MONEY.
IF THE REINSTATEMENT AND SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND
SALE AND JOINT ESCROW INSTRUCTIONS (THE "AMENDMENT"), THE LLC AGREEMENT AND THE
ASSIGNMENT ARE EXECUTED, THEN BH INVESTOR SHALL BE RESPONSIBLE FOR THE PAYMENT
OF THE AMENDMENT DEPOSIT OF EARNEST MONEY AS SUCH TERM IS DEFINED IN THE
CONTRACT IN THE AMOUNT OF ONE MILLION THREE HUNDRED SIXTY-SEVEN THOUSAND TWO
HUNDRED THIRTY DOLLARS ($1,367,230.00).
WITHIN THREE (3) BUSINESS DAYS AFTER
THE EXECUTION OF THE AMENDMENT, BH INVESTOR SHALL PAY TO CP IN IMMEDIATELY
AVAILABLE FUNDS THE AMOUNT OF SEVENTY-SEVEN THOUSAND SEVEN HUNDRED SEVENTY
DOLLARS ($77,770.00), REPRESENTING THE REMAINDER OF BH INVESTOR'S PRO-RATA SHARE
OF THE FIRST $50,000 DEPOSIT, THE INITIAL DEPOSIT AND THE AMENDMENT DEPOSIT OF
EARNEST MONEY AS SUCH TERMS ARE DEFINED IN THE AMENDMENT.
CP SHALL ASSIGN ITS
RIGHTS IN AND TO THE DEPOSIT, AS SUCH TERM IS DEFINED IN THE AMENDMENT, TO THE
ACQUIRING ENTITY.
IF THE AMENDMENT, THE LLC AGREEMENT AND THE ASSIGNMENT ARE
NOT EXECUTED, BH INVESTOR SHALL HAVE NO OBLIGATION TO MAKE EITHER OF THE
PAYMENTS REFERENCED HEREIN IN THIS SECTION 3 AND THIS AGREEMENT SHALL BE OF NO
FURTHER FORCE OR EFFECT.
4.
REPRESENTATIONS OF CP.
CP HEREBY
REPRESENTS AND WARRANTS TO BH INVESTOR AS FOLLOWS:
Attached hereto as Exhibit C is a true, correct and complete copy of the
Contract and all amendments thereto, as it existed at the time of termination,
and the Contract will be in full force and effect upon the execution of the
Amendment and has not been amended or modified except as set forth on Exhibit
C.
To CP's knowledge, CP was not in default under the Contract at the time of
termination.
5.
TIME OF ESSENCE.
SELLER AND PURCHASER
AGREE THAT TIME IS OF THE ESSENCE OF THIS AGREEMENT.
6.
ASSIGNMENT.
NEITHER CP NOR BH INVESTOR
MAY ASSIGN ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT TO ANY OTHER PERSON OR
ENTITY WITHOUT OBTAINING THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED,
HOWEVER, THAT BH INVESTOR MAY ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER THIS
AGREEMENT TO ANY PERSON OR ENTITY AFFILIATED WITH BH INVESTOR IN ANY WAY,
INCLUDING, WITHOUT LIMITATION, ANY ENTITY OR FUND FORMED OR SPONSORED BY BH
INVESTOR.
7.
SUCCESSORS AND ASSIGNS.
THE TERMS AND
PROVISIONS OF THIS AGREEMENT ARE TO APPLY TO AND BIND THE PERMITTED SUCCESSORS
AND ASSIGNS OF THE PARTIES HERETO.
8.
ENTIRE AGREEMENT.
THIS AGREEMENT,
INCLUDING THE EXHIBITS, CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES
PERTAINING TO THE SUBJECT MATTER HEREOF AND FULLY SUPERSEDES ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES PERTAINING TO SUCH SUBJECT
MATTER.
9.
FURTHER ASSURANCES.
EACH PARTY AGREES
THAT IT WILL WITHOUT FURTHER CONSIDERATION EXECUTE AND DELIVER SUCH OTHER
DOCUMENTS AND TAKE SUCH OTHER ACTION, WHETHER PRIOR OR SUBSEQUENT TO CLOSING, AS
MAY BE REASONABLY REQUESTED BY THE OTHER PARTY TO CONSUMMATE MORE EFFECTIVELY
THE PURPOSES OR SUBJECT MATTER OF THIS AGREEMENT.
10.
ATTORNEYS' FEES.
IN THE EVENT OF ANY
CONTROVERSY, CLAIM OR DISPUTE BETWEEN THE PARTIES AFFECTING OR RELATING TO THE
SUBJECT