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, as updated by Seller's Closing Certificate, shall survive Closing for a period of nine (9) months after Closing. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars ($10,000.00) 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 nine (9) month period and an action shall have been commenced by Purchaser against Seller within eleven (11) months after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000). In no event shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or 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.

Survival of Seller’s Representations and Warranties. The Upon Closing hereunder, the covenants, representations and warranties of Seller set forth in Section 5.14.01 above, as updated modified by Seller's the certificate delivered from Seller to Buyer at Closing Certificateas described in Section 7.03, shall be deemed remade as of the Closing Date and shall survive the Closing for a period of nine one (91) months after Closingyear. Except with respect However, notwithstanding anything to fraudulent misrepresentation for which the Agreement contrary herein, to the extent that any documents or information regarding Seller or the Property is terminated under Section 6.2, disclosed to Buyer in which event Section 6.2 shall apply, no claim for a breach of any representation writing or warranty of Seller shall be actionable or payable (a) if the breach brought to Buyer's attention in question results from or is based on a condition, state of facts or other matter which was known to Purchaser writing prior to Closing, (b) unless and Buyer nevertheless closes the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars ($10,000.00) or morepurchase of the Property, in which event the full amount of such valid claims Buyer shall be actionabledeemed to have accepted and to have waived any objection to or claim based on such documents or information. If Seller defaults in any obligation, up representation or warranty that expressly survives Closing and that Buyer has not been deemed to but not exceeding have accepted or to have waived pursuant to the amount of immediately preceding sentence, then subject to the Cap (limitation on survival set forth in this Section Buyer may seek damages against Seller for such default as defined below)well as such other relief as may be available at law or equity, and (c) unless written notice containing a description Buyer will not be deemed to have waived its right to sue for damages by having closed this transaction even though the accxxxcy of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said nine (9) month period and an action shall have been commenced by Purchaser against Seller within eleven (11) months after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice was a condition precedent to Buyer's obligation to close as aforesaidset forth in Section 6.01(a) below. Notwithstanding anything in this Section 4.02 to the contrary, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable obligated to Purchaser pay any damages or other amounts pursuant to this Section 4.02 until the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" shall mean the total aggregate amount equal to Three Hundred Fifty sought by Buyer hereunder exceeds Twenty-Five Thousand and No/100 Dollars ($350,000.00025,000.00) (the "SELLER THRESHOLD AMOUNT"), whereupon Seller shall be liable for all amounts (including the Seller Threshold Amount) for which relief and/or a remedy may be sought by Buyer under this Section 4.02. In no event The immediately preceding sentence shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or Seller's Closing Certificate exceed survive 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 CapClosing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, 5.1 as updated by Seller's the certificate of Seller to be delivered to Purchaser at Closing Certificatein accordance with Section 4.2(f) hereof, shall survive Closing for a period of nine three hundred sixty-five (9365) months days from and after Closingthe Closing Date as defined in Section 4.1 (i.e., including any extension). Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten more than Seventy-Five Thousand and No/100 Dollars ($10,000.00) or more75,000.00), 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 nine three hundred sixty-five (9365) month day period and an action shall have been commenced by Purchaser against Seller within eleven three hundred sixty-five (11365) months after days of Closing. In the event of Purchaser agrees to first seek recovery under any breach by Seller of its representations insurance policies, service contracts and warranties contained herein which Purchaser first discovers after Closing Leases prior to seeking recovery from Seller, and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent if Purchaser's ’s claim is or can be satisfied from any such insurance policypolicies, Service Contract service contracts or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the SellerLeases. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three of One Million Five Hundred Fifty Thousand and No/100 Dollars ($350,000.000)1,500,000.00) per each of DT Center and Ridgeview. In no event shall Seller's ’s aggregate liability to Purchaser for any and all breaches breach of any representation or warranty of Seller in this Agreement or Seller's the certificate to be delivered by Seller at Closing Certificate pursuant to Section 4.2(f) hereof exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Purchaser hereby waives and disclaims any right Brookdale Investors Three, L.P., with respect to damages or compensation for any and all such breaches in excess of the CapRidgeview only, to satisfy Seller’s obligations under this Section 5.3.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's Closing Certificate, 5.1 hereof shall survive Closing for a period of nine one (91) months after Closingyear. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 known to Purchaser prior to Closing, . Seller shall have no liability to Purchaser for a breach of any representation or warranty (ba) unless the valid claims for all such breaches with respect to this Property and the Columbia Falls (MT), Kalispell (MT), Fourth Plain (WA), Tacoma Lakewood (WA), Xxxxxxxx (XX) xxx Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx (XX) properties which are to be conveyed from Seller to Purchaser contemporaneously with the Property pursuant to purchase and sale agreements of even date, collectively aggregate Ten more than Five Hundred Thousand and No/100 Dollars ($10,000.00) or more500,000), 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 belowin 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 nine one (91) month year period and an action shall have been commenced by Purchaser against Seller within eleven one (111) months after year and ninety (90) days of Closing. In the event of Purchaser agrees to first seek recovery under any breach by Seller of its representations insurance policies, service contracts and warranties contained herein which Purchaser first discovers after Closing Leases prior to seeking recovery from Seller, and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent if Purchaser's claim is or can be satisfied from any such insurance policypolicies, Service Contract service contracts or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the SellerLeases. As used herein, the term "Cap" shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 of One Million Dollars ($350,000.000). In no event shall Seller's aggregate liability 1,000,000) with respect to Purchaser for any and all breaches claims relating to this Property and to the Columbia Falls (MT), Kalispell (MT), Fourth Plain (WA), Tacoma Lakewood (WA), Xxxxxxxx (XX) xxx Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx (XX) properties which are to be conveyed from Seller to Purchaser contemporaneously with the Property pursuant to purchase and sale agreements of even date. This Section 5.3 shall have no application to any representation or warranty claims of Seller in this Agreement or Seller's Closing Certificate exceed Purchaser with respect to warranties of title conveyed by 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 CapDeed.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's Closing Certificate, 7.1 hereof and in any Seller Estoppel (defined below) shall survive Closing for a period of nine (9) months after Closing(the “Claims Period”). Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 that was known to Purchaser prior to Closing, including any information disclosed by any Estoppel Certificate (bdefined below) or any Ground Lessor Estoppel (defined below). Seller shall have no liability to Purchaser for a breach of any representation or warranty unless (a) the valid claims for all such breaches, together with any breaches by Greenway Seller under the Greenway Contract, collectively aggregate Ten Thousand and No/100 more than One Million Dollars ($10,000.00) or more1,000,000), 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 belowin 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 nine (9) month period the Claims Period and an action shall have been commenced by Purchaser against Seller within eleven prior to thirty (1130) months after Closingdays following the expiration of the Claims Period. In Purchaser agrees to use commercially reasonable efforts to first seek recovery under any insurance policies, Operating Contracts and Leases during the event of any breach by Seller of its representations Claims Period prior to seeking recovery from Seller, and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent if Purchaser's ’s claim is or can be satisfied from any such insurance policypolicies, Service Contract Operating Contracts or Lease and Leases; provided, for avoidance of doubt, that if Purchaser agrees is unable to first seek reimbursement of any claims satisfy its claim during the Claims Period from said insurance policysuch other sources, Service Contract or Lease prior Purchaser shall have the right to seeking indemnification from proceed against Seller in accordance with the Sellerpreceding sentence. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 of Fifteen Million Dollars ($350,000.000)15,000,000) and shall include any claims Purchaser has against Greenway Seller under the Greenway Contract. In no event This Section 7.3 shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or 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 Capsurvive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's ’s Closing Certificate, shall survive the Closing for a period of nine until the date that is one hundred fifty (9150) months days after Closingthe Closing Date (the “Expiration Date”). Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten Two Hundred Fifty Thousand and No/100 Dollars ($10,000.00250,000.00) 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 (cb) unless written notice containing a reasonable description of the specific nature of such breach known to Purchaser shall have been given by Purchaser to Seller prior to the expiration of said nine (9) month period and an action shall have been commenced by Purchaser against Seller within eleven (11) months after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the CapExpiration Date. Seller shall not be liable released from liability to Purchaser for any such claim to the extent Purchaser's claim is Purchaser receives proceeds of or can be satisfied from any payment under an insurance policy, Service Contract service contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Sellerfor such claim. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three of One Million Five Hundred Fifty Thousand and No/100 Dollars ($350,000.0001,500,000.00). In no event shall Seller's ’s aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or Seller's ’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. Any liability of Seller pursuant to this Section 5.3 shall be set off against the Purchase Price; provided, however, that, subject to the provisions of this Section 5.3, Purchaser shall have the right to proceed against the proceeds of this transaction up to the Cap in order to provide Purchaser protection with respect to the availability of funds to provide for any claims for breach of representations and warranties of Seller. At Seller’s request, Purchaser shall reimburse Seller for one-half (1/2) of the amount of any refund of transfer taxes actually received by Purchaser in connection with a claim made by Purchaser pursuant to this Section 5.3 after the deduction therefrom of (i) the amount of such claim for which Purchaser has not received payment from Seller (whether or not such amount is in excess of the Cap) and (ii) all of the costs and expenses actually incurred by Purchaser in connection with such refund of transfer taxes.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's Closing Certificate, shall this Article 5 will survive Closing for a period of nine three hundred sixty-five (9365) months days after Closing. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no No claim for a breach of any representation or warranty of Seller shall will be actionable or payable (ai) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser or Blackbaud, Inc. prior to Closing, (bii) unless the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars (more than $10,000.00) or more50,000.00, 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 (ciii) 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 nine three hundred sixty-five (9365) month day period and and, if not addressed to Purchaser’s satisfaction, an action shall will have been commenced by Purchaser against Seller within eleven five hundred forty (11540) months days after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000). In no event shall will Seller's ’s aggregate liability to Purchaser for any and all breaches breach of any representation or warranty of Seller in this Agreement or Seller's Closing Certificate exceed the amount of the Liability Cap. As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser hereby waives and disclaims Seller, as to which an action has not been commenced by Purchaser against Seller within five hundred forty (540) days after Closing shall be automatically waived and released by Purchaser. As to any right litigation commenced under this section, the prevailing party shall be entitled to damages or compensation for any recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all such breaches in excess of the Capappeals, bankruptcy proceedings, tribunals and collection efforts.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.15.1 hereof, as updated by Seller's as of the Closing Certificate, in accordance with the terms of this Agreement shall survive Closing for a period of nine six (96) months after Closingfollowing the Closing (the “Outside Claim Date”). Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel 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, if Buyer elects to consummate the transactions described herein with such actual knowledge. Seller shall have no liability to Buyer for a breach of any representation or warranty unless (ba) unless the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate Ten more than Seventy Five Thousand and No/100 Dollars ($10,000.0075,000.00) or more(the “Basket”), in which event the amount of such valid claims, shall be actionable for the full amount of such valid claims shall be actionableclaims, up to but not exceeding the amount of the Cap (as defined belowin 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 on or prior to the expiration of said nine (9) month period Outside Claim Date, and an action shall have been commenced by Purchaser Buyer against Seller within eleven three (113) months after Closingthe Outside Claim Date. In the event of Buyer agrees to first seek recovery under any breach by Seller of its representations applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser Buyer to the extent Purchaser's Buyer’s claim is or can be satisfied from any such insurance policypolicies, Service Contract service contracts or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the SellerLeases. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three Hundred Fifty Thousand $2,000,000.00 in the aggregate. At the Closing, Seller and No/100 Dollars Buyer shall create an escrow fund ($350,000.000the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, pursuant to an escrow agreement substantially in the form of Exhibit Q (the “Holdback Escrow Agreement”). In no event shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or Seller's Closing Certificate exceed the , an amount of cash equal to the Cap, and Purchaser hereby waives and disclaims any right which shall secure Seller’s liability under this Agreement as provided herein. Subject to damages or compensation for any and all such breaches in excess the provisions of the CapHoldback Escrow Agreement, Seller shall be entitled to receive, and the Escrow Agent shall promptly pay to Seller, an amount equal to all amounts remaining in the Holdback Escrow Fund, together with interest earned thereon, (i) if there are no claims for indemnification against Seller or if there are no outstanding claims for which payment has not been made or are in dispute, under this Agreement, within one (1) Business Day after the Outside Claim Date or (ii) within one (1) Business Day after the final determination of all timely claimed indemnification payments owed to Buyer under this Agreement and the payment thereof to Buyer.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's Closing Certificate, 7.1 hereof and in any Seller Estoppel (defined below) shall survive Closing for a period of nine (9) months after Closing(the “Claims Period”). Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 that was known to Purchaser prior to Closing, including any information disclosed by any Estoppel Certificate (bdefined below). Seller shall have no liability to Purchaser for a breach of any representation or warranty unless (a) unless the valid claims for all such breaches, together with any breaches by 777 Main Seller under the 777 Main Contract, collectively aggregate Ten Thousand and No/100 more than One Million Dollars ($10,000.00) or more1,000,000), 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 belowin 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 nine (9) month period the Claims Period and an action shall have been commenced by Purchaser against Seller within eleven prior to thirty (1130) months after Closingdays following the expiration of the Claims Period. In Purchaser agrees to use commercially reasonable efforts to first seek recovery under any insurance policies, Operating Contracts and Leases during the event of any breach by Seller of its representations Claims Period prior to seeking recovery from Seller, and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent if Purchaser's ’s claim is or can be satisfied from any such insurance policypolicies, Service Contract Operating Contracts or Lease and Leases; provided, for avoidance of doubt, that if Purchaser agrees is unable to first seek reimbursement of any claims satisfy its claim during the Claims Period from said insurance policysuch other sources, Service Contract or Lease prior Purchaser shall have the right to seeking indemnification from proceed against Seller in accordance with the Sellerpreceding sentence. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 of Fifteen Million Dollars ($350,000.000)15,000,000) and shall include any claims Purchaser has against 777 Main Seller under the 000 Xxxx Xxxxxxxx. In no event This Section 7.3 shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or 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 Capsurvive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's Closing Certificate, Article III hereof shall survive Closing for a period of nine one (91) months after Closingyear from the Closing Date (the “Survival Period”). Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 disclosed in writing to Purchaser and/or actually known to by Purchaser prior to Closing. Without limiting the foregoing, Seller shall have no liability for a breach of any representation or warranty unless (ba) unless the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars (more than $10,000.00) or more25,000, 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 belowin 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 nine (9) month period and an action shall have been commenced by Purchaser against Seller within eleven (11) months after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser prior to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement expiration of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the SellerSurvival Period. As used herein, the term "“Cap" ” shall mean the a total aggregate amount equal of $500,000, including attorneys’ fees. If Applicable Laws do not permit any specific time limitation provided for in this Section 3.25, then the parties agree alternatively that the applicable time limitation period applicable under this Section is instead deemed to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000)be the longer period that is the shortest period that Applicable Laws permit the parties to this Agreement to bind themselves to by mutual written agreement. In no the event Seller or Purchaser discovers a breach of or untruth, inaccuracy, or failure in any Seller’s representations or warranties set forth in Article III that will have a Material Adverse Effect (hereinafter collectively referred to as a “Breach”) and such Breach is discovered after the Study Period but before Closing, then the discovering party shall Seller's aggregate liability notify the other in writing of the Breach, and Seller may elect, but shall not be required, to attempt to correct such Breach by the Closing Date. If the Breach is not cured prior to the Closing Date, then the Purchaser for any shall, as its sole and all breaches of any representation or warranty of Seller in exclusive remedy, either (a) terminate this Agreement and the Exxxxxx Money (less the Independent Consideration in the case of Purchaser’s termination) shall be delivered to Purchaser, or Seller's Closing Certificate exceed the amount of the Cap, (b) waive such breach and Purchaser hereby waives and disclaims any right proceed to damages or compensation for any and all such breaches in excess of the CapClosing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Section 5.1, Section 11.3 and Section 12.3, as updated in accordance with the terms of this Agreement, and/or set forth in any estoppel certificate or other document or agreement delivered by Seller pursuant to this Agreement or in connection with the consummation of the transactions contemplated hereby (all such representations and warranties of Seller's Closing Certificate, collectively, the “Seller’s Representations”), shall survive Closing for a period of nine twelve (912) months after Closingmonths. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no No claim for a breach of any representation or warranty of Seller Seller’s Representation shall be actionable or payable 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches breaches, if any, collectively aggregate Ten more than Five Hundred Thousand and No/100 Dollars ($10,000.00) 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 below500,000), 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 nine twelve (912) month period and an action shall have been commenced by Purchaser Buyer against Seller within eleven sixty (1160) months days after the termination of the survival period provided for above in this Section 5, and (c) the Closing has occurred and Buyer did not have knowledge that the applicable Seller’s Representation was incorrect prior to Closing. In Buyer agrees to first seek recovery under any insurance policies, the event of any breach by Seller of its representations Title Policies and warranties contained herein which Purchaser first discovers after Closing other applicable agreements prior to seeking recovery from Seller, and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser Buyer to the extent Purchaser's Buyer’s claim is or can be actually satisfied from such insurance policies, Title Policies or other applicable agreements. Upon delivery of the Tenant Estoppels or Lessor Estoppel, Seller shall be entirely released from any insurance policyliability under Seller’s Representations concerning the information contained in such Tenant Estoppels or Lessor Estoppel, Service Contract as applicable, to the extent the same is consistent with, or Lease and Purchaser agrees more favorable than, the information contained in Seller’s Representations. Notwithstanding any provision of this Agreement to first seek reimbursement the contrary, in no event shall (i) Seller’s aggregate liability to Buyer for breach of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" shall mean the total aggregate ’s Representations exceed an amount equal to Three Hundred Fifty Thousand and No/100 Dollars one percent ($350,000.000). In no event shall Seller's aggregate liability to Purchaser 1%) of the Purchase Price, or (ii) Seller be liable for any and all breaches consequential damages of Buyer or any representation or warranty of Seller in this Agreement or 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 Cappunitive damages.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, 9 hereof as updated by Seller's as of the Closing Certificatein accordance with the terms of this Agreement, shall survive Closing for a period of nine one hundred eighty (9180) months after Closingdays except for the representation set forth in Section 9(a)(ix)(7) which shall survive Closing for a period of one (1) calendar year. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no No claim for a breach of any representation or warranty of Seller or either of the Partners 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 known to Purchaser Buyer prior to or at Closing. In the event Buyer obtains knowledge prior to Closing which renders any of the representations and warranties made by Seller or the Partners inaccurate in any material respect and Buyer nevertheless proceeds to Closing, Buyer shall be deemed to have waived its right to rely upon the applicable representation and warranty with respect to which Buyer had knowledge of inaccuracies prior to or at the Closing. Neither Seller nor the Partners shall have any liability to Buyer for a breach of any representation or warranty (ba) unless the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars ($10,000.00) or moremore than .0.05% of the Purchase Price, 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 belowin 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 the Partners prior to the expiration of said nine one hundred eighty (9180) month day period and an action shall have been commenced by Purchaser Buyer against Seller the Partners within eleven two hundred forty (11240) months after Closingdays of Closing which period shall be tolled for a period not to exceed an additional ninety (90) days if Buyer is seeking recovery from any insurer as required in the following sentence. In Buyer agrees to first seek recovery under any insurance policies prior to seeking recovery from the event of any breach by Seller of its representations Partners, and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller Partners shall not be liable to Purchaser Buyer if Buyer’s claim is satisfied from such insurance policies. Notwithstanding anything to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used contrary herein, the term "Cap" shall mean the total maximum aggregate amount equal which may be awarded to Three Hundred Fifty Thousand or collected by Buyer under this Agreement (including, without limitation, for any breach of representations and No/100 Dollars ($350,000.000warranties contained herein). In no event shall Seller's aggregate liability to Purchaser for , and any and all breaches documents executed pursuant hereto or in connection herewith, including, without limitation, the Deed, Xxxx of any representation or warranty of Seller in this Sale and Assignment and Assumption Agreement or Seller's Closing Certificate the Assignment of Partnership Interests, or for any reason whatsoever, shall under no circumstances whatsoever exceed the amount five percent (5%) of the Purchase Price (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”). This provision shall survive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated this Agreement and the documents to be delivered by Seller's Seller at the Closing Certificate, shall survive the Closing for a period of nine twelve (912) months and no action or claim based on a breach of any of such representations and warranties shall be commenced after the expiration of such period. Further, to the extent any such breach was either disclosed to Purchaser in writing prior to the Closing or was otherwise known by Purchaser to have existed as of the Closing Date and Purchaser nevertheless decides to proceed with the Closing, then such breach shall be deemed to have been waived, it being agreed that Purchaser shall not be entitled to accept the Deed at Closing and maintain an action thereafter for a breach of a representation or warranty of Seller which was known by Purchaser at the time of Closing. Except with respect In addition, during the period of the survivability of Seller’s representations and warranties provided above, Seller’s liability for a breach of its representations and warranties shall be limited to fraudulent misrepresentation the actual, out-of-pocket damages (but not any consequential, special or other damages) suffered by Purchaser as a result of the fact that a breach of any of Seller’s representations or warranties provided in Section 5.1 existed as of the Closing and such breach was not disclosed in writing to Purchaser prior to the Closing and was otherwise unknown to Purchaser as of the Closing Date; provided, however, that Seller’s liability for which Purchaser’s actual, out-of-pocket damages shall be limited to $250,000.00 in the Agreement is terminated under Section 6.2, in which event Section 6.2 aggregate and Purchaser shall apply, no not be entitled to make a claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) Seller’s representations and warranties if the breach in question results from or is based on alleged actual, out-of-pocket damages are less than $25,000.00 (but if the alleged damages are greater than $25,000.00, Purchaser may make a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless claim for the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars ($10,000.00) or more, in which event the full entire amount of such valid claims shall be actionableits actual, out-of-pocket damages, up to but not exceeding the amount a maximum of the Cap (as defined below$250,000.00), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior . Notwithstanding anything to the expiration of said nine (9) month period and an action shall have been commenced by Purchaser against Seller within eleven (11) months after Closing. In the event of any breach by Seller of its representations and warranties contrary contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" foregoing limitations shall mean not apply to the total aggregate amount equal to Three Hundred Fifty Thousand fraud or intentional misrepresentation of Seller, and No/100 Dollars ($350,000.000). In no event shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller nothing in this Agreement or Section 5.3 shall limit Seller's Closing Certificate exceed ’s obligations and liabilities as tenant under 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 CapLease.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, 5.1 hereof as updated by Seller's the certificate of Seller to be delivered to Purchaser at Closing Certificatein accordance with Section 4.2(g) hereof, shall survive Closing for a period of nine (9) months after months. After Closing. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, 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 known to Purchaser prior to ClosingClosing (it being agreed that information that is set forth in due diligence materials physically provided to Purchaser and/or all items made available in the electronic war room or in any Approved Estoppel received by Purchaser shall be deemed “known” to Purchaser), (b) unless the valid claims for all such breaches collectively aggregate Ten more than One Hundred Thousand and No/100 Dollars ($10,000.00) or more100,000.00), 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 nine (9) month period and an action shall have been commenced by Purchaser against Seller within eleven ten (1110) days after the termination of the survival period provided for above in this Section 5.3. Purchaser agrees, at de minimis cost, expense, liability or potential liability to Purchaser, and for a period of three (3) months after Closing. In the event Closing Date, to first seek recovery (without the requirement of filing any breach by Seller of its representations lawsuit) under any insurance policies, service contracts and warranties contained herein which Purchaser first discovers after Closing Leases prior to seeking recovery from Seller, and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's ’s claim is or can be satisfied from any such insurance policypolicies, Service Contract service contracts or Lease and the Leases; following the expiration of such three (3) month period, Purchaser agrees shall be free to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the pursue Seller. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to of Three Hundred Fifty Thousand Million and No/100 Dollars ($350,000.0003,000,000.00). In no event shall Seller's ’s aggregate liability to Purchaser for any and all breaches breach of any representation or warranty of Seller in this Agreement or Seller's the certificate to be delivered by Seller at Closing Certificate pursuant to Section 4.2(g) hereof exceed the amount of the Cap; provided, and Purchaser hereby waives and disclaims any right however, the Cap shall not apply to damages the prorations under this Agreement or compensation for any and all such breaches in excess of the CapSeller’s broker indemnity obligations under Section 8.1.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's Closing Certificate, shall survive Closing for a period of nine (9) months after Closing. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars ($10,000.00) 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 If Seller becomes aware prior to the expiration of said nine (9) month period and an action shall have been commenced by Purchaser against Seller within eleven (11) months after Closing. In the event of Closing that any breach by Seller of its representations and warranties contained herein which are untrue or has materially changed that would have a material and adverse effect on the Property necessitating update and disclosure to Purchaser, then upon written notice to Purchaser first discovers after Closing and provides timely notice as aforesaid, (“Seller’s Update Notice”) Seller shall indemnify have the right and hold obligation to promptly update its representations and warranties to reflect the then current actual facts, status, conditions, or and circumstances. If Purchaser harmless from and against any and all loss, damage, cost obtains actual knowledge (or expense resulting therefrom up is deemed to but not exceeding know in accordance with the Cap. Seller shall not be liable last sentence of this paragraph) prior to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement Closing of any claims from said insurance policymaterial breach or inaccuracy in Seller’s representations or warranties under this Agreement that would have a material and adverse effect on the Property, Service Contract through Seller’s Update Notice, or Lease prior through Purchaser’s own investigations, then as Purchaser’s sole remedy, Purchaser shall have the right to seeking indemnification from terminate this Agreement and receive a full refund of the Initial Deposit and the Additional Deposit and the Extension Deposits (if applicable) by written notice to Seller not later than five (5) business days after receiving Seller’s Update Notice or otherwise becoming aware of such breached or inaccurate representation or warranty. As used herein, the term "Cap" shall mean the total aggregate amount equal If Purchaser does not timely notify Seller of Purchaser’s election to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000). In no event shall terminate this Agreement as a consequence of Seller's aggregate liability to Purchaser for any and all breaches of any ’s Update Notice or upon becoming aware that Seller’s representation or warranty is untrue or materially inaccurate, then Purchaser shall be deemed to have waived any right or remedy that it otherwise might have as a consequence thereof and the applicable representation or warranty shall be deemed modified accordingly. For the avoidance of doubt, (i) Seller shall have no liability, except as specifically stated to the contrary in this Agreement or Seller's Closing Certificate exceed the amount of the CapSection 5.3(a), and Purchaser hereby waives and disclaims any right to damages or compensation for any misrepresentation or breach of warranty of which Purchaser becomes aware prior to Closing through Seller’s Update Notice or through Purchaser’s own investigations and (ii) all of Seller’s representations and warranties shall automatically be deemed modified to reflect any matters set forth in the Due Diligence Items or any other matters or information disclosed in writing to Purchaser or its agents, attorneys or representatives (including in any third party reports obtained by such breaches in excess of persons) prior to the CapClosing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller Sellers set forth in this Agreement, including, without limitation, Section 5.116(a) hereof, as updated by Seller's as of the Closing CertificateDate in accordance with the terms of this Agreement, shall survive Closing for a period of nine one hundred and eighty (9180) months after Closingdays, at which time they will be of no further force or effect except as hereinafter provided in this Section 16(d). Except with respect No Seller shall have liability to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no claim Purchaser for a breach of any representation or warranty of with respect to the Project owned by such 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 known to Purchaser prior to Closing, (bi) unless the valid claims for all such breaches with respect that Project only collectively aggregate Ten more than Fifty Thousand and No/100 Dollars ($10,000.00) or more50,000.00), 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 belowin this Section 16(d)), and (cii) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to such Seller prior to the expiration of said nine the one hundred and eighty (9180) month day survival period and an action shall have been commenced by Purchaser against such Seller within eleven thirty (1130) months days after Closing. In delivery of notice of the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Selleralleged breach. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three One Million Five Hundred Fifty Thousand and No/100 U.S. Dollars ($350,000.0001,500,000.00). In no event whatsoever shall Seller's aggregate Sellers have any liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or 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 CapCap for any claims asserted after Closing for a breach of Sellers’ representations and warranties set forth in this Agreement. At Closing, Sellers shall cause Inland Western Retail Real Estate Trust, Inc. (“Guarantor”) to execute and deliver to Purchaser a guaranty in the form attached hereto as Exhibit Q, whereby Guarantor shall agree to guarantee the obligations of Sellers up to the Cap pursuant to this Section 16(d) in the event of a claim by Purchaser of a breach by any Seller of its representations and warranties under this Agreement.

Survival of Seller’s Representations and Warranties. The Except as otherwise set forth in Section 9, the representations and warranties of Seller set forth in Section 5.1, 9 hereof as updated by Seller's as of the Closing Certificatein accordance with the terms of this Agreement, shall survive Closing for a period until the earlier to occur of nine (9i) months December 31, 2006 or (ii) the date which is one (1) year after Closing. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 known to Purchaser Buyer prior to or at Closing. In the event Buyer obtains knowledge prior to Closing which renders any of the representations and warranties made by Seller inaccurate in any material respect and Buyer nevertheless proceeds to Closing, Buyer shall be deemed to have waived its right to rely upon the applicable representation and warranty with respect to which Buyer had knowledge of inaccuracies prior to or at the Closing. Seller shall have no liability to Buyer for a breach of any representation or warranty (ba) unless the valid claims for all such breaches collectively aggregate Ten more than Twenty-Five Thousand and No/100 Dollars ($10,000.00) or more25,000.00), 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 belowin 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 nine one (91) month period year period. Buyer agrees to first seek recovery under any insurance policies prior to seeking recovery from Seller, and an action Seller shall have been commenced not be liable to Buyer if Buyer's claim is satisfied from such insurance policies. Notwithstanding anything to the contrary herein, the maximum aggregate amount which may be awarded to or collected by Purchaser against Buyer under this Agreement (including, without limitation, for any breach of representations and warranties contained herein), and any and all documents executed pursuant hereto or in connection herewith, including, without limitation, the Deed, Xxxx of Sale and Assignment and Assumption Agreement, or for any reason whatsoever, shall under no circumstances whatsoever exceed Five Hundred Thousand ($500,000.00) (the "Cap"). At Closing, Seller within eleven shall place Two-Hundred Fifty Thousand Dollars (11$250,000) months into escrow with Commercial Title Group, Inc. to be held as security for any claims brought by Buyer after Closing relating to a breach of a representation or warranty as contemplated in this Section 9(b) until the earlier to occur of (i) December 31, 2006 or (ii) the date which is one (1) year after Closing. In the event written notice of any such breach has not been given by Buyer to Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser prior to the extent Purchaser's claim is or can expiration of said aforementioned time period, the funds shall automatically be satisfied from any insurance policyreleased by Commercial Title Group, Service Contract or Lease Inc. and Purchaser agrees forwarded to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" This provision shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000). In no event shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or 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 Capsurvive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, 5.1 hereof as updated by Seller's the certificate of Seller to be delivered to Purchaser at Closing Certificatein accordance with Section 4.2(g) hereof, shall survive Closing for a period of nine twelve (912) months after Closingmonths. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten more than Fifty Thousand and No/100 Dollars ($10,000.00) or more50,000.00), 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 nine twelve (912) month period and an action shall have been commenced by Purchaser against Seller within eleven ten (1110) months days after Closingthe termination of the survival period provided for above in this Section 5.3. In the event of So long as Purchaser’s remedies against Seller are not impaired thereby, Purchaser agrees to first seek recovery under any breach by Seller of its representations insurance policies, service contracts and warranties contained herein which Purchaser first discovers after Closing Leases prior to seeking recovery from Seller, and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent if Purchaser's ’s claim is or can be satisfied from any such insurance policypolicies, Service Contract service contracts or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the SellerLeases. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three of One Million Five Hundred Fifty Thousand and No/100 Dollars ($350,000.0001,500,000.00). In no event shall Seller's ’s aggregate liability to Purchaser for any and all breaches breach of any representation or warranty of Seller in this Agreement or Seller's Agreement, and/or in (i) the assignment and assumption of Lease to be delivered by Seller at Closing Certificate pursuant to Section 4.2(c) hereof and/or (ii) the certificate to be delivered by Seller at Closing pursuant to Section 4.2(g) hereof, exceed the amount of the Cap. Except as expressly provided in the documents to be executed by Seller or Purchaser at Closing hereunder, and neither Seller nor Purchaser hereby waives and disclaims shall have any right liability under this Agreement or under any of the documents or instruments to damages be executed by Seller or compensation Purchaser at Closing hereunder for any and all such breaches in excess of the Capspeculative, consequential or punitive damages.

Survival of Seller’s Representations and Warranties. Seller shall promptly notify Purchaser in writing if, to Seller's Knowledge, any facts, circumstances or events occur after the Effective Date that would make any of the representations or warranties contained in Section 6.1 untrue at the Closing. If any of the representations or warranties of Seller contained in this Contract, as updated as permitted under this Contract, are not made accurate by Seller on or prior to the Closing, Purchaser may elect, as its sole remedy (unless the same were made inaccurate by a willful act of Seller in violation of this Contract by Seller, in which case Section 12.1 shall be applicable), to terminate this Contract prior to the Closing, in which event the Xxxxxxx Money shall be returned to Purchaser and the parties shall have no further obligations under this Contract except for those obligations that survive termination by their express terms. If Purchaser does not elect to terminate this Contract, then the representations and warranties of Seller shall be updated at Closing to reflect all matters disclosed by Seller. The representations and warranties of Seller set forth in Section 5.16.1, as they may be updated by Seller's Closing Certificateat Closing, (i) shall survive Closing for and expire two hundred seventy (270) days after the Closing Date (the "Survival Period") except to the extent, and only to the extent, if any, that Purchaser shall have given Seller written notice during such Survival Period which describes in reasonable detail the breach or alleged breach of such representations and warranties by Seller and, if curable, the curative actions requested by Purchaser, and which provides Seller with a reasonable period of nine time, not less than thirty (930) months days, in which to resolve such matters to the reasonable satisfaction of Purchaser; and (ii) shall expire and be of no further force and effect two (2) years after Closing. Except the day the cause of action accrues (which the parties agree will be the Closing Date) with respect to fraudulent misrepresentation for which the Agreement is terminated any matters timely disclosed in a written notice delivered by Purchaser to Seller under Section 6.2, in which event Section 6.2 subsection (i) hereof. Seller shall apply, have no claim liability to Purchaser 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars ($10,000.00) 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 nine (9) month period and an action the Survival Period. Furthermore, notwithstanding anything to the contrary contained in this Contract, if the Closing shall have been commenced by occurred: (a) Seller shall have no liability (and Purchaser shall make no claim against Seller within eleven (11Seller) months after Closing. In the event for a breach of any breach representation or warranty or any other obligation of Seller under this Contract or any document executed by Seller in connection with this Contract, unless the valid claims for actual damages incurred due to such breaches collectively exceed $25,000.00; (b) the liability of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice Seller for a breach of a representation or warranty under Section 6.1 or the Seller Bringdown Certificate (as aforesaiddefined in Section 9.2.1 below) shall in no event exceed, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding in the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used hereinaggregate, the term "Cap" shall mean the total aggregate amount equal to Three of Seven Hundred Fifty Thousand and No/100 Dollars ($350,000.000750,000.00). In ; and (c) in no event shall Seller's aggregate liability to Purchaser Seller be liable for any consequential or punitive damages, except in the case of fraud. Seller covenants and all breaches of any representation or warranty of Seller in this Agreement or Seller's agrees that from and after the Closing Certificate exceed until the amount last day of the CapSurvival Period, Seller shall maintain a minimum net worth as determined in accordance with generally accepted accounting principles of not less than Seven Hundred Fifty Thousand and Purchaser hereby waives No/100 Dollars ($750,000.00); provided, however, that if any written claim is made and disclaims any right delivered to damages or compensation for any and all such breaches in excess Seller prior to the last day of the CapSurvival Period, Seller shall continue to maintain, until such claim has been finally adjudicated or settled and paid to the extent required by such judgment or settlement, a net worth of not less than the lesser of (i) $750,000 or (ii) 125% of the reasonable amount required to satisfy such claim. Seller’s obligations under this Section 6.2 shall survive the Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of each Seller set forth in Section 5.15.1 hereof, as updated by Seller's the certificate of such Seller to be delivered to Purchaser at Closing Certificatein accordance with Section 4.2(f) hereof, shall survive Closing for a period of nine seven (97) months after Closing(such period being the “Survival Period”). Except with respect No Seller shall have any liability hereunder relating to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2a breach of a representation or warranty by any other Seller, in which event Section 6.2 it being agreed by Purchaser that any liabilities relating to a breach of a representation or warranty shall apply, no be several. No claim for a breach of any representation or warranty of any Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state one of facts or other matter which was known to Purchaser has knowledge prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten against any one or more of such Sellers (including, without limitation, all attorneys’ fees and court costs) exceed the lesser of Fifty Thousand and No/100 Dollars ($10,000.0050,000.00) for any single Seller or moreProperty or collectively aggregate to more than One Hundred Thousand and No/100 Dollars ($100,000.00) with respect to all Sellers and all Properties, 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 Purchaser has provided written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller Sellers prior to the expiration of said nine (9) month period the Survival Period and an action shall have been commenced by Purchaser against Seller within eleven the applicable Seller, if at all, prior to thirty (1130) months days after Closingthe expiration of the Survival Period. In For purposes of the event foregoing sentence, Purchaser shall be deemed to have “knowledge” of any such breach if (i) Purchaser has actual knowledge of such breach (including by Seller notification pursuant to Section 5.4(g)(iii)), (ii) such breach is disclosed in materials included in the Datasite as of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice 4 p.m. (Central Time) on December 18, 2014, (iii) such breach is disclosed in any exhibits or schedules to this Agreement, or (iv) such breach is disclosed by the Title Commitments or Surveys (as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000same may have been updated). In no event shall Seller's the total amount of all Sellers’ aggregate liability to Purchaser under this Agreement, including, without limitation, liability for any and all breaches breach of any representation or warranty of any Seller in this Agreement or Seller's and/or the certificate to be delivered by such Seller at Closing Certificate pursuant to Section 4.2(f) hereof, exceed the amount of One Million Eight Hundred Forty-Six Thousand Five Hundred and No/100 Dollars ($1,846,500.00) (in total, with respect to all Sellers and all Properties) (the “Cap”). Sellers shall deposit with the Title Company at Closing the full amount of the Cap, and Purchaser hereby waives and disclaims which amount shall be held in escrow during the Survival Period pursuant to the terms of an Escrow Agreement in the form of Exhibit J attached hereto (the “Holdback Escrow Agreement”); provided, however, that the Cap shall not apply to any right Seller’s liability with respect to damages prorations contained in Section 4.4, any Seller’s actual fraud, or compensation for any and all such breaches in excess Sellers’ liabilities under Section 8.1. Upon the expiration of the CapSurvival Period, if Purchaser shall not have filed any claim with respect to the provisions of this Section 5.3 in accordance with the terms and provisions of the Holdback Escrow Agreement, the Title Company shall, upon written request from Sellers, promptly disburse the Cap amount to Sellers pursuant to directions provided by Sellers despite any objection by Purchaser.

Survival of Seller’s Representations and Warranties. Subject to the “Cap” (as defined below), Seller hereby agrees to indemnify and hold Purchaser harmless from and against all claims, demands, liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees and disbursements, (i) that may be suffered or incurred by Purchaser if any representation or warranty made by Seller in this Article V was untrue or incorrect in any material respect when made (including the representations and warranties which are remade pursuant to Section 5.16 hereof) or that may be caused by any breach by Seller of this Agreement, or (ii) arising from or based on any failure by Seller to perform all obligations of Seller in accordance with the Leases, Contracts, Approvals, Permitted Exceptions or applicable laws before the Closing Date, or any third party property damage or personal injury occurring in, on or about the Property before the Closing Date. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's Closing Certificate, this Article V shall survive Closing for a period of nine (9) months after Closingonly. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no No claim for a breach of any representation or warranty of Seller indemnity under this Section 5.17 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 ClosingClosing (it being understood and agreed that Purchaser’s remedies with respect to any such breach actually discovered by Purchaser prior to Closing shall be as set forth in Section 11.1 below), (b) unless the valid claims for all such breaches collectively aggregate Ten Thousand and No/100 Dollars (more than $10,000.00) or more15,000, 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 the nine (9) month period set forth above and an action shall have been commenced by Purchaser against Seller within eleven (11) months a reasonable period of time after Closing. In the event termination of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Sellersurvival period provided for above in this Section 5.17. As used hereinin this Section 5.17, the term "“Cap" ” shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 Dollars (of $350,000.000)949,500. In no event shall Seller's ’s aggregate liability to Purchaser for any and all breaches breach of any representation or warranty of Seller in this Agreement or Seller's Closing Certificate Article V 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.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, as updated by Seller's ’s Closing Certificate, shall survive Closing for a period of nine one hundred eighty (9180) months days after Closing. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no No claim for a breach of any representation or warranty of Seller, nor any liability under a Seller Lease Estoppel Certificate, shall be actionable or payable (a) if the breach in question question, or condition addressed in the Seller Lease Estoppel Certificate, results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches and liability collectively aggregate Ten Twenty-Five Thousand and No/100 Dollars ($10,000.0025,000.00) 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 nine one hundred eighty (9180) month day period (or such shorter period as set forth in a Seller Lease Estoppel Certificate with respect thereto) and an action shall have been commenced by Purchaser against Seller within eleven two hundred seventy (11270) months days after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent if Purchaser's ’s claim is or can be satisfied from any insurance policy, Service Contract service contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the SellerLease. As used herein, the term "“Cap" ” shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 One Million Dollars ($350,000.0001,000,000.00). In no event shall Seller's ’s aggregate liability to Purchaser (i) for any and all breaches of any representation or warranty of Seller in this Agreement or Seller's ’s Closing Certificate exceed and (ii) pursuant to Seller Lease Estoppel Certificates, exceed, in the aggregate, 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 CapCap unless Seller shall have committed fraud in which event the Cap shall not be applicable to such claims of fraud.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1, 5.1 as updated by Seller's the certificate of Seller to be delivered to Purchaser at Closing Certificatein accordance with Section 4.2(g) hereof, shall survive Closing for a period of nine one hundred eighty (9180) months after Closingdays. Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no 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 known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate Ten more than One Hundred Twenty-Five Thousand and No/100 Dollars ($10,000.00) or more125,000), 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 nine One Hundred Eighty (9180) month day period and an action shall have been commenced by Purchaser against Seller within eleven Two Hundred Seventy (11270) months days of Closing. Notwithstanding anything to the contrary contained herein, the liability of Seller for a breach of representations and warranties shall not exceed One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) in the aggregate. Covenants of Seller. Seller hereby covenants with Purchaser as follows: From the Effective Date hereof until the Closing or earlier termination of this Agreement, Seller shall maintain its existing insurance coverage with respect to the Property, and Seller shall otherwise use reasonable efforts to operate and maintain the Property in a manner generally consistent with the manner in which Seller has operated and maintained the Property prior to the date hereof. Seller shall use reasonable efforts (but without obligation to incur any cost or expense other than a de minimis amount) to obtain and deliver to Purchaser prior to Closing, a written estoppel certificate in the form of Exhibit D attached hereto and made a part hereof signed by each tenant occupying space in the Improvements. The signed certificates are referred to herein as the "Tenant Estoppels". Seller shall use reasonable efforts (but without obligation to incur any cost or expense other than a de minimis amount) to obtain and deliver to Purchaser prior to Closing, a written estoppel certificate containing the information required by the terms of the Mall Agreements signed by each owner of any anchor parcel with respect to the Mall Agreements applicable to such owner and to obtain and deliver to Purchaser prior to Closing a written estoppel certificate containing the information required by the terms of the X.X. Penney Lease signed by X.X. Xxxxxx. The signed certificates are referred to herein as the "Anchor Estoppels". A copy of any renewal, expansion, amendment or other modification of an existing Lease or Mall Agreement ("Amended Lease") or of any new Lease which Seller wishes to execute between the Effective Date and the date of Closing will be submitted to Purchaser prior to execution by Seller. Purchaser agrees to notify Seller in writing within five (5) business days after Closingits receipt thereof of either its approval or disapproval, including all Tenant Inducement Costs and leasing commissions to be incurred in connection therewith. Purchaser is expressly under no obligation to approve an Amended Lease or new Lease. In the event Purchaser fails to notify Seller in writing of its approval or disapproval within the five (5) day time period for such purpose set forth above, such failure shall be deemed the approval by Purchaser. At Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs or leasing commissions, incurred by Seller pursuant to an Amended Lease or a new Lease approved (or deemed approved) by Purchaser. Seller will notify Purchaser of any breach of the following matters which occur from the Effective Date hereof until the Closing or earlier termination of this Agreement; (i) written notices of default received or given by Seller with respect to any Lease, any Operating Agreement or any Mall Agreement, (ii) material litigation commenced by Seller, or litigation of its representations which Seller has received written notice commenced or threatened against Seller, with respect to the Property (other than litigation covered by insurance as to which the insurer has been notified on a timely basis and warranties contained herein which Purchaser first discovers after Closing has not disclaimed liability), (iii) written notices of condemnation proceedings commenced or threatened against all or any portion of the Property received by Seller, (iv) casualty losses to the Property, and provides timely notice as aforesaid(v) written notices received from any governmental or quasi-governmental authority that there are any violations of environmental statutes, ordinances or regulations affecting the Property. Seller shall indemnify terminate that certain management agreement dated February 14, 1997, by and hold Purchaser harmless from between Seller and against any and all lossXxxxx Lang LaSalle Americas, damageInc., cost or expense resulting therefrom up to but not exceeding effective as of Closing (the Cap"Existing Agreement"). Seller shall not be liable terminate any Lease or Mall Agreement prior to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement Closing by reason of any claims from said insurance policytenant's or any anchor parcel owner's default without the prior written consent of Purchaser, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" which consent shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000). In no event shall Seller's aggregate liability to Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or 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 Capnot be unreasonably withheld.