Common use of Subsequent Changes Clause in Contracts

Subsequent Changes. If, after the Effective Date, Seller obtains knowledge of any fact or circumstance which would “materially and adversely,” as defined below, change one of its foregoing representations or warranties, then Seller will promptly give notice of each changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming aware of each fact which would materially and adversely change any of the representations or warranties contained in this Section 11 or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) or would otherwise constitute a breach thereof by Seller, Buyer, as its sole and exclusive remedy at law or in equity, shall on each occasion have the option of (i) waiving each such breach of warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer. Each election shall be made by Buyer not later than five (5) business days from Buyer actually becoming aware of each fact. If Buyer does not timely elect to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from such facts or circumstances disclosed by Seller in its notice to Buyer or of which Buyer becomes aware prior to Closing, and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. In no event shall Seller be liable to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.10, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty if Buyer had actual or deemed knowledge thereof prior to Closing.

Subsequent Changes. If, after the Effective Date, Seller obtains If Buyer has actual knowledge of any fact (as opposed to constructive or circumstance which would “materially and adversely,” as defined below, change one of its foregoing representations or warranties, then Seller will promptly give notice of each changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]imputed knowledge). Upon Buyer becoming aware of each fact which would materially and adversely change any of the representations or warranties contained in this Section 11 or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) or would otherwise constitute a breach thereof by Seller, Buyer, as its sole and exclusive remedy at law or in equityremedy, shall on each occasion have the option of either (i) waiving each such the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions in Section 11.12 below, terminating this Agreement, Agreement in which event the Deposit accordance with Section 4.4 and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to BuyerSection 11.12 below. Each Any such election shall be made by Buyer not later than five (5) business days from Buyer actually becoming aware obtaining actual knowledge of each such fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer's termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30‑day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30‑day cure period. If Buyer does not timely so elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.10 on account of such breach of warranty or change11.12, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights right to terminate this Agreement pursuant to Section 4.4 and this Section 11.10 on account of such breach of warranty or change11.12, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from such the facts or circumstances disclosed by Seller in its notice that have actually become known to Buyer or of which Buyer becomes aware prior to Closing, and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. In no event shall Seller be liable to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.10, above)for, or be deemed to be in default under this Agreement hereunder by reason of, any breach of a Seller’s representation or warranty which results from any change that (A) occurs between the Effective Date and the Closing Date and (B) (1) is permitted under the terms of this Agreement, (2) is beyond the reasonable control of Seller or (3) results from any act or omission of Buyer; provided, however, any breach of such Seller’s representation or warranty in any material respect (other than those that are permitted under the terms of this Agreement) shall, if such breach has a Material Adverse Effect and does not result from any act or omission of Buyer, constitute the non-fulfillment of the condition set forth in Section 4.3.2 and Buyer had actual or deemed knowledge thereof prior may elect to Closingterminate this Agreement pursuant to Section 4.4 and this Section 11.12.

Subsequent Changes. If, after the Effective Date, If Seller obtains knowledge becomes aware of any fact or circumstance prior to the Closing Date which would “materially and adversely,” as defined below, adversely change one of its foregoing representations or warranties, then Seller will promptly give notice of each such changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer actually becoming aware of each any fact which would materially and adversely change any of the representations or warranties contained in this Section 11 or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) or would otherwise constitute a breach thereof by Seller, Buyer, as its sole and exclusive remedy at law or in equityremedy, shall on each occasion have the option of (i) waiving each such the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer. Each Any such election shall be made by Buyer not later than the earlier of (A) five (5) business days from Buyer actually becoming aware of each factsuch fact or (B) the Closing Date. Notwithstanding the foregoing, if Buyer elects to proceed under clause (ii) above, Seller shall have the right, in its sole discretion, within three (3) business days following receipt of such election from Buyer, to elect by written notice to Buyer to cure such matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (30) days to effectuate such cure). If Seller makes such foregoing election and proceeds to actually cure such matter in the time required above, then Buyer's original notice under clause (ii) above shall be deemed Buyer's election to not terminate this Agreement and proceed pursuant to clause (i) above. If Buyer does not timely so elect to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change11.9, then Buyer shall be deemed to have (ai) irrevocably elected to waive its rights to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change11.9, (bii) elected to acquire the Property on the terms set forth in this Agreement, and (ciii) waived all remedies at law or in equity with respect to any representations or warranties resulting from such the facts or circumstances disclosed by Seller in its notice to Buyer or of which Buyer actually becomes aware prior to Closing, Closing and Seller’s 's representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. In no 753659.08/XXX000000-00001/4-20-16/pjr/pjr -17- Agreement of Purchase and Sale[20333 South Normandie Avenue][Bridge Acquisition, LLC] event shall Seller be liable to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.1011.9, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty if Buyer had actual that results from any change that (i) occurs between the Effective Date and the Closing Date, and (ii) is not due to the voluntary or deemed knowledge thereof prior to Closingnegligent acts or omissions of Seller in violation of this Agreement.

Subsequent Changes. If, after the Effective Date, Seller obtains knowledge of any fact or circumstance which would “materially and adversely,” as defined below, change one of its foregoing representations or warranties, then Seller will promptly give notice of each changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming aware (whether by notice from Seller or otherwise) of each any fact which (a) would materially and adversely change any of the representations or warranties contained in this Section 11 or elsewhere in this Agreement or in any Other Document herein and (“Seller’s Representations”b) or would otherwise constitute a breach thereof by Seller, Buyer, as its sole and exclusive remedy at law or in equityremedy, shall on each occasion have the option of either (i) waiving each such the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, Agreement in which event the Deposit accordance with Section 4.4 and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyerthis Section 11.7. Each Any such election shall be made by Buyer not later than five (5) business days from Buyer actually becoming aware of each such fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer’s termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30-day cure period. If Buyer does not timely so elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.10 on account of such breach of warranty or change11.7, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights right to terminate this Agreement pursuant to Section 4.4 and this Section 11.10 on account of such breach of warranty or change11.7, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from such the facts or circumstances disclosed by Seller in its notice to Buyer or of which Buyer becomes aware prior to Closing, and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. In no event shall Seller be liable to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.10, above)for, or be deemed to be in default under this Agreement hereunder by reason of, any breach of a Seller’s representation or warranty if which results from any change that (A) occurs between the Effective Date and the Closing Date and (B) (1) is permitted under the terms of this Agreement, (2) is beyond the reasonable control of Seller or (3) results from any act or omission of Buyer; provided, however, any breach of such Seller’s representation or warranty in any material respect (other than those that are permitted under the terms of this Agreement) shall constitute the non-fulfillment of the condition set forth in Section 4.3.3 and Buyer had actual or deemed knowledge thereof prior may elect to Closingterminate this Agreement pursuant to Section 4.4 and this Section 11.7.

Subsequent Changes. If, after the Effective Date, Seller obtains knowledge first becomes aware of any fact or circumstance which would “materially and adversely,” as defined below, change one result in any of its foregoing representations or warrantieswarranties contained herein being untrue or incorrect, then Seller will promptly give notice of each such changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming actually aware of each any fact or circumstance which would materially and adversely change any result in a breach of the one of Seller's representations or warranties contained in this Section 11 or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) or would otherwise constitute a breach thereof by Sellerherein, Buyer, as its sole and exclusive remedy at law or in equityremedy, shall on each occasion have the option of (i) waiving each such the breach of the representation or warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to BuyerBuyer and, if (x) the representation and warranty was untrue when made as of the Effective Date, or (y) the failure of such representation and warranty to be true also constitutes, or was otherwise caused, a breach by Seller of any of its obligations under this Agreement (e.g., prior to the Effective Date, Seller had received written notice of an uncured release of Hazardous Substances under the Property and failed to include such notice in the Due Diligence Documents) or was otherwise caused by the affirmative acts or omissions of Seller in violation of a specific obligation expressly set forth in this Agreement, then Buyer may also pursue its remedies under Section 16.1 hereof. Each Any such election shall be made by Buyer not later than five the earlier to occur of the Scheduled Closing Date or the date which is seven (57) business days from Buyer actually becoming aware after the expiration of each factthe notice and cure period set forth in Section 16.5 below. If Buyer does not so timely elect to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change11.2, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights to terminate this Agreement pursuant to this Section 11.10 on account by reason of the existence of such breach of warranty fact or changecircumstance, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from such the facts or circumstances disclosed by Seller in its notice to Buyer or of which Buyer becomes aware prior to Closing, and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. In no event shall Seller be liable to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.10, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty if Buyer had actual or deemed knowledge thereof prior to Closing.

Subsequent Changes. If, after the Effective Date, Seller obtains knowledge If BCSP and/or Owner becomes aware of any fact or circumstance which would “materially and adversely,” as defined below, adversely change one of its foregoing representations or warrantiesExpress Representations set forth in Section 5.1 above, then Seller will promptly BCSP and/or Owner shall give notice of each such changed fact or circumstance to BuyerInvestor. For purposes If Investor has or obtains knowledge of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming aware of each fact which would materially and adversely change any of the representations or warranties Express Representations contained in this Section 11 or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) herein or would otherwise constitute a breach thereof by SellerBCSP and/or Owner, Buyerand provided that such fact was not included in the Property Information prior to the Effective Date and Investor did not know, or was not deemed to know, such fact prior to the Effective Date, Investor, as its sole and exclusive remedy at law or in equityremedy, shall on each occasion have the option of (i) waiving each such the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to BuyerInvestor. Each Any such election shall be made by Buyer Investor not later than the earlier to occur of (i) five (5) business days from Buyer actually Investor becoming aware of each such fact, or (ii) the Closing Date. If Buyer Investor does not timely so elect to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change5.4, then Buyer Investor shall be deemed to have (a) irrevocably elected to waive its rights to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change5.4, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from such the facts or circumstances disclosed by Seller BCSP and/or Owner in its notice to Buyer Investor. For purposes of this Agreement, the “ knowledge” or “actual knowledge” of which Buyer becomes aware prior to Closing, Investor shall mean the receipt by Alex Vouvalides or Xxxxxxxxxxx Xxxxxx of a written document containing such fact or circumstance and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained or materials included in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereofProperty Information. In no event shall Seller the Closing be liable to Buyer extended beyond the Outside Closing Date for (except to any reason without the extent expressly elected by Seller pursuant to this Section 11.10express written agreement of BCSP, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty if Buyer had actual or deemed knowledge thereof prior to ClosingBCSP’s sole and absolute discretion.

Subsequent Changes. IfIf prior to Closing Buyer becomes aware, after the Effective Dateby any means, Seller obtains knowledge of any fact or circumstance which would “materially and adversely,” as defined below, change one evidences a material breach by Seller of its foregoing representations or warranties, then Seller will promptly give notice of each changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming aware of each fact which would materially and adversely change any of the representations or warranties contained in this Section 11 or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) herein or would otherwise constitute a material breach thereof by Seller, which material breach will not be cured by the Closing Date, then Buyer, as its sole and exclusive remedy at law or in equityremedy, shall on each occasion have the option of (i) waiving each such the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer, and Buyer shall be responsible to pay for certain costs in accordance with the terms of Section 4.4 of this Agreement. Each Any such election shall be made by Buyer not later than five (5) business days from Buyer actually becoming aware of each such fact; provided, however, that if Buyer does not provide written notice of such election to Seller within such five (5) business day period, Buyer shall irrevocably be deemed to have elected to proceed under clause (i) above. Notwithstanding the foregoing, if Buyer elects to proceed under clause (ii) above, Seller shall have the right, in its sole discretion, within three (3) business days following receipt of such election from Buyer, to elect by written notice to Buyer to cure such matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (30) days to effectuate such cure) and if such notice is provided within three (3) business days prior to the Closing Date, the Closing Date shall automatically be extended for three (3) business days in order to allow Seller to make such election. If Seller makes such foregoing election and cures such matter, then Xxxxx's original notice under clause (ii) above shall be deemed Buyer's election to not terminate this Agreement and proceed pursuant to clause (i) above. If Buyer does not timely (or is deemed to not) so elect to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change11.9, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change11.9, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from such facts warranties. If the changed fact or circumstances disclosed by Seller in its notice to Buyer or of which Buyer becomes aware prior to Closing, circumstance does not materially and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in adversely change any of Seller’s the representations and or warranties contained herein or in any Other Documentwhen made, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller shall deliver to Buyer is updated schedules, as applicable, prior to Closing and the parties shall proceed to the Closing in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds accordance with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, terms hereof. Buyer shall be deemed to have accepted and approved Seller’s representations and warranties be aware of all matters contained in the Due Diligence Materials made available to Buyer, as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. In no event shall Seller be liable of the date such Due Diligence Materials are made available to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.10, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty if Buyer had actual or deemed knowledge thereof prior to ClosingBuyer.

Subsequent Changes. If, If after the Effective Date, Date Seller obtains knowledge of any fact or circumstance which would “materially and adversely,” as defined below, adversely change one of its foregoing representations or warranties, then Seller will promptly give notice of each such changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming aware of each any fact which would materially and adversely change any of the representations or warranties contained in this Section 11 11, except for the representations and warranties in Section 11.5 (other than with regard to any Lease with a Major Tenant, any monetary default (beyond applicable notice and cure periods), or an event of bankruptcy or insolvency proceeding), or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) or would otherwise constitute a breach thereof by Seller, Buyer, as its sole and exclusive remedy at law or in equity, shall on each occasion have the option of (i) waiving each such the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer; provided, however, if such material adverse change arose out of the willful act, or intentional failure to act, by Seller or another member of the Seller Group, the terms of Section 16.1 shall apply. Each Any such election shall be made by Buyer not later than five (5) business days from Buyer actually becoming aware of each fact. If Buyer does not timely elect to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or changethe Closing Date; provided, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or changehowever, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from such facts or circumstances disclosed by Seller in its notice to Buyer or of which if Buyer becomes aware prior to Closing, and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then fact from other than Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed promptly notify Seller thereof. Notwithstanding the foregoing, if Buyer elects to have accepted and approved Seller’s representations and warranties as so qualified and amended or modifiedproceed under clause (ii) above, and Buyer shall have no right or remedy, and Seller shall have no obligation or liabilitythe right, on account thereof. In no event shall Seller be liable to Buyer for (except to in its sole discretion, within the extent expressly elected by Seller pursuant to this Section 11.10, above), or be deemed to be in default under this Agreement by reason of, any breach earlier of a representation or warranty if Buyer had actual or deemed knowledge thereof prior to Closing.three

Subsequent Changes. If, after the Effective Date, If Seller obtains knowledge becomes aware of any fact or circumstance which would “materially and adversely,” as defined below, adversely change one of its foregoing representations or warranties, then Seller will promptly give notice of each such changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming aware aware, by any means, of each any fact or circumstance which would materially and adversely change any evidences a material breach by Seller of the its representations or warranties contained in this Section 11 or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) herein or would otherwise constitute a material breach thereof by Seller, Buyer shall so notify Seller and if as of the Closing Date such material breach is still outstanding, then Buyer, as its sole and exclusive remedy at law or in equityremedy, shall on each occasion have the option of (i) waiving each such the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer, and Buyer shall be responsible to pay for certain costs in accordance with the terms of Section 4.4 of this Agreement. Each Notwithstanding the foregoing, if Buyer elects to proceed under clause (ii) above, Seller shall have the right, in its sole discretion, within three (3) business days following receipt of such election from Buyer, to elect by written notice to Buyer to cure such matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (30) days to effectuate such cure), and if Seller completes such cure prior to Closing, Buyer's termination notice under clause (ii) above shall be nullified. Any such election shall be made by Buyer not later than five (5) business days from Buyer actually becoming aware of each such fact. If Buyer does not timely so elect to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change11.6, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights to terminate this Agreement pursuant to this Section 11.10 on account of such breach of warranty or change11.6, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances known to Buyer. If the changed fact or circumstance does not evidence a material breach by Seller of its representations or warranties contained herein when made, Seller shall deliver to Buyer updated schedules, as applicable, prior to Closing and the parties shall proceed to the Closing in accordance with the terms hereof. Notwithstanding the foregoing, if Seller's notice to Buyer pursuant to this Section 11.6 relates to any of the following changed facts or circumstances, Buyer shall not have the right to terminate this Agreement as a result of such notice and Buyer shall be deemed to have waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice to Buyer or of which Buyer becomes aware prior to Closing, and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified such notice: any default by all such disclosures. Anything contained herein to the contrary notwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in vendor under any of Seller’s representations and warranties contained herein or in any Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any information contained in any material posted in Seller’s online diligence room or otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing of the transactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall have no obligation or liability, on account thereof. In no event shall Seller be liable to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.10, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty if Buyer had actual or deemed knowledge thereof prior to ClosingContract.