OF THE PARTIES HEREUNDER, OR PREVENT ANY PARTY FROM RELYING ON THE
REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN.
THE NOTIFYING PARTY SHALL HAVE 30 DAYS FROM THE DATE OF SAID NOTICE TO CURE ANY
MATTER REFERRED TO IN SECTIONS 1.9(B)(I), (II) OR (III) PROVIDED THAT THE CURE
PERIOD SHALL NOT EXTEND BEYOND DECEMBER 31, 2007.
UPON RECEIPT OF A NOTICE
REFERRED TO IN SECTION 1.9(B)(IV), OR THE FAILURE OF THE NOTIFYING PARTY SO TO
CURE A MATTER REFERRED TO IN SECTIONS 1.9(B)(I), (II) OR (III), THE RECEIVING
PARTY MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO THE NOTIFYING PARTY.
(C)
EFFECT OF TERMINATION.
UPON TERMINATION OF THIS AGREEMENT
PURSUANT TO THIS ARTICLE, NO PARTY SHALL HAVE ANY CONTINUING OBLIGATION TO THE
OTHER PARTY ARISING OUT OF THIS
10
AGREEMENT, OR OUT OF ACTIONS TAKEN IN CONNECTION WITH THIS AGREEMENT; PROVIDED,
HOWEVER, THAT (I) NO SUCH TERMINATION SHALL RELIEVE A PARTY OF LIABILITY FOR
BREACH OF, OR MISREPRESENTATION UNDER, OR NONPERFORMANCE OF THIS AGREEMENT PRIOR
TO SUCH TERMINATION, PROVIDED THAT SUCH LIABILITY SHALL NOT INCLUDE
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (II) NO SUCH TERMINATION
SHALL AFFECT THE RIGHTS AND OBLIGATIONS UNDER THE MEZZANINE LOAN, AND (III)
ARTICLE IV AND ARTICLE V OF THIS AGREEMENT AND THE INDEMNIFICATION OBLIGATIONS
UNDER THIS AGREEMENT SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
(D)
ADDITIONAL NOTICE AND CURE.
IF TRANSFERORS FAIL TO PAY WHEN DUE
ANY MONETARY AMOUNT NEEDED TO COMPLY WITH THE PROVISIONS OF SECTION 1.8(B)
HEREOF, TRANSFERORS SHALL HAVE A PERIOD OF FIVE BUSINESS DAYS AFTER WRITTEN
NOTICE OF SUCH FAILURE BY BH INVESTOR TO CURE OR IF TRANSFERORS FAIL TO PERFORM
ANY NON-MONETARY COVENANT OR OBLIGATION CONTAINED IN SECTION 1.8(B) HEREOF,
TRANSFERORS SHALL HAVE A PERIOD OF 20 DAYS AFTER WRITTEN NOTICE BY BH INVESTOR
OF SUCH FAILURE TO CURE UNLESS SUCH FAILURE IS NOT REASONABLY SUSCEPTIBLE OF
CURE WITHIN 20 DAYS AND IN SUCH EVENT IF TRANSFERORS PROMPTLY COMMENCE SUCH CURE
AND DILIGENTLY PURSUE THE SAME TO COMPLETION, THE CURE PERIOD SHALL BE EXTENDED
FOR SUCH PERIOD OF TIME THAT IS REASONABLY NECESSARY TO EFFECT SUCH A CURE BUT
IN NO EVENT SHALL SUCH PERIOD EXCEED 60 DAYS.
1.10
CASUALTY AND CONDEMNATION.
(A)
TRANSFERORS SHALL GIVE BH INVESTOR PROMPT NOTICE OF ANY FIRE OR
OTHER CASUALTY AFFECTING THE PROJECT.
BH INVESTOR OR ITS DESIGNATED AGENTS MAY
ENTER UPON THE PROJECT FROM TIME TO TIME DURING NORMAL BUSINESS HOURS AND UPON
ADVANCE NOTICE TO TRANSFERORS IN ACCORDANCE WITH THIS AGREEMENT FOR THE PURPOSE
OF INSPECTING ANY SUCH CASUALTY.
(B)
IN THE EVENT OF LOSS OR DAMAGE TO THE PROJECT OR ANY PORTION
THEREOF (THE "PREMISES IN QUESTION") WHICH IS NOT "MAJOR" (AS HEREINAFTER
DEFINED), THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT PROVIDED PROJECT
OWNER PERFORMS ANY NECESSARY REPAIRS OR, AT TRANSFERORS' OPTION, REDUCES THE
CASH PORTION OF THE BH CONTRIBUTION IN AN AMOUNT EQUAL TO THE COST OF SUCH
REPAIRS, TRANSFERORS THEREBY RETAINING ALL OF TRANSFERORS' RIGHT, TITLE AND
INTEREST TO ANY CLAIMS AND PROCEEDS PROJECT OWNER MAY HAVE WITH RESPECT