly be returned to
Buyer.
d. Seller and Buyer hereby agree that their respective rights in case of
damage, destruction, condemnation or taking by condemnation shall be
governed exclusively by the provisions of this Section 16.
33. Remedies.
34. a. IN THE EVENT OF A DEFAULT HEREUNDER BY BUYER PRIOR TO THE CLOSING DATE,
OR IF THE CLOSING FAILS TO OCCUR BY REASON OF BUYER'S FAILURE OR REFUSAL
TO PERFORM ITS OBLIGATIONS HEREUNDER ON THE CLOSING DATE FOR ANY REASON
WHATSOEVER, EXCEPT SELLER'S OR LIQUOR LICENSE SELLER'S DEFAULT, THEN
SELLER AND LIQUOR LICENSE SELLER SHALL, AS THEIR SOLE AND EXCLUSIVE
REMEDY, TERMINATE THIS AGREEMENT BY NOTICE TO BUYER. IF SELLER AND
LIQUOR LICENSE SELLER ELECT TO TERMINATE THIS AGREEMENT, THEN THIS
AGREEMENT SHALL BE TERMINATED AND SELLER AND LIQUOR LICENSE SELLER SHALL
RETAIN THE DEPOSIT, INCLUDING ANY INTEREST ACCRUED THEREON, AS
LIQUIDATED DAMAGES FOR ALL LOSS, DAMAGE AND EXPENSES SUFFERED BY THEM,
IT BEING AGREED THAT THEIR DAMAGES ARE IMPOSSIBLE TO ASCERTAIN, AND IT
BEING FURTHER AGREED THAT THE LIQUIDATED DAMAGES AS DESCRIBED IN THIS
SECTION 17(a) ARE REASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE
TIME THIS AGREEMENT WAS MADE, AND NEITHER PARTY SHALL HAVE ANY FURTHER
RIGHTS, OBLIGATIONS OR LIABILITIES HEREUNDER, EXCEPT FOR THOSE
OBLIGATIONS WHICH SPECIFICALLY SURVIVE ANY TERMINATION OF THIS AGREEMENT
PURSUANT TO THE TERMS HEREOF (THE "SURVIVING OBLIGATIONS"). NOTHING
CONTAINED HEREIN SHALL LIMIT OR RESTRICT SELLER'S AND LIQUOR LICENSE
SELLER'S ABILITY TO PURSUE ANY RIGHTS OR REMEDIES THEY MAY