further rights,
obligations or liabilities hereunder, other than those which by their terms
expressly survive termination of this Agreement.
(b) If on the Closing Date the conditions precedent set forth in Section 7.1
herein are not satisfied (for any reason except failure by Owner JV or Lessee JV
to perform hereunder), Owner JV shall have the right to terminate this Agreement
by delivering written notice to
Escrow Agent with a simultaneous copy to Hersha
Owner in accordance with Section 10.3.
Unless Escrow Agent receives written
notice within five (5) Business Days of receipt of such termination notice that
Hersha Owner is disputing such termination, then on the fifth (5th) Business Day
after receipt of such termination notice, Escrow Agent shall deliver the entire
Deposit to Owner JV without offset, deduction or delay in accordance with the
written wiring instructions provided by Owner JV and without the need for any
further consent or authorization of Hersha Owner or any other Party to this
Agreement.
Upon any termination as provided for in this Section 9.1(b), the
Parties shall have no further rights or obligations hereunder, other than those
that by their terms survive the termination of this Agreement.
9.2 Owner JV's and Lessee JV's Default; Liquidated Damages - Deposit.
(a) IF ANY OF OWNER JV
OR LESSEE JV (OR CINDAT WITH RESECT TO SECTION 7.1(i))
FAILS TO PERFORM AND IS IN BREACH OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT
AT OR PRIOR TO CLOSING
40
(FOR ANY REASON EXCEPT FAILURE BY HERSHA OWNER OR HERSHA LESSEE TO PERFORM
HEREUNDER) AND AS A RESULT OF SUCH FAILURE THE SALE OF THE PROPERTY IS NOT ABLE
TO BE CONSUMMATED AS CONTEMPLATED HEREUNDER ON THE CLOSING DATE,
HERSHA OWNER
SHALL BE ENTITLED, AS ITS SOLE REMEDY (EXCEPT WITH RESPECT TO ANY COVENANT OF
INDEMNITY BY OWNER JV, LESSEE JV AND CINDAT SET FORTH IN THIS AGREEMENT WHICH
FAILURE IS COVERED IN SUBSECTION (i) HEREINABOVE), TO TERMINATE THIS AGREEMENT
(EXCEPT THE PROVISIONS HEREOF AND THEREOF WHICH EXPRESSLY SURVIVE TERMINATION)
AND RECOVER OR RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES AND NOT AS PENALTY, IN
FULL SATISFACTION OF CLAIMS AGAINST OWNER JV, LESSEE JV AND CINDAT HEREUNDER.
HERSHA OWNER AND HERSHA LESSEE, ON THE ONE HAND, AND OWNER JV, LESSEE JV AND
CINDAT, ON THE OTHER HAND, AGREE THAT HERSHA OWNER'S DAMAGES RESULTING FROM
OWNER JV'S, LESSEE JV'S OR CINDAT'S DEFAULT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT, IF NOT IMPOSSIBLE, TO ESTIMATE AND DETERMINE, AND THAT THE DEPOSIT IS
A FAIR AND REASONABLE ESTIMATE OF THOSE DAMAGES WHICH HAS BEEN AGREED TO IN AN
EFFORT TO CAUSE THE AMOUNT OF SUCH DAMAGES TO BE CERTAIN, AND THAT THE PAYMENT
OF THE DEPOSIT TO HERSHA OWNER AS LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES
PROVIDED FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED
TO CONSTITUTE LIQUIDATED DAMAGES TO HERSHA OWNER. BY PLACING THEIR INITIALS
BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE
ABOVE, THE REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED