Common use of Purchaser’s Default Clause in Contracts

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to Purchaser.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller In the event (i) Purchaser fails or refuses or fails to tender performance and consummate Closing when required to do so in compliance with the purchase terms of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in any material respect fails to perform or otherwise breaches any of its other material obligations.or agreements as obligations under this Agreement and when required such failure or breach continues for a period of ten (10) days after written notice from Seller Parties specifying such failure or breach in reasonable detail, the same shall constitute a “Purchaser Default” hereunder. In the event of any Purchaser Default, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein the Seller’s Parties shall have been materially incorrect when made or when ratified at Closing, then Sellerbe entitled, as its their sole and exclusive remedy, shall have the right to terminate this Agreement by giving upon written notice to Purchaser and receive payment from Purchaser of the Escrow Agent written notice thereofDD Deposit, in which event neither party shall have the reimbursement of up to Twenty Five Thousand and No/100 Dollars ($25,000.00) for any further rightsout-of-pocket costs of any third parties, duties or obligations hereunder including any expenses incurred by Seller Parties to obtain the consent HCR and MidCap (except including their attorney fees) and assignment and delivery to the extent this Agreement may specifically provide Seller Parties, for their future use, of all Due Diligence Materials. Each of the survival Seller Parties and Purchaser acknowledge and agree that Purchaser’s delivery of certain obligations of Purchaser) such funds and Seller Due Diligence Materials shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as deemed liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from for Purchaser’s breach of this Agreement by Purchaser would be difficult or impossible accurately Agreement, it being further agreed that the actual damages to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, Seller Parties in the event of such breach are impractical to ascertain and the foregoing sum is a reasonable estimate thereof. None of the Seller Parties shall have any default by Purchaser right to specifically enforce Purchaser’s obligations under this Agreement due nor to a breach after Closing seek or otherwise collect any termination hereof of any covenant or indemnity which survives the Closing or any termination hereofactual, lost profit, punitive, consequential, treble, or if Seller other damages from or against Purchaser, except for the indemnity obligations of Purchaser expressly set forth in this Agreement. In no event shall discover after Closing that any warranty officer, director, agent or representation made by employee of Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have its partners be personally liable for any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates Purchaser’s obligations under this Agreement pursuant or the documents to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to be delivered at the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to PurchaserClosing.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured a default by Seller Sellers (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to transactions contemplated by this Agreement, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or obligations or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then SellerSellers, as its their sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent Title Company written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller Sellers shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller Sellers and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to SellerSellers. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller Sellers shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller Sellers shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to Purchaser.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements obligations as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified made, then Seller shall give Purchaser and the Title Company written notice specifying the nature of the default, and Purchaser shall have ten (10) days from receipt of Seller's notice within which to cure the specified default. If at Closingthe end of the ten (10) day period the default is still not cured, then Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent Title Company written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller). Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to Purchaser.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to If Purchaser hereunder to do so or because of an uncured shall default by Seller (ia) Purchaser refuses or fails to consummate in the purchase payment of the Hotel pursuant Purchase Price or the performance of any of its other obligations to this Agreement, be performed on the Closing Date or (iib) Purchaser shall otherwise fail in any material respect to perform the performance of any of its material obligations.or agreements as and when required hereunderobligations to be performed prior to the Closing Date and, or ifwith respect to any default under this clause (b) only, at such default shall not be cured on or prior to Closingthe date that is five (5) Business Days after written notice to Purchaser, any representation or warranty made by or on behalf of Purchaser herein Purchaser’s attorney and Escrow Agent, then Seller shall have the right to treat this Agreement as having been materially incorrect when made or when ratified at Closing, then breached by Purchaser and Seller, as its ’s sole and exclusive remedy, remedy on account of such breach shall have be the right to terminate this Agreement by giving written notice to Purchaser or Purchaser’s attorney. Upon such termination (i) Purchaser shall forfeit all rights and claims with respect to the Property pursuant to this Agreement and to the Downpayment and (ii) Escrow Agent written notice thereof, in which event shall promptly remit the Downpayment to Seller; and thereupon neither party shall have any further rightsobligations or liabilities hereunder except those that expressly survive termination of this Agreement. In the event the payment of the Downpayment to Seller is delayed in connection with any litigation, duties or obligations hereunder (except then, in addition to receipt of the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Downpayment, Seller shall be entitled to receive judgment interest from Purchaser from date on which the Xxxxxxx Money from Downpayment would have otherwise been payable to Seller, but for such litigation (and such entitlement of Seller and obligation of Purchaser shall survive the Escrow Agent as liquidated damages, termination of this Agreement). Seller and Purchaser hereby acknowledging agree that payment of the amount of Downpayment to Seller shall be deemed to be fair and adequate, but not excessive, liquidated damages resulting from breach of this Agreement by (and not a penalty) based upon the following considerations which Seller and Purchaser agree would be difficult or impossible accurately constitute damages to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of Seller for any default by Purchaser but which are impossible to quantify, to wit: (A) the removal of the Property from the real estate market together with the uncertainty of obtaining a new purchaser at the same or greater purchase price; (B) the expenses incurred by Seller, including (but not by way of limitation) attorneys’ fees, taxes, mortgage interest, and other items incidental to the maintenance of the Property until it is eventually sold; and (C) all other expenses incurred by Seller as a result of Purchaser’s default. The Downpayment is not intended to cap amounts, if any, due Seller in respect of any indemnification from Purchaser that survives termination of or Closing under this Agreement Agreement. In the event of such termination, Purchaser shall promptly destroy all due diligence materials, reports and studies delivered to a breach after Closing Purchaser by Seller or any termination hereof broker, agent, representative or employee of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by (without Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaserretaining copies thereof), and the Letter of Credit shall be returned to Purchaser.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements obligations as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified made, then Seller shall give Purchaser and the Title Company written notice specifying the nature of the default, and Purchaser shall have ten (10) days from receipt of Seller's notice within which to cure the specified default. If at Closingthe end of the ten (10) day period the default is still not cured, then Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent Title Company written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit Xxxxxxx Money to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that HOTEL PURCHASE AGREEMENT - Page 29 ------------------------ any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit Xxxxxxx Money together with all interest earned thereon shall be returned to Purchaser.

Purchaser’s Default. IfPurchaser and Seller acknowledge that it would be extremely impracticable and difficult to ascertain the actual damages which would be suffered by Seller if Purchaser defaults under this Agreement. Accordingly, at or prior to Closing, for any reason ------------------- if Purchaser has defaulted (other than termination an insignificant or immaterial default) in the performance of its obligations hereunder (including without limitation, a default in Purchaser's obligation to deliver to Seller those documents and other items required under Section 8.2 hereof pursuant or to make settlement on the Closing Date) and Seller shall have not defaulted hereunder (other than an insignificant or immaterial default), then at the end of the ten (10) Business Day period following the receipt by Purchaser of a right granted written statement from Seller stating that Purchaser is in default hereunder, unless Purchaser shall have cured such default during such ten (10) Business Day period, as Seller's sole and exclusive remedy, the Deposit (together with all interest thereon) shall be by Escrow Agent paid over, transferred and assigned to Purchaser hereunder Seller as full, complete, agreed and liquidated damages, and thereupon this Agreement shall terminate and neither party shall have any further obligations hereunder, except for those specifically set forth in this Agreement to do so or because survive termination. Seller's retention of an uncured the Deposit (and interest) is intended not as a penalty, but as full liquidated damages, and is Seller's sole and exclusive remedy in the event of default by Purchaser in its obligation to close title hereunder, and (respecting a default by Purchaser in its obligations to close title as provided in this Agreement) Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser (i) for specific performance of this Agreement or (ii) to recover actual damages for default by Purchaser refuses in its obligation to close title as provided in this Agreement. This Section 14.2 sets forth remedies for failure to close and it not intended to apply to remedies Seller may have with respect to Purchaser's obligations (i) which survive Closing or fails to consummate the purchase termination of the Hotel pursuant to this Agreement, or (ii) which are set forth in or result from any instruments or documents executed and delivered by Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to Purchaser.

Purchaser’s Default. IfIn the event that Purchaser shall be in breach or default of any of its obligations under this Agreement thus preventing, at or prior otherwise fail to Closingproceed to, for any reason ------------------- other than termination hereof pursuant Closing in accordance herewith, and Seller is ready, willing and able to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to close under this Agreement, or then Seller may terminate this Agreement by delivering written notice thereof to Purchaser, and shall retain the Deposit (ii) Purchaser shall otherwise fail in plus any material respect to perform any of its material obligations.or agreements accrued interest thereon), as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then Seller, as for its sole and exclusive remedyremedy in lieu of all other rights and remedies (including the right of specific performance), and as Seller's liquidated damages and not as a penalty, for Purchaser's failure to close and breach of this Agreement, and Seller, thereafter, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent written notice thereof, in which event neither party shall not have any further rightsliability or obligation to Purchaser hereunder, duties nor shall Purchaser have any further liability or obligation to Seller hereunder, except for any liabilities or obligations hereunder (except to arising under Section 12(c) hereof. Any attendance or appearance at the extent this Agreement may specifically provide Closing by either party shall not nullify or void the provision herein for the survival alternative performance by payment of certain obligations of Purchaser) liquidated damages as Seller's sole and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, exclusive remedy. Seller and Purchaser hereby acknowledging each agrees that the amount of actual damages resulting to Seller from Purchaser's breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertainmeasure because of the uncertainties of the real estate market and fluctuations of property values and differences with respect thereto, and that the Title Company shall immediately deliver Deposit is a reasonable estimate of damages. In addition, notwithstanding anything to the Letter of Credit to Seller. Notwithstanding contrary in the foregoing, if and in the event that Purchaser has failed to pay the full amount of the Deposit as calculated in accordance with Section 2 hereof (including any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereofadditional deposits required hereunder), or if then Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have may pursue any and all rights and remedies which may be available at under law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant including the right to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), compel specific performance and the Letter of Credit shall be returned right to Purchasercollect damages.

Purchaser’s Default. If, at or prior to Closing, In the event Purchaser terminates this Purchase Contract following the Feasibility Period for any reason ------------------- other than Seller's default, including any failure of satisfaction of a condition precedent to Purchaser's obligation to close, and Seller's inability to convey title as required by this Purchase Contract, or defaults hereunder prior to the Closing Date and consummation of the Closing does not occur by reason of such termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Purchaser, including any failure of satisfaction of a condition precedent to Seller's obligation to close, Seller (i) and Purchaser refuses or fails agree that it would be impractical and extremely difficult to consummate estimate the purchase damages which Seller may suffer. Therefore, Seller and Purchaser hereby agree that, except as expressly set forth herein and except for the Purchaser's liability under Sections 5.3 and 5.4, provided that Seller has not terminated this Purchase Contract and is not otherwise in default hereunder, the reasonable estimate of the Hotel pursuant to total net detriment that Seller would suffer in the event that Purchaser terminates this Agreement, Purchase Contract or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements as and when required hereunder, or if, at or defaults hereunder prior to Closing, any representation or warranty made by or on behalf of Purchaser herein the Closing Date is and shall have been materially incorrect when made or when ratified at Closing, then Sellerbe, as its Seller's sole and exclusive remedyremedy (whether at law or in equity), shall have the right to terminate this Agreement by giving Purchaser and receive from the Escrow Agent written notice thereofand retain the full amount of the Deposit. The payment and performance of the above as liquidated damages is not intended as a forfeiture or penalty within the meaning of applicable law and is intended to settle all issues and questions about the amount of damages suffered by Seller in the applicable event, in which event except as expressly set forth herein, and subject to and except for Purchaser's liability under Sections 5.3 and 5.4, irrespective of the time when the inquiry about such damages may take place. Upon any such failure by Purchaser hereunder, this Purchase Contract shall be terminated, and neither party shall have any further rights, duties rights or obligations hereunder (hereunder, each to the other, except as expressly set forth herein, and subject to and except for Purchaser's liability under Sections 5.3 and 5.4 above, and the right of Seller to collect such liquidated damages to the extent this Agreement may specifically provide for the survival of certain obligations of not theretofore paid by Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to Purchaser.12.2

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent Agreement as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to Purchaser.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or If (a) the sale contemplated hereby is not consummated because of an uncured a default by Purchaser in its obligation to purchase the Membership Interests in accordance with the terms of this Agreement after Seller has performed or tendered performance of its obligations in all material respects in accordance with this Agreement; or (ib) Purchaser refuses otherwise materially defaults under this Agreement and such default shall continue for ten (10) calendar days after receipt of written notice thereof from Seller, provided that no notice shall be required for a failure to timely participate in Closing or fails to consummate the purchase of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in make any material respect to perform any of its material obligations.or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at ClosingDeposit, then as Seller, as its ’s sole and exclusive remedy, shall have the right to Seller may terminate this Agreement by giving Purchaser and the Escrow Agent written notice thereofto Purchaser, in which event neither party shall have any further rights, duties or obligations hereunder (except to whereupon the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller Deposit shall be entitled paid to receive the Xxxxxxx Money from the Escrow Agent and retained by Seller as liquidated damages; and except for the applicable Surviving Obligations, Seller and Purchaser hereby acknowledging shall have no further obligations to each other. The parties hereto, before entering into this Agreement, have been concerned with the fact that substantial damages will be suffered by Seller if Purchaser should materially default under this Agreement. Purchase and Seller acknowledge that the amount of damages resulting from to Seller upon a material breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertaindetermine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the Title Company shall immediately deliver damages that would be suffered by Seller if the Letter transaction should fail to close and that such estimate is reasonable under the circumstances existing as of Credit the Effective Date and under the circumstances that Seller and Purchaser reasonably anticipate would exist at the time of such breach. The parties, having made a diligent endeavor to Seller. Notwithstanding ascertain the foregoing, actual compensatory damages which Seller would suffer in the event of any Purchaser’s material default under this Agreement, hereby agree that the reasonable estimate of said damages is the sum equal to the amount of the Deposit. Therefore, if the sale contemplated hereby shall fail to close because of a default by Purchaser in its obligation to purchase the Membership Interests in accordance with the terms of this Agreement after Seller has performed or tendered performance of all of its obligations in all material respects in accordance with this Agreement or Purchaser shall otherwise materially default under this Agreement, Seller shall be entitled to and shall retain the entire Deposit as liquidated damages and as its sole remedy at law or in equity. The amount of the liquidated damages has been established by the parties as the amount of monetary damages Seller will suffer based solely upon a material default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if and Seller shall discover after be entitled to recover no other damages from Purchaser. Notwithstanding anything herein to the contrary set forth in this Agreement, nothing set forth herein shall (a) limit or impair any remedies that may be available to Seller with respect to Purchaser’s obligations or liabilities for any of the applicable Surviving Obligations of Purchaser except as otherwise provided in this Agreement or in the applicable Closing that any warranty or representation made Documents entered into by Purchaser herein and Seller; or (b) be construed to limit Seller’s rights to make a claim against any insurance policy that Purchaser was required to obtain pursuant to Section 5 or that Purchaser otherwise maintains for or in connection with the transaction contemplated herein was materially incorrect either any breaches by Purchaser of its obligations under Section 5.2 or breached when made, Seller shall have any and all rights and remedies available at law or Purchaser’s indemnification obligations set forth in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to PurchaserSection 5.2.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate the purchase Section 8.1 of the Hotel pursuant Agreement is hereby deleted and replaced with the following: “If Purchaser defaults under this Agreement, including in its obligation to proceed to Closing in accordance with this Agreement, or if any condition set forth in Section 6.3 is not satisfied due to a default by Purchaser and Seller elects not to proceed to Closing, and if such default is not cured and/or such condition is not satisfied by the later of the (i) the Closing Date and (ii) the date fifteen (15) business days after Seller has given Purchaser shall otherwise fail in any material respect to perform any written notice of its material obligations.or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closingthe same, then Seller shall be entitled to total damages from Purchaser equal to Seven Million and 00/100 Dollars ($7,000,000.00) as full and complete liquidated damages (the “Purchaser LDs”), and as the exclusive and sole right and remedy of Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent written notice thereof, in which event event, this Agreement shall terminate and neither party shall have any further rights, duties obligations or obligations hereunder (except liabilities to the extent other party, except for obligations that expressly survive termination of this Agreement may specifically provide for Agreement. Upon such a termination, the survival of certain obligations of Purchaser) and Seller shall be entitled to receive retain the Xxxxxxx Money from Deposit, and the Escrow Agent Deposit shall be credited against, and counted toward, Purchaser’s obligation under this Section to pay the Purchaser LDs to Seller. Purchaser acknowledges that Seller’s actual damages caused by Purchaser’s default in its obligation to proceed to Closing would be difficult to determine precisely and that the Purchaser LDs, as liquidated damages, constitute a fair and reasonable approximation. Seller and Purchaser hereby acknowledging that the amount waives any right to recover damages (whether actual, consequential, punitive or other) as a result of damages resulting from breach of Purchaser’s default in its obligation to proceed to Closing in accordance with this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event as a result of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereofconditions set forth in Section 6.3 not being satisfied, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to PurchaserPurchaser LDs as described in this Section 8.1.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to If Purchaser hereunder to do so or because of an uncured shall (a) default by Seller (i) Purchaser refuses or fails to consummate in the purchase payment of the Hotel pursuant Purchase Price or if Purchaser shall default in the performance of any of its other obligations to this Agreement, be performed on the Closing Date or (iib) Purchaser shall otherwise fail default in any material respect to perform the performance of any of its material obligations.or agreements as and when required hereunderobligations to be performed prior to the Closing Date and, or ifwith respect to any default under this clause (b) only, at such default shall not be cured on or prior to Closingthe date that is five (5) Business Days after written notice to Purchaser, any representation or warranty made by or on behalf of Purchaser herein Purchaser's attorney and Escrow Agent, then Seller shall have the right to treat this Agreement as having been materially incorrect when made or when ratified at Closing, then breached by Purchaser and Seller, as its 's sole and exclusive remedy, remedy on account of such breach shall have be the right to terminate this Agreement by giving written notice to Purchaser or Purchaser's attorney. Upon such termination (i) Purchaser shall forfeit all rights and claims with respect to the Property pursuant to this Agreement and to the Downpayment and (ii) Escrow Agent written notice thereof, in which event shall promptly remit the Downpayment to Seller as Seller's sole and exclusive remedy for a default by Purchaser; and thereupon neither party shall have any further rights, duties obligations or obligations liabilities hereunder (except to the extent those that expressly survive termination of this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Agreement. Seller and Purchaser hereby acknowledging agree that payment of the amount of Downpayment to Seller shall be deemed to be fair and adequate, but not excessive, liquidated damages resulting from breach of this Agreement by (and not a penalty) based upon the following considerations which Seller and Purchaser agree would be difficult or impossible accurately constitute damages to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of Seller for any default by Purchaser but which are impossible to quantify, to wit: (A) the removal of Seller's leasehold interest in the Property from the real estate market together with the uncertainty of obtaining a new purchaser at the same or greater purchase price; (B) the expenses incurred by Seller, including (but not by way of limitation) attorneys' fees, taxes, mortgage interest, and other items incidental to the maintenance of the Property until it is eventually sold; and (C) all other expenses incurred by Seller as a result of Purchaser's default. Notwithstanding the foregoing the Downpayment is not intended to cap amounts, if any, due Seller in respect of any indemnification from Purchaser that survives termination of or Closing under this Agreement Agreement, including without limitation Purchaser's indemnity under Sections 4 and 26 of this Agreement. In the event of such termination, Purchaser shall immediately destroy or return to Seller for cancellation all due diligence materials, reports and studies delivered to a breach after Closing Purchaser by Seller or any termination hereof broker, agent, representative or employee of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by (without Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaserretaining copies thereof), and the Letter of Credit shall be returned to Purchaser.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to If Purchaser commits a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due and fails to a breach after cure such default within fifteen (15) days of receipt of written notice thereof from Seller, and Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity fails to occur by reason of such default, then in any such event, Title Company may be instructed by Seller to cancel the Escrow and Seller shall thereupon be released from its obligations hereunder. Purchaser and Seller agree that based upon the circumstances now existing, known and unknown, it would be impractical or extremely difficult to establish Seller's damage by reason of Purchaser's default. Accordingly, Purchaser and Seller agree that it would be reasonable at such time to award Seller "liquidated damages" equal to the total of all Xxxxxxx Money placed into escrow by purchaser pursuant to this Agreement less any of Title Company's charges. Seller and Purchaser acknowledge and agree that the applicable foregoing amounts of liquidated damages are reasonable as liquidated damages and shall be Seller's sole and exclusive remedy in lieu of any other relief, right or remedy, at law or in equity, to which Seller might otherwise be entitled by reason of Purchaser's default. Accordingly, if Purchaser fails to complete the purchase of the Property and such failure (a) continues for fifteen (15) days following receipt of written notice thereof from Seller and (b) constitutes a breach of this Agreement, then Seller may instruct Title Company to cancel the Escrow whereupon Seller shall be relieved from all liability hereunder, and, promptly following Title Company's receipt of such instruction, Title CORE/3502136.00 I 6/178404538.4 -13- DocuSign Envelope ID: 013404DF-AB60-4325-B59F-F15BDBD4A580 Company shall (i) cancel the Escrow, (ii) pay all of Title Company's charges from the total amount ofthe Xxxxxxx Money then held by Title Company and (iii) disburse to Seller the remaining balance of the Xxxxxxx Money. If Purchaser terminates Closing fails to occur for any reason other than Purchaser's default under this Agreement pursuant to a right granted Agreement, Title Company shall disburse to Purchaser hereunder all of the Xxxxxxx Money (less the Independent Consideration) then held by Title Company, plus the accrued interest thereon, less Purchaser's share of escrow cancellation charges. Without limiting the foregoing provisions of this paragraph, Seller waives any and all rights which Seller otherwise would have had under applicable law or in equity to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent specifically enforce this Agreement may specifically provide for the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to PurchaserAgreement.

Purchaser’s Default. If, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to If the Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or fails to consummate pay on due date any instalment or other moneys which the purchase Purchaser may in terms hereof (provided that no notice need be given if the breach is the non-payment of the Hotel pursuant to this Agreement, deposit in clause 5 of the schedule) or (ii) Purchaser shall otherwise fail in commits any material respect to perform other breach of any of its material obligations.or agreements as the terms and when required hereunderconditions of this agreement (or of any of the rules and regulations to which the Purchaser is subject in respect of the land and/or building, including the Unit), the Seller shall be entitled without prejudice to any other remedies that it may have at law, if the Purchaser fails to remedy such breach, default or if, at or prior to Closing, any representation or warranty made by or on behalf non- payment within 7 (seven) days of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent dispatch of written notice thereofper prepaid registered or certified post or delivery thereof by hand calling upon the Purchaser so to do: to cancel this agreement, retake possession of the Unit and: claim all damages suffered by reason of the Purchaser's breach of contract, in which event neither party shall have any further rightsevent, duties or obligations hereunder (except to pending the extent this Agreement may specifically provide for determination of such damages, the survival of certain obligations of Purchaser) and Seller shall be entitled to receive retain in pledge, as security for the Xxxxxxx Money from due payment by the Escrow Agent as liquidated Purchaser of such damages, all amounts paid by the Purchaser in terms of this agreement, and immediately the Seller's claim for damages shall have been established, there shall be set off and credited against such damages the aforesaid amounts retained by the Seller, provided that should such retained amounts exceed the damages so due to the Seller, the Seller and shall refund the excess to the Purchaser, but, that should the said damages exceed the said amounts retained, the Purchaser hereby acknowledging that shall be obliged to pay the amount of the shortfall to the Seller on demand; or claim payment of all arrear payments then due and retain all payments already made by the Purchaser to the Seller prior thereto, as rouwkoop for damages resulting from breach as agreed in clause 5 of the schedule of particulars; or to claim immediate payment of the full balance of the purchase price interest and all other amounts payable by the Purchaser in terms of this Agreement agreement. If this agreement is cancelled as hereinbefore provided, the Purchaser and all persons claiming a right of occupation through the Purchaser, shall forthwith be obliged to vacate the Unit and to deliver it to the Seller. No lease or other right of occupation in favour of the Purchaser shall be created or come into existence by virtue of this agreement. If the Purchaser would disputes the Seller's right to cancel this agreement, then pending the determination of such dispute, the Purchaser shall be difficult or impossible accurately obliged to ascertain, continue to pay all amounts payable by him in terms of this agreement on the due dates thereof and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all be entitled to accept such payments without prejudice to its rights and remedies available at law or in equity by reason of such defaultcancellation as aforesaid. If Purchaser terminates this Agreement pursuant such dispute is decided in favour of the Seller then such amounts so received by the Seller after cancellation as aforesaid shall be deemed to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except been paid to the extent Seller prior to cancellation. Should this Agreement may specifically provide agreement be cancelled in terms of this clause the Purchaser shall not be entitled to claim or receive any compensation whatsoever from the Seller for any alterations, additions or improvements effected to or on the survival of certain obligations of Purchaser), and the Letter of Credit shall be returned to PurchaserUnit save only as otherwise provided by law.

Purchaser’s Default. IfIf (i) Purchaser has not deposited the Xxxxxxx Money within the time period provided in Section 3.3(a), (ii) at or any time prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by Seller (i) Purchaser refuses or is in fails to consummate the purchase of the Hotel pursuant to this Agreement, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its covenants or obligations under this Agreement in any material obligations.or agreements as and when required hereunderrespect, which breach or default is not caused by a Seller Default, or if(iii) at Closing, Purchaser has not satisfied any one or more Seller Closing Conditions to be satisfied by Purchaser at or prior to ClosingClosing (each, any representation or warranty made by or on behalf a “Purchaser Default”), and Purchaser has not cured such Purchaser Default within three (3) Business Days after Purchaser’s receipt of written notice of such Purchaser herein shall have been materially incorrect when made or when ratified at ClosingDefault from Seller, then Seller, as its sole and exclusive remedy, shall have the right may elect (i) to terminate this Agreement by giving Purchaser and the Escrow Agent providing written notice thereofto Purchaser, in which event neither party case Purchaser shall cause Escrow Agent to disburse the Xxxxxxx Money to Seller within two (2) Business Days after such termination, and Seller and Purchaser shall have any no further rights, duties rights or obligations hereunder under this Agreement, except those which expressly survive such termination or (except ii) proceed to the extent Closing pursuant to this Agreement may specifically provide for the survival of certain obligations of Purchaser) and Agreement, in which case Seller shall be entitled deemed to receive have waived such Purchaser Default. Purchaser’s obligation to cause Escrow Agent to disburse the Xxxxxxx Money from the Escrow Agent as liquidated damages, Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter of Credit to Seller. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when madesurvive such termination. SELLER AND PURCHASER AGREE THAT IF THIS AGREEMENT IS TERMINATED PURSUANT TO THIS SECTION 12.2, Seller shall have any and all rights and remedies available at law or in equity by reason of such defaultTHE DAMAGES THAT SELLER WOULD SUSTAIN AS A RESULT OF SUCH TERMINATION WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO ASCERTAIN. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do soACCORDINGLY, then neither party shall have any further rightsSELLER AND PURCHASER AGREE THAT SELLER SHALL RETAIN THE XXXXXXX MONEY AS FULL AND COMPLETE LIQUIDATED DAMAGES (AND NOT AS A PENALTY) AND AS SELLER’S SOLE AND EXCLUSIVE REMEDY FOR SUCH TERMINATION; PROVIDED, duties or obligations hereunder (except to the extent this Agreement may specifically provide for the survival of certain obligations of Purchaser)HOWEVER, and the Letter of Credit shall be returned to PurchaserTHAT SELLER SHALL RETAIN ALL RIGHTS AND REMEDIES UNDER THIS AGREEMENT WITH RESPECT TO THOSE OBLIGATIONS OF PURCHASER WHICH EXPRESSLY SURVIVE SUCH TERMINATION.

Purchaser’s Default. If, at or prior to Closing, (i) Purchaser refuses or fails to consummate the purchase of the Property pursuant to this Agreement for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured a default by Seller (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to this AgreementSeller, or (ii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations.or agreements as and when required hereunder, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or shall become incorrect in any material respect, or (iii) Purchaser shall otherwise fail in any material respect to perform any of its material obligations as and when ratified at Closingrequired hereunder, then Seller shall give Purchaser and the Title Company written notice specifying the nature of the default, and Purchaser shall have fifteen (15) days from receipt of Seller's notice within which to cure the specified default; provided, however, if at the end of said fifteen (15) day period Purchaser is diligently pursuing the cure of the default but the default has not been cured, Purchaser shall have an additional period not to exceed fifteen (15) days within which to complete the cure of the default. If at the end of the initial fifteen (15) or, if applicable, additional fifteen (15) day period, the default is not still cured, the Seller, as its sole and exclusive remedy, shall have the right to terminate this Agreement by giving Purchaser and the Escrow Agent Title Company written notice thereof, in which event neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide provides for the survival of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent receive, as liquidated damages, damages (Seller and Purchaser hereby acknowledging that the amount of damages resulting from breach of this Agreement by Purchaser would be difficult or impossible to accurately to ascertain), the Xxxxxxx Money, and the Title Company shall immediately deliver to Seller the Letter of Credit to SellerXxxxxxx Money. Notwithstanding the foregoing, in the event of any default by Purchaser under this Agreement due to a material breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except to the extent this Agreement may specifically provide provides for the survival of certain obligations of Purchaser), and the Letter of Credit Xxxxxxx Money together with all interest earned thereon shall be returned to Purchaser.

Purchaser’s Default. IfIn the event of a material default hereunder by Purchaser or if the Closing fails to occur by reason of Purchaser's failure or refusal to perform its obligations hereunder, at or prior to Closing, for any reason ------------------- other than termination hereof pursuant to a right granted to Purchaser hereunder to do so or because of an uncured default by then Seller and/or U S WEST may (i) Purchaser refuses or fails to consummate the purchase of the Hotel pursuant to terminate this Agreement, or except for the Surviving Obligations, by written notice to Purchaser and (ii) Purchaser shall otherwise fail subject to and in any material respect to perform any of its material obligations.or agreements as accordance with the terms and when required hereunderlimitations set forth in Section 14.8 this Agreement, or if, at or prior to Closing, any representation or warranty made by or on behalf of Purchaser herein shall have been materially incorrect when made or when ratified at Closing, then Seller, as its sole initiate and exclusive remedy, shall have the right prosecute actions for specific performance. If Seller and/or U S WEST elects to terminate this Agreement by giving Purchaser pursuant to and in accordance with this Section 13.3 then this Agreement (other than the Escrow Agent written notice thereof, in which event Surviving Obligations) shall be terminated and neither party shall have any further rights, duties obligations or obligations hereunder (liabilities hereunder, except in respect of the Surviving Obligations; PROVIDED, HOWEVER, that except for the Surviving Obligations, if this Agreement is terminated, U S WEST is then entitled to the extent this Agreement may specifically provide for the survival then outstanding balance of certain obligations of Purchaser) and Seller shall be entitled to receive the Xxxxxxx Money from the Escrow Agent as Money, which shall constitute liquidated damagesdamages for all loss, damage and expenses suffered by Seller and Purchaser hereby acknowledging U S WEST that the amount of do not arise under or in connection with a Surviving Obligation, it being agreed that Seller's and U S WEST's damages resulting from breach of this Agreement by Purchaser would be difficult that do not arise under or in connection with a Surviving Obligation are impossible accurately to ascertain, and the Title Company shall immediately deliver the Letter except as otherwise expressly provided in this Agreement, Seller and U S WEST hereby expressly waive, relinquish and release any other right or remedy available to either of Credit to Seller. Notwithstanding the foregoingthem at law, in equity or otherwise by reason of Purchaser's failure to perform its obligations under this Agreement that do not arise under or in connection with a Surviving Obligation, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO RECOVER CONSEQUENTIAL, PUNITIVE, STATUTORY OR ANY OTHER DAMAGES. Seller and U S WEST expressly represent and affirm that based on numerous factors, including, without limitation, the event negotiations, the unique nature of the Facilities and uncertain market conditions, that make it impossible or extremely difficult to fix the actual damages suffered by Seller and U S WEST on account of any default by Purchaser under this Agreement due to a breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Seller shall discover after Closing that any warranty or representation made by Purchaser herein do not arise under or in connection with a Surviving Obligation, the transaction foregoing liquidated damages clause is a reasonable and enforceable provision of this Agreement. In no event shall Purchaser be entitled to any grace period or notice respecting the requirement on the part of Purchaser to close the transactions contemplated herein was materially incorrect or breached when made, Seller shall have any and all rights and remedies available at law or in equity by reason of such default. If Purchaser terminates under this Agreement pursuant to a right granted to Purchaser hereunder to do so, then neither party shall have any further rights, duties or obligations hereunder (except on the Closing Date. Notwithstanding anything to the extent contrary in this Agreement may specifically provide for Section 13.3, the survival of certain obligations of Purchaser), and the Letter of Credit Ongoing Lawsuit shall be returned to Purchaserdismissed in accordance with Section 6.3 of this Agreement.