the Seller Indemnified Parties from any liability in
connection with such claim. In the event Purchaser does not undertake to conduct
and control the defense of any claim, no Seller Indemnified Party shall settle
the same without the prior written approval of Purchaser, not to be unreasonably
withheld, conditioned or delayed.
Purchaser and the Seller Indemnified Party shall cooperate reasonably in all
aspects of any investigation, defense, pretrial activities, trial, compromise,
settlement or discharge of any claim in respect of which indemnity is sought
pursuant to this Section 6.3, including, but not limited to, by providing the
other party with reasonable access to employees and officers (including as
witnesses) and other reasonable non-privileged information.
6.3.3
SOLE RECOURSE; MAXIMUM LIABILITY.
SELLER, ON BEHALF OF EACH SELLER
INDEMNIFIED PARTY, AGREES THAT (I) ITS SOLE RECOURSE IN THE EVENT OF A BREACH OF
ANY REPRESENTATION, COVENANT OR WARRANTY MADE BY PURCHASER HEREUNDER OR ANY
CLAIM FOR DAMAGES, IN EACH CASE IF CLOSING HAS OCCURRED, SHALL BE SOLELY TO
PURCHASER, AND NOT TO ANY OF ITS AFFILIATES OR ANY OFFICERS, DIRECTORS, AGENTS
OR REPRESENTATIVES OF PURCHASER OR ITS AFFILIATES, PROVIDED THAT PURCHASER
MAINTAINS A NET WORTH AT LEAST EQUAL 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 THREE
MILLION DOLLARS ($3,000,000) (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 FIFTEEN MILLION DOLLARS ($15,000,000). 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
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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 $15
MILLION THROUGH THE REMAINING REPRESENTATIONS EXPIRATION DATE.
6.4
COVENANTS OF PURCHASER.
PURCHASER HEREBY COVENANTS WITH SELLER:
6.4.1
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 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.
6.4.2
OWNERSHIP IN COMPLIANCE WITH