TO THE PURCHASER LIABILITY CAP THROUGH THE
REMAINING REPRESENTATION EXPIRATION DATE TO SATISFY ITS INDEMNITY OBLIGATIONS
HEREUNDER, AND (II) PURCHASER'S MAXIMUM AGGREGATE LIABILITY TO SELLER, PURSUANT
TO THIS AGREEMENT IF THE CLOSING HAS OCCURRED, SHALL NOT OTHERWISE EXCEED SIX
MILLION DOLLARS ($6,000,000.00) (THE "PURCHASER LIABILITY CAP"). NOTWITHSTANDING
THE FOREGOING, THE PURCHASER LIABILITY CAP, AS TO ANY BREACH OF SECTION 6.4.2
AND 6.4.3 SHALL NOT EXCEED THIRTY MILLION DOLLARS ($30,000,000.00). SELLER
FURTHER AGREES TO FIRST USE ALL REASONABLE EFFORTS TO SEEK RECOVERY UNDER ANY
INSURANCE POLICIES AND SERVICE CONTRACTS APPLICABLE TO SUCH CLAIM PRIOR TO
SEEKING RECOVERY FROM PURCHASER, AND PURCHASER SHALL NOT BE LIABLE TO SELLER FOR
THAT PORTION OF SELLER'S CLAIM WHICH IS SATISFIED FROM SUCH INSURANCE POLICIES
AND SERVICE CONTRACTS. PURCHASER AGREES THAT IT WILL MAINTAIN A NET WORTH OF AT
LEAST EXCEED THIRTY MILLION DOLLARS ($30,000,000.00) THROUGH THE REMAINING
REPRESENTATIONS EXPIRATION DATE.
6.4
Covenants of Purchaser. Purchaser hereby covenants with Seller
that Purchaser shall furnish to Seller copies of any third party reports
received by Purchaser in connection with any inspection of the Property for the
presence of Hazardous
46
Substances. Purchaser hereby assumes full responsibility for such inspections
and, except for claims based on representations or warranties contained in
Section 5.3.6 or based on Section 5.5.2(iii) hereof irrevocably waives any claim
against Seller arising from the presence of Hazardous Substances on the
Property. Purchaser shall also furnish to Seller, without representation or
warranty, express or implied, copies of any other third party reports received
by Purchaser relating to any other inspections of the Property conducted on
Purchaser's behalf, if any (including, specifically, without limitation, any
reports analyzing compliance of the Property with the provisions of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101, et seq., if
applicable), but excluding any appraisals or other evaluations of value.
6.4.1
OWNERSHIP IN COMPLIANCE WITH THE REIT RULES. AS OF THE CLOSING AND
AFTER GIVING EFFECT TO THE ACQUISITION OF THE SHARES BY PURCHASER AND AT ALL
TIMES DURING THE PORTION OF THE TAXABLE YEAR OF EACH TRUST THAT BEGINS AS OF THE
CLOSING AND ENDS AFTER THE CLOSING, NOT MORE THAN FIFTY PERCENT (50%) IN VALUE
OF THE OUTSTANDING SHARES OF BENEFICIAL INTEREST OF EACH OF THE TRUSTS WILL BE
OWNED, DIRECTLY OR INDIRECTLY, OR THROUGH THE APPLICATION OF THE ATTRIBUTION
RULES OF CODE SECTION 544 (AS MODIFIED BY CODE SECTION 856(H)(1)(B)), BY FIVE
(5) OR FEWER INDIVIDUALS (DEFINED IN CODE SECTION 542(A)(2) (AS MODIFIED BY CODE
SECTION 856(H)(3)) TO INCLUDE CERTAIN ENTITIES).
6.4.2
CONTINUATION OF REIT ELECTION.
(I)
PURCHASER COVENANTS THAT AFTER THE CLOSING IT WILL TAKE ALL
NECESSARY STEPS, OR FOREBEAR FROM TAKING STEPS (OR CAUSE EACH TRUST TO TAKE (OR
FOREBEAR FROM TAKING SUCH STEPS, AS THE CASE MAY BE) AS MAY BE NEEDED) TO
MAINTAIN THE CLASSIFICATION AND TREATMENT OF THE TRUSTS AS REITS FOR THE TRUSTS'
TAXABLE YEAR THAT INCLUDES THE CLOSING.
(II)
PURCHASER COVENANTS THAT IT WILL TAKE ALL STEPS WITHIN ITS
CONTROL (INCLUDING FOR EXAMPLE, CAUSING THE TRUSTS TO MAKE