Common use of Survival of Seller’s Representations and Warranties Clause in Contracts

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six (6) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser), (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six (6) month period and an action shall have been commenced by Purchaser against Seller within ten (10) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall this Article 5 will survive Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall will be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00)25,000, in which event the full amount of such valid claims shall will be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (c) unless written notice containing a description of the specific nature of such breach shall will have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have has been commenced filed in a court of competent jurisdiction by Purchaser against Seller within ten one (101) days after the termination year of the survival period provided for above in this Section 5.3Closing. As used herein, the term “Liability Cap” shall will mean the total aggregate amount of Two Million and No/100 Dollars five hundred thousand dollars ($2,000,000.00500,000). In no event shall will Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Liability Cap. The Liability Cap does not include reasonable attorney’s fees and costs of litigation.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof 5.1, as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g4.2(b) hereof, shall survive Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for or all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Fifty Thousand and No/100 Dollars ($100,000.0050,000.00), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten thirty (1030) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the certificate to be delivered by Seller Affiliate Agreements, collectively at Closing pursuant to Section 4.2(b) hereof exceed the amount of the Cap. As used herein, the term “Cap” shall mean the total aggregate amount of Five Hundred Thousand and No/100 Dollars ($500,000.00).

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six (6) monthsuntil December 1, 1998. No Notwithstanding anything to the contrary contained herein, no claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing including, without limitation, any Data Room Information. Without in any way limiting the foregoing, Purchaser acknowledges and agrees that it is deemed to have knowledge of all the Data Room Information (it being agreed that information that is set forth in due diligence materials provided including, without limitation, the documents and instruments described therein). Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty unless (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00), in which event the full amount of such valid claims shall be actionable, up to the Cap (as defined in this Section 5.3), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six (6) month period December 1, 1998 and an action shall have been commenced by Purchaser against Seller within ten thirty (1030) days after such date. Notwithstanding anything to the termination contrary contained herein, in no event shall the liability of Seller for breach of any and all representations and warranties exceed, in the survival period provided for above in this Section 5.3aggregate, the Cap. As used herein, the term “"Cap” " shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap1,750,000.00.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereofthe terms of this Agreement, shall survive the Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided the Closing. Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Fifty Thousand and No/100 Dollars ($100,000.0050,000.00), in which event the full amount of such valid claims shall be actionable, up to the Cap (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten two hundred forty (10240) days after the termination of the survival period provided for above in this Section 5.3Closing. Purchaser agrees to first seek recovery under any insurance policies and service contracts prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser's claim is satisfied from such insurance policies or service contracts. As used herein, the term “"Cap” " shall mean the total aggregate amount of Four Hundred Seventy-Two Million and No/100 Thousand Five Hundred Dollars ($2,000,000.00472,500.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount being five percent (5%) of the CapPurchase Price.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six (6) monthsmonths from and after the Closing Date. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thirty-Five Thousand and No/100 No/100ths Dollars ($100,000.0035,000.00) (the “Floor”), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six (6) month period and an action shall have been commenced by Purchaser against Seller within ten (10) days after the termination of the survival period provided for above in this Section 5.3on or before December 30, 2018. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million Five Hundred Thousand and No/100 Dollars ($2,000,000.00500,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the certificate to be delivered by Seller Affiliate Agreements, collectively at Closing pursuant to Section 4.2(g) hereof exceed the amount of the Cap. The Floor and the Cap shall not be applicable to any credits and prorations under Section 4.4, Seller’s indemnity under Section 8.1 or Seller’s fraud.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, this Agreement shall survive Closing for a period of six twelve (612) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable after Closing unless each of the following conditions is satisfied: (a) if the breach in question results from or is based on a condition, state of facts or other matter which was not actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements breaches, if any, collectively aggregate more than collectively aggregate more than One Hundred Twenty Five Thousand and No/100 00/100 Dollars ($100,000.0025,000), in which event the full total amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six (6) 12-month period and an action shall have been commenced by Purchaser against Seller within ten (10) days after the termination of the survival period provided for above in this Section 5.3period. As used herein, the term “Cap” shall mean the total aggregate amount of Eight Million Two Million Hundred Thousand and No/100 00/100 Dollars ($2,000,000.008,200,000.00). In All claims by Purchaser for losses due to Seller’s breach of any representation or warranty hereunder shall be made in accordance with the terms of Section 9.4 and the Holdback Escrow Agreement (as hereinafter defined). Notwithstanding any provision of this Agreement to the contrary, in no event shall (i) Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement Agreement, taken in the aggregate with any other claims by Purchaser against Seller for each other breach of any representation or the applicable Sellers under the warranty of Seller Affiliate Agreementsin this Agreement, collectively exceed the amount of the Cap, or (ii) Seller be liable for any punitive, exemplary, statutory or treble damages or any incidental or consequential damages.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six (6) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser), (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six (6) month period and an action shall have been commenced by Purchaser against Seller within ten (10) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company IIIII’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereofthe terms of this Agreement, shall survive Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided Closing. Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Fifty Thousand and No/100 Dollars ($100,000.0050,000), in which event the full amount of such valid claims shall be actionable, up to the Cap (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten two hundred forty (10240) days after the termination of the survival period provided for above in this Section 5.3Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser's claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “"Cap” " shall mean the total aggregate amount of Two One Million and No/100 Dollars ($2,000,000.001,000,000). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereofthe terms of this Agreement, shall survive Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided Closing. Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Two Hundred Thousand and No/100 Dollars ($100,000.00200,000.00), in which event the full amount of such valid claims shall be actionable, up to the Cap (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten two hundred forty (10240) days after the termination of the survival period provided for above in this Section 5.3Closing. Seller shall not be liable to Purchaser if Purchaser's claim is satisfied from any insurance policies, service contracts or Leases; provided, however, Purchaser shall not be required to exhaust such other potential sources of remedies prior to seeking recovery from Seller. As used herein, the term “"Cap” " shall mean the total aggregate amount of Two Million and No/100 00/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereofthe terms of this Agreement, shall survive the Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided the Closing. Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Twenty Thousand and No/100 Dollars ($100,000.0020,000.00), in which event the full amount amount, from the first dollar, of such valid claims shall be actionable, up to the Cap (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten two hundred forty (10240) days after the termination of the survival period provided for above in this Section 5.3Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser's claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “"Cap” " shall mean the total aggregate amount of Two Million and No/100 Three Hundred Fifty Thousand Dollars ($2,000,000.00350,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 SECTION 7.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six twelve (612) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided Closing. Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty unless (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Fifty Thousand and No/100 Dollars ($100,000.0050,000.00), in which event the full amount of such valid claims shall be actionable, up to the Cap (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six twelve (612) month period period. Purchaser agrees to first seek recovery under any insurance policies, Operating Contracts and an action Leases prior to seeking recovery from Seller, and Seller shall have been commenced by not be liable to Purchaser against Seller within ten (10) days after the termination of the survival period provided for above in this Section 5.3if Purchaser's claim is satisfied from such insurance policies, Operating Contracts or Leases. As used herein, the term “Cap” "CAP" shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00)750,000.00. In no event This SECTION 7.3 shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Capsurvive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six twelve (612) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing Closing, or (it being agreed that information ii) anything that is expressly set forth in (A) any Tenant Estoppel, or (B) the other due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Seller, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Twenty-Five Thousand and No/100 Dollars ($100,000.0025,000.00), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six twelve (612) month period and an action shall have been commenced by Purchaser against Seller within ten ninety (1090) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two One Million and No/100 Dollars ($2,000,000.001,000,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or (excluding the applicable Sellers under the Seller Affiliate Agreements, collectively representations in Section 5.1 (a),(e),(g) and (l)) exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereofthe terms of this Agreement, shall survive Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided Closing. Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Five Hundred Thousand and No/100 Dollars ($100,000.00500,000.00), in which event the full amount of such valid claims shall be actionable, up to the Cap (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten two hundred forty (10240) days after of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser's claim is satisfied from such insurance policies, service contracts or Leases (such 240 day limit to be tolled during any time that Purchaser is diligently pursuing an action with respect to the termination of the survival period provided for above in this Section 5.3matter but against a party other than Seller). As used herein, the term “"Cap” " shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap37,500,000.00.

Survival of Seller’s Representations and Warranties. The (a) Except as otherwise provided in subsection (b) below, the representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six nine (69) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00100,000), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six nine (69) month period and an action shall have been commenced by Purchaser against Seller within ten sixty (1060) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “"Cap” " shall mean the total aggregate amount of Two One Million and No/100 Dollars ($2,000,000.001,000,000). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s 's aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement, the certificate to be delivered by Seller at Closing pursuant to Section 4.2(g) hereof and for any other claim, cause of action, or liability of any kind, arising out of or relating directly or indirectly to this Agreement (whether in contract, tort or the applicable Sellers under the Seller Affiliate Agreements, collectively otherwise) exceed the amount of the Cap. Seller shall maintain a net worth greater than the Cap until after the expiration of the nine (9) month survival period. If any claims made by Purchaser under this Agreement prior to the end of the nine (9) month survival period, Seller shall maintain a net worth greater than the lesser of (i) the Cap or (ii) the aggregate amount of the claims.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof this Article IV, as updated by the certificate of Seller to be delivered to Purchaser Buyer at Closing in accordance with Section 4.2(g7.2(k) hereof, shall survive Closing for a period of six (6) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Buyer as of the Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser), (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00), in which event the full amount of such claims shall be actionableDate, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser Buyer to Seller prior to the expiration of said six (6) six-month period and an action shall have been commenced by Purchaser Buyer against Seller within ten eight (10) days 8) months after Closing. Notwithstanding the termination of the survival period provided for above foregoing, if Buyer knew at Closing that a representation or warranty contained in this Section 5.3Article IV was not true at Closing and Buyer nonetheless elected to proceed with the Closing, Buyer shall not have any right to make a claim hereunder for a breach of such representation or warranty. As used hereinNotwithstanding anything herein to the contrary, the term “Cap” Seller shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In in no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate have any liability to Purchaser for breach of any representation representation, warranty, indemnity or warranty covenant herein or in any closing document in excess of Seller $500,000 in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Capaggregate.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six one hundred and eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Fifty Thousand and No/100 Dollars ($100,000.0050,000), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred and eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten ninety (1090) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00)3% of the Purchase Price. In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the certificate to be delivered by Seller Affiliate Agreements, collectively at Closing pursuant to Section 4.2(g) hereof exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars fifty thousand dollars ($100,000.0050,000), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten thirty (1030) days after the termination of the survival period provided for above in this Section 5.3. Purchaser agrees to first seek recovery under any insurance policies, service contracts and leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or the Lease. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars one million dollars ($2,000,000.001,000,000). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the certificate to be delivered by Seller Affiliate Agreements, collectively at Closing pursuant to Section 4.2(g) hereof exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 and 7.3 hereof and as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g4.2(e) hereof, shall survive Closing for a period of six one (61) monthsyear. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser), (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Fifty Thousand and No/100 Dollars ($100,000.0050,000), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one (61) month year period and an action shall have been commenced by Purchaser against Seller within ten sixty (1060) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two One Million Five Hundred Thousand and No/100 Dollars ($2,000,000.001,500,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the certificate to be delivered by Seller Affiliate Agreements, collectively at Closing pursuant to Section 4.2(e) hereof exceed the amount of the Cap. For at least one (1) year after the Closing, Seller shall maintain a tangible net worth of not less than One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00), which obligation shall survive the Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six (6) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser), (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six (6) month period and an action shall have been commenced by Purchaser against Seller within ten (10) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company VIII’s and Company IXV’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of six (6) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser), (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00), in which event the full amount of such claims shall be actionable, and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six (6) month period and an action shall have been commenced by Purchaser against Seller within ten (10) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company VIII’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 11.2 hereof (as such may have been updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g16.3) hereofin accordance with the terms of this Agreement, shall survive Closing for a period of six (6) months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser Buyer prior to Closing Closing. Seller shall have no liability to Buyer for a breach of any representation or warranty (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser), (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00100,000), in which event the full amount of such valid claims in excess of One Hundred Thousand Dollars ($100,000) shall be actionable, up to the Maximum (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser Buyer to Seller prior to the expiration of said six (6) month period and an any action shall have been commenced by Purchaser Buyer against Seller within ten eight (10) days after the termination of the survival period provided for above in this Section 5.3. As used herein, the term “Cap” shall mean the total aggregate amount of Two Million and No/100 Dollars ($2,000,000.00). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.8)

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereofthe terms of this Agreement, shall survive Closing for a period of six one hundred eighty (6180) monthsdays. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided Closing. Seller shall have no liability to Purchaser by Seller for a breach of any representation or any Tenant Estoppel shall be deemed “actually known” to Purchaser), warranty (ba) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Five Hundred Thousand and No/100 Dollars ($100,000.00500,000), in which event the full amount of such valid claims shall be actionable, up to the Cap (as defined in this Section), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one hundred eighty (6180) month day period and an action shall have been commenced by Purchaser against Seller within ten two hundred forty (10240) days after the termination of the survival period provided for above in this Section 5.3Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount of Two Five Million and No/100 Dollars ($2,000,000.005,000,000). In no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively exceed the amount of the Cap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Seller’s Closing in accordance with Section 4.2(g) hereofCertificate, shall survive Closing for a period of six one (61) monthsyear after Closing. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to Closing (it being agreed that information that is set forth in due diligence materials provided to Purchaser by Seller or any Tenant Estoppel shall be deemed “actually known” to Purchaser)Closing, (b) unless the valid claims for all such breaches and any breaches by the applicable Sellers under the Seller Affiliate Agreements collectively aggregate more than collectively aggregate more than One Hundred Five Thousand and No/100 Dollars ($100,000.00)5,000.00) or more, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said six one (61) month year period and an action shall have been commenced by Purchaser against Seller within ten eighteen (1018) days months after Closing. Seller shall not be liable to Purchaser to the termination of the survival period provided for above in this Section 5.3extent Purchaser’s claim is satisfied from any insurance policy, Service Contract or Lease. As used herein, the term “Cap” shall mean the total aggregate amount of Two One Million Five Hundred Thousand and No/100 Dollars ($2,000,000.001,500,000.00). In Except for matters of fraud, in no event shall Seller’s, Company II’s, Company V’s and Company IX’s aggregate liability to Purchaser for breach any and all breaches of any representation or warranty of Seller in this Agreement or the applicable Sellers under the Seller Affiliate Agreements, collectively Seller’s Closing Certificate exceed the amount of the Cap, and Purchaser hereby waives and disclaims any right to damages or compensation for any and all such breaches in excess of the Cap.