THE
CIRCUMSTANCES THAT SELLER AND PURCHASER REASONABLY ESTIMATE WOULD EXIST AT THE
TIME OF SUCH BREACH. NOTWITHSTANDING THE FOREGOING, IF PURCHASER FAILS TO
PERFORM ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT THAT SURVIVE CLOSING OR THE
EARLIER TERMINATION OF THIS AGREEMENT, THEN SELLER SHALL BE ENTITLED TO PURSUE
ANY AND ALL REMEDIES AVAILABLE AT OR LAW OR IN EQUITY, AS A RESULT OF SUCH
DEFAULT, INCLUDING, WITHOUT LIMITATION THE RIGHT TO RECOVER DAMAGES AGAINST
PURCHASER, INCLUDING, WITHOUT LIMITATION, DAMAGES SUFFERED BY SELLER AND/OR ITS
DIRECT AND INDIRECT PARTNERS AS A RESULT OF THE TRUST NOT QUALIFYING AS A REIT
FOR THE TRUST'S TAXABLE YEAR BEGINNING JANUARY 1, 2006, SUBJECT TO SECTION 6.3.
THE PROVISIONS OF THIS SECTION 7.1 SHALL SURVIVE CLOSING. WITH RESPECT TO ANY
DEFAULT BY PURCHASER AFTER CLOSING, SELLER ACKNOWLEDGES AND AGREES THAT SELLER'S
SOLE REMEDY SHALL GOVERNED BY THE TERMS OF SECTION 6.2 HEREOF.
7.2
DEFAULT BY SELLER.
IN THE EVENT THAT SELLER DEFAULTS IN ITS OBLIGATIONS
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT FOR ANY REASON
OTHER THAN:
(X) PURCHASER'S DEFAULT HEREUNDER, (Y) A FAILURE OF A CONDITION
PRECEDENT TO SELLER'S OBLIGATIONS HEREUNDER OR (Z) THE PERMITTED TERMINATION OF
THIS AGREEMENT BY SELLER OR PURCHASER AS HEREIN EXPRESSLY PROVIDED, PURCHASER
SHALL BE ENTITLED, AS ITS SOLE REMEDY, EITHER (A) TO RECEIVE THE RETURN OF THE
DEPOSIT, WHICH RETURN AND REIMBURSEMENT SHALL OPERATE TO TERMINATE THIS
AGREEMENT AND RELEASE SELLER FROM ANY AND ALL LIABILITY HEREUNDER, OR (B) TO
ENFORCE SPECIFIC PERFORMANCE OF SELLER'S OBLIGATION TO EXECUTE THE DOCUMENTS
REQUIRED TO CONVEY THE SHARES TO PURCHASER, IT BEING UNDERSTOOD AND AGREED THAT
THE REMEDY OF SPECIFIC PERFORMANCE SHALL NOT BE AVAILABLE TO ENFORCE ANY OTHER
OBLIGATION OF SELLER HEREUNDER. PURCHASER EXPRESSLY WAIVES ITS RIGHTS TO SEEK
DAMAGES OF ANY KIND IN THE EVENT OF SELLER'S DEFAULT HEREUNDER PRIOR TO CLOSING.
PURCHASER SHALL BE DEEMED TO HAVE ELECTED TO TERMINATE THIS AGREEMENT AND
RECEIVE BACK THE DEPOSIT IF PURCHASER FAILS TO FILE SUIT FOR SPECIFIC
PERFORMANCE AGAINST SELLER IN A COURT HAVING JURISDICTION IN MARYLAND, ON OR
BEFORE SIXTY (60) DAYS FOLLOWING THE DATE UPON WHICH CLOSING WAS TO HAVE
OCCURRED. WITH RESPECT TO ANY DEFAULT BY SELLER AFTER CLOSING,
45
PURCHASER ACKNOWLEDGES AND AGREES THAT PURCHASER'S SOLE REMEDY SHALL GOVERNED BY
THE TERMS OF SECTION 5.5 HEREOF.
8.
RISK OF LOSS
8.1
MINOR DAMAGE.
IN THE EVENT OF LOSS OR DAMAGE TO THE PROPERTY WHICH IS
NOT "MAJOR", THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT PROVIDED
SELLER PERFORMS ANY NECESSARY REPAIRS OR, AT SELLER'S OPTION, PROVIDES THAT ALL
RIGHT, TITLE AND INTEREST TO ANY CLAIMS AND PROCEEDS THE TRUST OR ITS
SUBSIDIARIES MAY HAVE WITH RESPECT TO ANY CASUALTY INSURANCE POLICIES OR
CONDEMNATION AWARDS RELATING TO THE PROPERTY ARE ASSIGNED TO PURCHASER OR
RETAINED BY THE TRUST OR RIVERSIDE LLC. IN THE EVENT THAT SELLER ELECTS TO HAVE
RIVERSIDE LLC PERFORM REPAIRS UPON THE PROPERTY, SELLER SHALL USE REASONABLE
EFFORTS TO CAUSE SUCH REPAIRS TO BE COMPLETED PROMPTLY AND THE DATE OF CLOSING
SHALL