CLOSING OCCURS, (I) ANY ACTIVITY OR
EVENT INVOLVING THE PROJECT AND OCCURRING BEFORE CLOSING, OTHER THAN AS A
CONSEQUENCE OF ACTS, OR WHEN UNDER A DUTY TO ACT, OMISSIONS OF BH INVESTOR OR
ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, CONSULTANTS OR
CONTRACTORS, (II) FAILURE OF THE
22
PROJECT OWNER TO PERFORM ANY OBLIGATION UNDER ANY CONTRACT PRIOR TO CLOSING,
(III) MISAPPLICATION OF DEPOSITS PRIOR TO CLOSING, OR (IV) ANY LIABILITY OR
OBLIGATION OF THE PROJECT OWNER EXISTING AS OF CLOSING OTHER THAN PERMITTED
OBLIGATIONS;
(4)
ANY LIABILITY OR LOSS OF ANY TYPE ARISING OUT OF WORK PERFORMED ON
THE PROJECT BY PROJECT OWNER OR BY PROJECT OWNER'S AGENTS AND CONTRACTORS
INCLUDING ALL CONSTRUCTION AND DEVELOPER RELATED LIABILITY; AND
(5)
ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY OF THE FOREGOING.
The obligations of Transferors under Section 5.1(b) shall survive the Closing
for nine (9) months following the Closing.
Notwithstanding the preceding
sentence, any indemnity which may be sought under this Section 5.1(b) shall
survive the time at which it would otherwise terminate pursuant to the foregoing
provisions of this Section 5.1(b), if notice of the inaccuracy or breach thereof
giving rise to such right to indemnity shall have been given to the Transferors
by BH Investor prior to such time.
Any liability as a result of an obligation
to indemnify pursuant to Section 5.1(b)(2), (3) (4) or (5), respectively, shall
not exceed One Million Dollars ($1,000,000.00).
(C)
SPECIFIC PERFORMANCE.
IT IS UNDERSTOOD THAT TRANSFERORS' BREACH
OF THIS AGREEMENT MAY MATERIALLY AND IRREPARABLY HARM BH INVESTOR, AND THAT
MONEY DAMAGES MAY ACCORDINGLY NOT BE AN ADEQUATE REMEDY FOR ANY BREACH OF THIS
AGREEMENT, AND THAT BH INVESTOR, IN ITS SOLE DISCRETION AND IN ADDITION TO ANY
OTHER REMEDIES IT MAY HAVE AT LAW OR IN EQUITY MAY APPLY TO ANY COURT OF LAW OR
EQUITY OF COMPETENT JURISDICTION (WITHOUT POSTING ANY BOND OR DEPOSIT) FOR
SPECIFIC PERFORMANCE OR OTHER INJUNCTIVE RELIEF IN ORDER TO ENFORCE OR PREVENT
ANY VIOLATIONS OF THIS AGREEMENT.
5.2
TRANSFERORS' REMEDIES.
Transferors' sole and exclusive remedy for any BH Investor breach of,
misrepresentation under, or nonperformance of this Agreement, or any other act
or omission of BH Investor or its affiliates related to this Agreement or the
transactions contemplated hereby including, without limitation, the failure of
BH Investor to consummate the transactions contemplated hereby, shall be to
terminate this Agreement, and Transferors shall have no other remedy at law or
equity pursuant to this Agreement or otherwise against any person or entity, any
such other remedy being expressly waived. BH Investor's breach of,
misrepresentation under, or nonperformance of this Agreement, or any other act
or omission of Transferee or its affiliates related to this Agreement or the
transactions contemplated hereby, shall not affect the rights and obligations
under the Mezzanine Loan.
Notwithstanding the foregoing, in the event that this
Agreement has not been terminated pursuant to Section 1.9 (other than
termination pursuant to Section 1.9(a)(3) or pursuant to Section 1.9(a)(4) only
in