PROCEEDS FROM THE SALE OF THE PROPERTY AS PERMITTED
BY SECTION 1.7(G), THE MEZZANINE LOANS ARE NOT PAID IN FULL, PURCHASER SHALL
CAUSE TO BE DISCHARGED THE REMAINING BALANCE OF THE MEZZANINE LOANS.
5.3
INDEMNITY LIMITS.
NEITHER PURCHASER NOR SELLERS WILL BE LIABLE UNDER SECTION 5.1(B)(3)
OR 5.2(A)(1) IN RESPECT OF (I) HAZARDOUS MATERIALS EXISTING ON THE PROPERTY
(INCLUDING IN GROUND WATER, SOIL OR SOIL VAPOR OR IN THE AMBIENT AIR OVER THE
PROPERTY) AS OF THE CLOSING, OR (II) DEFECTS IN THE IMPROVEMENTS THAT EXIST AS
OF CLOSING OR NON-COMPLIANCE OF THE IMPROVEMENTS WITH APPLICABLE LAWS THAT EXIST
AS OF THE CLOSING (BUT WITHOUT LIMITING ANY RIGHTS THAT THE PROJECT OWNER MAY
HAVE UNDER THE CONSTRUCTION CONTRACT).
THE LIMITATIONS OF THIS SECTION 5.3 DO
NOT EXTEND TO PERSONAL INJURY, LOSS OF PROPERTY (OTHER THAN THE PROPERTY) OR
DEATH THAT RESULTS FROM HAZARDOUS MATERIALS, DEFECTS IN THE IMPROVEMENTS OR
NONCOMPLIANCE OF THE IMPROVEMENTS WITH
27
APPLICABLE LAWS, RESPONSIBILITY FOR WHICH WILL BE APPORTIONED BETWEEN SELLER AND
PURCHASER IN ACCORDANCE WITH SECTION 5.1(B)(3) OR 5.2(A)(1) BASED ON THE TIME
THAT THE INJURY, LOSS OR DEATH OCCURS.
..
5.4
ARBITRATION.
EXCEPT WITH RESPECT TO ANY
ACTION BY PURCHASER FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT OR ANY OTHER
ACTION FOR INJUNCTIVE RELIEF, WHICH ACTIONS SHALL BE COMMENCED AND RESOLVED IN A
COURT OF COMPETENT JURISDICTION, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE BREACH THEREOF, SHALL BE SETTLED BY BINDING ARBITRATION IN DALLAS, TEXAS,
BY A SINGLE ARBITRATOR REASONABLY SATISFACTORY TO PURCHASER AND SELLER
(PROVIDED, HOWEVER, THAT IF PURCHASER AND SELLER ARE UNABLE TO AGREE UPON A
MUTUALLY SATISFACTORY ARBITRATOR, THEN THE ARBITRATOR SHALL BE SELECTED IN
ACCORDANCE WITH THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION),
IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING
LARGE, COMPLEX COMMERCIAL DISPUTES THEN IN EFFECT.
PURCHASER AND SELLER WILL
SHARE EQUALLY THE TOTAL EXPENSE CHARGED BY THE AMERICAN ARBITRATION ASSOCIATION
AND THE ARBITRATOR RELATED TO SUCH ARBITRATION AS THOSE EXPENSES BECOME DUE; BUT
EACH PARTY SHALL BEAR ITS OWN LEGAL, ACCOUNTING AND ALL OF ITS OTHER FEES AND
EXPENSES RELATED TO THE ARBITRATION.
SUCH ARBITRATION AND DETERMINATION SHALL
BE FINAL AND BINDING ON PURCHASER AND SELLER, JUDGMENT MAY BE ENTERED UPON SUCH
DETERMINATION AND AWARD IN ANY COURT HAVING JURISDICTION THEREOF, AND PURCHASER
AND SELLER AGREE THAT NO APPEALS SHALL BE TAKEN THEREFROM EXCEPT AS SET FORTH IN
9 U.S.C. §10.
NOTICE OF A DEMAND FOR ARBITRATION OF ANY DISPUTE SUBJECT TO
ARBITRATION BY ONE PARTY SHALL BE MADE IN WRITING AND SIMULTANEOUSLY SERVED ON
THE OTHER PARTIES AND FILED WITH THE AMERICAN ARBITRATION ASSOCIATION.
THE
PARTIES AGREE THAT AFTER ANY SUCH NOTICE HAS BEEN FILED, THEY SHALL, BEFORE THE
HEARING THEREOF, MAKE DISCOVERY AND DISCLOSURE OF ALL MATTERS RELEVANT TO SUCH
DISPUTE, TO THE EXTENT AND IN THE MANNER PROVIDED BY THE APPLICABLE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION.
THE ARBITRATOR'S DETERMINATION WITH RESPECT
TO DISCOVERY SHALL BE