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

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, as updated as of the Closing in accordance with the terms of this Agreement shall survive Closing for a period of six (6) months following the Closing (the “Outside Claim Date”). No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to 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 (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller on or prior to the Outside Claim Date, and an action shall have been commenced by Buyer against Seller within three (3) months after the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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. 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 5.1 hereof6.1, as they may be updated as of the Closing in accordance with the terms of this Agreement at 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 six time, not less than thirty (630) months following 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 the day the cause of action accrues (which the parties agree will be the Closing Date) with respect to any matters timely disclosed in a written notice delivered by Purchaser to Seller under subsection (the “Outside Claim Date”). No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Buyer prior to Closing, if Buyer elects to consummate the transactions described herein with such actual knowledgei) hereof. Seller shall have no liability to Buyer Purchaser for a breach of any representation or warranty unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Dateexpiration of the Survival Period. Furthermore, and an action notwithstanding anything to the contrary contained in this Contract, if the Closing shall have been commenced occurred: (a) Seller shall have no liability (and Purchaser shall make no claim against Seller) for a breach of any representation or warranty or any other obligation of Seller under this Contract or any document executed by Buyer against Seller within three in connection with this Contract, unless the valid claims for actual damages incurred due to such breaches collectively exceed $25,000.00; (3b) months the liability of Seller for a breach of a representation or warranty under Section 6.1 or the Seller Bringdown Certificate (as defined in Section 9.2.1 below) shall in no event exceed, in the aggregate, the amount of Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00); and (c) in no event shall Seller be liable for any consequential or punitive damages, except in the case of fraud. Seller covenants and agrees that from and after the Outside Claim Date. Buyer agrees Closing until the last day of the Survival 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 No/100 Dollars ($750,000.00); provided, however, that if any written claim is made and delivered to first seek recovery under any applicable insurance policies, service contracts and/or Leases Seller prior to seeking recovery from Sellerthe last day of the Survival Period, and Seller shall not be liable continue to Buyer maintain, until such claim has been finally adjudicated or settled and paid to the extent Buyer’s claim is satisfied from required by such insurance policiesjudgment or settlement, service contracts or Leases. As used herein, a net worth of not less than the term “Cap” shall mean the total aggregate amount equal to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, pursuant to an escrow agreement substantially in the form lesser of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 $750,000 or (ii) within one (1) Business Day after 125% of the final determination of all timely claimed indemnification payments owed reasonable amount required to Buyer satisfy such claim. Seller’s obligations under this Agreement and Section 6.2 shall survive the payment thereof to BuyerClosing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof5.1, as updated as of by Seller’s Closing Certificate, shall survive the Closing in accordance with until the terms of this Agreement shall survive Closing for a period of six date that is one hundred fifty (6150) months following days after the Closing Date (the “Outside Claim Expiration Date”). No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to 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 (a) unless the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Two Hundred Fifty Thousand Dollars ($75,000.00250,000.00) (the “Basket”)or more, in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to but not exceeding the amount of the Cap (as defined in this Sectionbelow), and (b) unless written notice containing a reasonable description of the specific nature of such breach known to Purchaser shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, and an action shall have been commenced by Buyer against Seller within three (3) months after the Outside Claim Expiration Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable released from liability to Buyer Purchaser for any such claim to the extent Buyer’s claim is satisfied from such Purchaser receives proceeds of or payment under an insurance policiespolicy, service contracts contract or LeasesLease for such claim. As used herein, the term “Cap” shall mean the total aggregate amount equal of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00). In no event shall Seller’s aggregate liability to $2,000,000.00 Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or Seller’s Closing Certificate exceed the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which 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 secure Seller’s liability under this Agreement as provided herein. Subject be set off against the Purchase Price; provided, however, that, subject to the provisions of this Section 5.3, Purchaser shall have the Holdback Escrow Agreementright 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 shall be entitled 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 receive, and this Section 5.3 after 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, deduction therefrom of (i) if there are no claims for indemnification against Seller or if there are no outstanding claims the amount of such claim for which payment Purchaser has not been made received payment from Seller (whether or are not such amount is in dispute, under this Agreement, within one (1excess of the Cap) Business Day after the Outside Claim Date or and (ii) within one (1) Business Day after all of the final determination costs and expenses actually incurred by Purchaser in connection with such refund of all timely claimed indemnification payments owed to Buyer under this Agreement and the payment thereof to Buyertransfer taxes.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof5.1, as updated as of the by Seller's Closing in accordance with the terms of this Agreement Certificate, shall survive Closing for a period of six nine (69) months following after Closing. Except with respect to fraudulent misrepresentation for which the Closing (the “Outside Claim Date”). No 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 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 Buyer Purchaser 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 (b) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Ten Thousand and No/100 Dollars ($75,000.0010,000.00) (the “Basket”)or more, in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to but not exceeding the amount of the Cap (as defined in this Sectionbelow), and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said nine (9) month period and an action shall have been commenced by Buyer Purchaser against Seller within three eleven (311) months after Closing. In the Outside Claim Dateevent 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. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer Purchaser to the extent Buyer’s Purchaser's claim is or can be satisfied from such any insurance policiespolicy, service contracts Service Contract or LeasesLease 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 ($2,000,000.00 350,000.000). 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 aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject and Purchaser hereby waives and disclaims any right to the provisions damages or compensation for any and all such breaches in excess of the Holdback 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 BuyerCap.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, as updated as by the certificate of the Seller to be delivered to Purchaser at Closing in accordance with the terms of this Agreement Section 4.2(g) hereof, shall survive Closing for a period of six one hundred eighty (6180) months following the Closing (the “Outside Claim Date”)days. 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 Buyer Purchaser 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 (b) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy One Hundred Twenty-Five Thousand Dollars ($75,000.00) (the “Basket”125,000), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section)claims shall be actionable, and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said One Hundred Eighty (180) day period and an action shall have been commenced by Buyer Purchaser against Seller within three Two Hundred Seventy (3270) months after days of Closing. Notwithstanding anything to the Outside Claim Datecontrary 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. Buyer agrees 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 first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Sellerthe Property, and Seller shall not be liable otherwise use reasonable efforts to Buyer 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 extent Buyer’s claim is satisfied from such insurance policies, service contracts date hereof. Seller shall use reasonable efforts (but without obligation to incur any cost or Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal expense other than a de minimis amount) to $2,000,000.00 in the aggregate. At the obtain and deliver to Purchaser prior to Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, pursuant to an escrow agreement substantially a written estoppel certificate in the form of Exhibit Q 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 “Holdback Escrow Agreement”), an amount information required by the terms of cash equal the Mall Agreements signed by each owner of any anchor parcel with respect to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject Mall Agreements applicable to such owner and to obtain and deliver to Purchaser prior to Closing a written estoppel certificate containing the provisions information required by the terms of the Holdback Escrow AgreementX.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 its 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 entitled deemed the approval by Purchaser. At Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs or leasing commissions, incurred by Seller pursuant to receive, and an Amended Lease or a new Lease approved (or deemed approved) by Purchaser. Seller will notify Purchaser of any of the Escrow Agent shall promptly pay to Seller, an amount equal to all amounts remaining in following matters which occur from the Holdback Escrow Fund, together with interest earned thereon, Effective Date hereof until the Closing or earlier termination of this Agreement; (i) if there are no claims for indemnification against written notices of default received or given by Seller with respect to any Lease, any Operating Agreement or if there are no outstanding claims for which payment has not been made or are in dispute, under this any Mall Agreement, within one (1) Business Day after the Outside Claim Date or (ii) within one material litigation commenced by Seller, or litigation of which Seller has received written notice commenced or threatened against Seller, with respect to the Property (1other than litigation covered by insurance as to which the insurer has been notified on a timely basis and has not disclaimed liability), (iii) Business Day after written notices of condemnation proceedings commenced or threatened against all or any portion of the final determination Property received by Seller, (iv) casualty losses to the Property, and (v) written notices received from any governmental or quasi-governmental authority that there are any violations of all timely claimed indemnification payments owed environmental statutes, ordinances or regulations affecting the Property. Seller shall terminate that certain management agreement dated February 14, 1997, by and between Seller and Xxxxx Lang LaSalle Americas, Inc., effective as of Closing (the "Existing Agreement"). Seller shall not terminate any Lease or Mall Agreement prior to Buyer under this Agreement and Closing by reason of any tenant's or any anchor parcel owner's default without the payment thereof to Buyerprior written consent of Purchaser, which consent shall not be unreasonably withheld.

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 hereof, as updated as of the Closing in accordance with the terms of this Agreement Article V shall survive Closing for a period of six nine (69) months following the Closing (the “Outside Claim Date”)only. No claim for a breach of any representation or warranty of Seller or indemnity under any such Seller Estoppel 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 Buyer 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), 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 (b) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”)15,000, in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section)claims shall be actionable, and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of the nine (9) month period set forth above and an action shall have been commenced by Buyer Purchaser against Seller within three (3) months a reasonable period of time after the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to termination of the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leasessurvival 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 of $949,500. In no event shall Seller’s aggregate liability to $2,000,000.00 Purchaser for breach of any representation or warranty of Seller in this Article V exceed the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 hereof, as updated as of the Closing 7.1 hereof and in accordance with the terms of this Agreement any Seller Estoppel (defined below) shall survive Closing for a period of six nine (69) months following the Closing (the “Outside Claim DateClaims Period”). No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which that was actually known to Buyer Purchaser prior to Closing, if Buyer elects to consummate the transactions described herein with such actual knowledgeincluding any information disclosed by any Estoppel Certificate (defined below). Seller shall have no liability to Buyer Purchaser for a breach of any representation or warranty unless (a) the valid claims for all such breaches, together with any breaches by 777 Main Seller under the 777 Main Contract, collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand One Million Dollars ($75,000.00) (the “Basket”1,000,000), in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of the Claims Period and an action shall have been commenced by Buyer Purchaser against Seller within three prior to thirty (330) months after days following the Outside Claim Dateexpiration of the Claims Period. Buyer Purchaser agrees to use commercially reasonable efforts to first seek recovery under any applicable insurance policies, service contracts and/or Operating Contracts and Leases during the Claims Period prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent BuyerPurchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts Operating Contracts or Leases; provided, for avoidance of doubt, that if Purchaser is unable to satisfy its claim during the Claims Period from such other sources, Purchaser shall have the right to proceed against Seller in accordance with the preceding sentence. As used herein, the term “Cap” shall mean the total aggregate amount equal to of Fifteen Million Dollars ($2,000,000.00 in 15,000,000) and shall include any claims Purchaser has against 777 Main Seller under the aggregate000 Xxxx Xxxxxxxx. At the This Section 7.3 shall survive Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 hereof, hereof as updated as by the certificate of the Seller to be delivered to Purchaser at Closing in accordance with the terms of this Agreement Section 4.2(g) hereof, shall survive Closing for a period of six twelve (612) months following the Closing (the “Outside Claim Date”)months. 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 Buyer Purchaser 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 (b) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Fifty Thousand and No/100 Dollars ($75,000.00) (the “Basket”50,000.00), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section)claims shall be actionable, and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said twelve (12) month period and an action shall have been commenced by Buyer Purchaser against Seller within three ten (310) months days after the Outside Claim Datetermination of the survival period provided for above in this Section 5.3. Buyer So long as Purchaser’s remedies against Seller are not impaired thereby, Purchaser agrees to first seek recovery under any applicable insurance policies, service contracts and/or and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent BuyerPurchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or the Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00). In no event shall Seller’s aggregate liability to $2,000,000.00 Purchaser for breach of any representation or warranty of Seller in this Agreement, and/or in (i) the assignment and assumption of Lease to be delivered by Seller at Closing 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 aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) documents to be executed by Seller depositing with Escrow Agentor Purchaser at Closing hereunder, pursuant to an escrow agreement substantially in the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap, which neither Seller nor Purchaser shall secure Seller’s have any liability under this Agreement as provided herein. Subject to the provisions or under any of the Holdback Escrow Agreement, Seller shall documents or instruments to 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 executed by Seller or if there are no outstanding claims Purchaser at Closing hereunder for which payment has not been made any speculative, consequential 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 Buyerpunitive damages.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, as updated as of the Closing in accordance with the terms of this Agreement Article III hereof shall survive Closing for a period of six one (61) months following year from the Closing Date (the “Outside Claim DateSurvival Period”). No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable 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 Buyer by Purchaser prior to Closing. Without limiting the foregoing, 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 (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”)25,000, in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, and an action shall have been commenced by Buyer Purchaser against Seller within three (3) months after the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leasesexpiration of the Survival 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 $2,000,000.00 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 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 aggregate. At the Study Period but before Closing, then the discovering party shall notify the other in writing of the Breach, and Seller and Buyer may elect, but shall create an escrow fund (not be required, to attempt to correct such Breach by the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, pursuant to an escrow agreement substantially in Closing Date. If the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal Breach is not cured prior to the CapClosing Date, which shall secure Seller’s liability under this Agreement then the Purchaser shall, as provided herein. Subject to the provisions of the Holdback Escrow Agreementits sole and exclusive remedy, 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, either (ia) 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 terminate this Agreement and the payment thereof Exxxxxx Money (less the Independent Consideration in the case of Purchaser’s termination) shall be delivered to BuyerPurchaser, or (b) waive such breach and proceed to Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Section 5.1 hereof5.1, Section 11.3 and Section 12.3, as updated as of the Closing 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, collectively, the “Seller’s Representations”), shall survive Closing for a period of six twelve (612) months following the Closing (the “Outside Claim Date”)months. No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel Seller’s Representation shall be actionable or payable if unless each of the breach in question results from or following conditions is based on a condition, state of facts or other matter which was actually known to 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 satisfied: (a) the valid claims for all such breaches breaches, if any, collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Hundred Thousand Dollars ($75,000.00) (the “Basket”500,000), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller on or prior to the Outside Claim Date, expiration of said twelve (12) month period and an action shall have been commenced by Buyer against Seller within three sixty (360) months days after the Outside Claim Datetermination 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. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases the Title Policies and other applicable agreements prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s claim is actually satisfied from such insurance policies, service contracts Title Policies or Leasesother applicable agreements. As used herein, the term “Cap” shall mean the total aggregate amount equal to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions Upon delivery of the Holdback Escrow AgreementTenant Estoppels or Lessor Estoppel, Seller shall be entitled entirely released from any liability under Seller’s Representations concerning the information contained in such Tenant Estoppels or Lessor Estoppel, as applicable, to receivethe extent the same is consistent with, and or more favorable than, the Escrow Agent information contained in Seller’s Representations. Notwithstanding any provision of this Agreement to the contrary, in no event shall promptly pay (i) Seller’s aggregate liability to Buyer for breach of any Seller, ’s Representations exceed 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 percent (1%) Business Day after of the Outside Claim Date Purchase Price, or (ii) within one (1) Business Day after the final determination Seller be liable for any consequential damages of all timely claimed indemnification payments owed to Buyer under this Agreement and the payment thereof to Buyeror any punitive damages.

Survival of Seller’s Representations and Warranties. (a) The representations and warranties of Seller set forth in Section 5.1 hereof5.1, as updated as of the by Seller’s Closing in accordance with the terms of this Agreement Certificate, shall survive Closing for a period of six one hundred eighty (6180) months following the Closing (the “Outside Claim Date”)days after Closing. 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 Buyer Purchaser 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 (b) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five One Hundred Fifty Thousand Dollars ($75,000.00150,000.00) (the “Basket”)or more, in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to but not exceeding the amount of the Cap (as defined in this Sectionbelow), and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said one hundred eighty (180) day period and an action shall have been commenced by Buyer Purchaser against Seller within three two hundred ten (3210) months days after the Outside Claim DateClosing. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer Purchaser to the extent BuyerPurchaser’s claim is satisfied from such any insurance policiespolicy, service contracts Service Contract or LeasesLease. As used herein, the term “Cap” shall mean the total aggregate amount equal of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00). In no event shall Seller’s aggregate liability to $2,000,000.00 Purchaser for any and all breaches of any representation or warranty of Seller in this Agreement or Seller’s Closing Certificate exceed the aggregate. At 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. (b) Until Closing, Seller and Buyer shall create an escrow fund (have the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, pursuant right to an escrow agreement substantially update any representation or warranty in the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal this Agreement to correct any mistake or to reflect any matter which arises subsequent to the Cap, date of this Agreement. If Purchaser has knowledge of any matter which shall secure would constitute a material breach of Seller’s liability under this Agreement representations and warranties, Purchaser shall notify Seller of such material breach within the earlier of five (5) business days of learning of same and the Closing Date, failing such notice Purchaser shall be deemed to waive any such material breach of Seller’s representations and warranties. Seller shall have the right to contest Purchaser’s determination as provided hereinto a material breach of Seller’s representations and warranties, and shall have the right to attempt to cure such breach without being obligated to cure. Subject to the provisions of the Holdback Escrow AgreementIn addition, Seller shall have until the date that is the later of the originally scheduled Closing Date or thirty (30) days from the date of Purchaser’s notice to cure any such material breach of Seller’s representations and warranties and, at Seller’s sole option, the Closing Date shall be entitled extended to receivesuch thirtieth (30th) day (or any earlier business day) after Purchaser’s notice to permit such cure by Seller. If Seller fails to cure any such material breach of Seller’s representations and warranties, then Purchaser, as its sole and exclusive remedy, shall have the right to terminate this Agreement by written notice to Seller, in which case Escrow Agent shall promptly pay return the Xxxxxxx Money to SellerPurchaser and neither party to this Agreement shall thereafter have any further right or obligation hereunder, an amount equal to all amounts remaining in other than those obligations that expressly survive 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 termination of this Agreement, within one (1) Business Day after . Seller’s representations are limited to the Outside Claim Date or (ii) within one (1) Business Day after extent that Seller provided Purchaser with materials and information concerning the final determination Property prior to the date of all timely claimed indemnification payments owed to Buyer under this Agreement and the payment thereof that contain provisions that are inconsistent with any of Seller representations, then Seller’s representations shall be deemed modified to Buyerconform to such provisions.

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 hereof, 9 hereof as updated as of the Closing in accordance with the terms of this Agreement Agreement, shall survive Closing for a period until the earlier to occur of six (6i) months following December 31, 2006 or (ii) the Closing date which is one (the “Outside Claim Date”)1) year after Closing. No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to 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, if Buyer elects shall be deemed to consummate have waived its right to rely upon the transactions described herein applicable representation and warranty with such actual knowledgerespect 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 unless (a) unless the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Twenty-Five Thousand Dollars ($75,000.00) (the “Basket”25,000.00), in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to the Cap (as defined in this Section), and (b) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller on or prior to the Outside Claim Date, and an action shall have been commenced by Buyer against Seller within three expiration of said one (31) months after the Outside Claim Dateyear period. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases policies prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent if Buyer’s 's claim is satisfied from such insurance policies, service contracts or Leases. As used Notwithstanding anything to the contrary herein, the term “Cap” shall mean the total maximum aggregate amount equal which may be awarded to or collected by 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 ($2,000,000.00 in 500,000.00) (the aggregate"Cap"). At the Closing, Seller and shall place Two-Hundred Fifty Thousand Dollars ($250,000) into escrow with Commercial Title Group, Inc. to be held as security for any claims brought by Buyer shall create an escrow fund (after Closing relating to a breach of a representation or warranty as contemplated in this Section 9(b) until the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, pursuant earlier to an escrow agreement substantially in the form occur of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 December 31, 2006 or if there are no outstanding claims for (ii) the date which payment has not been made or are in dispute, under this Agreement, within is one (1) Business Day year after Closing. In the Outside Claim Date or (ii) within one (1) Business Day after event written notice of such breach has not been given by Buyer to Seller prior to the final determination expiration of all timely claimed indemnification payments owed said aforementioned time period, the funds shall automatically be released by Commercial Title Group, Inc. and forwarded to Buyer under this Agreement and the payment thereof to BuyerSeller. This provision shall survive Closing.

Survival of Seller’s Representations and Warranties. The Upon Closing hereunder, the covenants, representations and warranties of Seller set forth in Section 5.1 hereof4.01 above, as updated modified by the certificate delivered from Seller to Buyer at Closing as described in Section 7.03, shall be deemed remade as of the Closing in accordance with the terms of this Agreement Date and shall survive the Closing for a period of six one (61) months following year. However, notwithstanding anything to the Closing (contrary herein, to the “Outside Claim Date”). No claim for a breach of extent that any representation documents or warranty of information regarding Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or Property is based on a condition, state of facts or other matter which was actually known disclosed to Buyer in writing or brought to Buyer's attention in writing prior to Closing, if and Buyer elects nevertheless closes the purchase of the Property, Buyer shall be deemed to consummate the transactions described herein with have accepted and to have waived any objection to or claim based on such actual knowledgedocuments or information. If Seller shall have no liability to Buyer for a breach of defaults in any obligation, representation or warranty unless (athat expressly survives Closing and that Buyer has not been deemed to have accepted or to have waived pursuant to the immediately preceding sentence, then subject to the limitation on survival set forth in this Section Buyer may seek damages against Seller for such default as well as such other relief as may be available at law or equity, and Buyer will not be deemed to have waived its right to sue for damages by having closed this transaction even though the accxxxcy of representations and warranties was a condition precedent to Buyer's obligation to close as set forth in Section 6.01(a) below. Notwithstanding anything in this Section 4.02 to the valid claims for all such breaches collectively delivered contrary, Seller shall not be obligated to pay any damages or other amounts pursuant hereto or thereto to this Section 4.02 until the aggregate more than Seventy amount sought by Buyer hereunder exceeds Twenty-Five Thousand Dollars ($75,000.0025,000.00) (the “Basket”"SELLER THRESHOLD AMOUNT"), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller on or prior to the Outside Claim Date, and an action shall have been commenced by Buyer against Seller within three (3) months after the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback Escrow Agreement, whereupon Seller shall be entitled to receive, and the Escrow Agent shall promptly pay to Seller, an amount equal to liable for all amounts remaining in (including the Holdback Escrow Fund, together with interest earned thereon, (iSeller Threshold Amount) 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 relief and/or a remedy may be sought by Buyer under this Agreement and Section 4.02. The immediately preceding sentence shall survive the payment thereof to BuyerClosing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, as updated as of the Closing in accordance with the terms of this Agreement hereof shall survive Closing for a period of six one (61) months following the Closing (the “Outside Claim Date”)year. No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Buyer Purchaser prior to Closing, if Buyer elects to consummate the transactions described herein with such actual knowledge. Seller shall have no liability to Buyer Purchaser for a breach of any representation or warranty unless (a) 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 delivered pursuant hereto or thereto aggregate more than Seventy Five Hundred Thousand Dollars ($75,000.00) (the “Basket”500,000), in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to the Cap (as defined in this Section), and (b) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said one (1) year period and an action shall have been commenced by Buyer Purchaser against Seller within three one (31) months after the Outside Claim Dateyear and ninety (90) days of Closing. Buyer Purchaser agrees to first seek recovery under any applicable insurance policies, service contracts and/or and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s Purchaser if Purchaser's claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “"Cap” " shall mean the total aggregate amount equal of One Million Dollars ($1,000,000) with respect to $2,000,000.00 in any and all claims relating to this Property and to the aggregate. At 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 Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, Property pursuant to an escrow agreement substantially in purchase and sale agreements of even date. This Section 5.3 shall have no application to any claims of Purchaser with respect to warranties of title conveyed by the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 BuyerDeed.

Survival of Seller’s Representations and Warranties. The (a) If Seller becomes aware prior to the Closing that any of its representations and warranties 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 (“Seller’s Update Notice”) Seller shall have the right and obligation to promptly update its representations and warranties to reflect the then current actual facts, status, conditions, or and circumstances. If Purchaser obtains actual knowledge (or is deemed to know in accordance with the last sentence of this paragraph) prior to Closing of any material breach or inaccuracy in Seller’s representations or warranties under this Agreement that would have a material and adverse effect on the Property, through Seller’s Update Notice, or through Purchaser’s own investigations, then as Purchaser’s sole remedy, Purchaser shall have the right to 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. If Purchaser does not timely notify Seller of Purchaser’s election to terminate this Agreement as a consequence of Seller’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 Section 5.3(a), 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 persons) prior to the Closing. (b) Except for matters that Purchaser obtains actual knowledge (or is deemed to know) of prior to Closing (which shall not survive the Closing), the representations and warranties of Seller set forth in Section 5.1 hereof, as updated as of the Closing in accordance with the terms of this Agreement hereof shall survive Closing for a period of six nine (69) months following the Closing only (the “Outside Claim DateSurvival Period”). No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel set forth in Section 5.1 hereof shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to 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 (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”), in which event the amount of such valid claim or claims, shall be actionable for individually or in the full amount of such claimsaggregate, up to the Cap (as defined in this Section)exceeds $75,000, and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of the Survival Period and an action shall have been commenced by Buyer Purchaser against Seller within three thirty (330) months days after the Outside Claim Dateexpiration of the Survival Period. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller In no event shall not be liable to Buyer to the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s aggregate liability to Purchaser under this Agreement as provided herein. Subject or any of the documents to be delivered by Seller to Purchaser pursuant to the provisions terms hereof, including, without limitation, any breach of the Holdback Escrow representations and warranties of Seller in this Agreement, Seller shall be entitled to receive, and the Escrow Agent shall promptly pay to Seller, exceed an amount equal to all two and one-half percent (2.5%) of the Purchase Price (the “Cap”); provided that, the Cap shall not include amounts remaining in the Holdback Escrow Fund, together with interest earned thereon, (i) if there are no claims for indemnification against Seller payable pursuant to Section 8.1 or Section 10.24 or if there are no outstanding claims for which payment has not been made or are in dispute, it is determined by a court of competent jurisdiction that Xxxxxx committed fraud with respect to the transaction contemplated 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 hereof5.1, as updated as of the by Seller’s Closing in accordance with the terms of this Agreement Certificate, shall survive Closing for a period of six one hundred eighty (6180) months following the Closing (the “Outside Claim Date”)days after Closing. No claim for a breach of any representation or warranty of Seller, nor any liability under a Seller or under any such 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 actually known to Buyer Purchaser 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 (b) unless (a) the valid claims for all such breaches and liability collectively delivered pursuant hereto or thereto aggregate more than Seventy Twenty-Five Thousand Dollars ($75,000.0025,000.00) (the “Basket”)or more, in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to but not exceeding the amount of the Cap (as defined in this Sectionbelow), and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said one hundred eighty (180) 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 Buyer Purchaser against Seller within three two hundred seventy (3270) months days after the Outside Claim DateClosing. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent BuyerPurchaser if Purchaser’s claim is satisfied from such any insurance policiespolicy, service contracts contract or LeasesLease. As used herein, the term “Cap” shall mean the total One Million Dollars ($1,000,000.00). In no event shall Seller’s aggregate amount equal liability to $2,000,000.00 Purchaser (i) for any and all breaches of any representation or warranty of Seller in this Agreement or Seller’s Closing Certificate and (ii) pursuant to Seller Lease Estoppel Certificates, exceed, in the aggregate. At , the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject and Purchaser hereby waives and disclaims any right to the provisions damages or compensation for any and all such breaches in excess of the Holdback Escrow Agreement, Cap unless Seller shall have committed fraud in which event the Cap shall not be entitled applicable 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 such 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 Buyerfraud.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, 9 hereof as updated as of the Closing in accordance with the terms of this Agreement Agreement, shall survive Closing for a period of six one hundred eighty (6180) months following days except for the representation set forth in Section 9(a)(ix)(7) which shall survive Closing for a period of one (the “Outside Claim Date”)1) calendar year. No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel either of the Partners shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to 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, if Buyer elects shall be deemed to consummate have waived its right to rely upon the transactions described herein applicable representation and warranty with such actual knowledgerespect to which Buyer had knowledge of inaccuracies prior to or at the Closing. Neither Seller nor the Partners shall have no any liability to Buyer for a breach of any representation or warranty unless (a) unless the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (.0.05% of the “Basket”)Purchase Price, in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to the Cap (as defined in this Section), and (b) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller on or the Partners prior to the Outside Claim Date, expiration of said one hundred eighty (180) day period and an action shall have been commenced by Buyer against Seller the Partners within three two hundred forty (3240) months after days 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 Outside Claim Datefollowing sentence. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases policies prior to seeking recovery from Sellerthe Partners, and Seller the Partners shall not be liable to Buyer to the extent if Buyer’s claim is satisfied from such insurance policies, service contracts or Leases. As used Notwithstanding anything to the contrary herein, the term “Cap” shall mean the total maximum aggregate amount equal which may be awarded to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) or collected by Seller depositing with Escrow Agent, pursuant to an escrow agreement substantially in the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 (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 payment thereof to BuyerDeed, Xxxx of Sale and Assignment and Assumption Agreement or the Assignment of Partnership Interests, or for any reason whatsoever, shall under no circumstances whatsoever exceed five percent (5%) of the Purchase Price (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 hereof, as updated as of this Agreement and the documents to be delivered by Seller at the Closing in accordance with the terms of this Agreement shall survive the Closing for a period of six twelve (612) months following 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. 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 the actual, out-of-pocket damages (but not any consequential, special or other damages) suffered by Purchaser as a result of the “Outside Claim 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”). No ; provided, however, that Seller’s liability for Purchaser’s actual, out-of-pocket damages shall be limited to $250,000.00 in the aggregate and Purchaser shall not be entitled to make a claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable 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 actually known to Buyer prior to Closing, if Buyer elects to consummate claim for the transactions described herein with such actual knowledge. Seller shall have no liability to Buyer for a breach of any representation or warranty unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”), in which event the entire amount of such valid claimsits actual, shall be actionable for the full amount of such claimsout-of-pocket damages, up to the Cap (as defined in this Sectiona maximum of $250,000.00), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller on or prior . Notwithstanding anything to the Outside Claim Datecontrary contained herein, and an action the foregoing limitations shall have been commenced by Buyer against Seller within three (3) months after not apply to the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from fraud or intentional misrepresentation of Seller, and Seller nothing in this Section 5.3 shall not be liable to Buyer to the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure limit Seller’s liability obligations and liabilities as tenant under this Agreement as provided herein. Subject to the provisions of the Holdback 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 BuyerLease.

Survival of Seller’s Representations and Warranties. The 5.2.1. At Closing, Seller shall deliver to Purchaser a certificate of the Seller which will confirm that the warranties and representations are in all material respects true and correct as of the date of the Closing (to the best of Seller's knowledge, where so specified above), subject to changes for matters beyond Seller's control and otherwise as expressly permitted or contemplated by this Agreement. Seller's representations and warranties of Seller set forth in Section 5.1 hereof, as updated as of shall survive the Closing in accordance with the terms of this Agreement shall survive Closing Date for a period of six three (63) months following years. 5.2.2. If, prior to the Closing Date, any event or circumstance occurs or first becomes actually known (without imputation and without duty of inquiry) to Purchaser, or written notice thereof is first actually received by Purchaser, and if the “Outside Claim Date”). No claim for same would make false in a breach of material manner any representation or warranty of Seller or under any hereunder (a "CHANGE"), then, notwithstanding anything to the contrary in this Agreement, but subject to Seller's cure right provided for in the next sentence, Purchaser may elect to terminate this Agreement after providing Seller ten (10) days' notice within which to cure such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Buyer prior to Closing, if Buyer elects to consummate the transactions described herein with such actual knowledgeChange. Seller shall notify Purchaser whether Seller will undertake to cure the event or circumstance which gave rise to such Change. Seller will have no liability a reasonable period of time, consistent with what would customarily need to Buyer for a breach of any representation be done to cure such event or warranty unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”)circumstance, in which event order to effect the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller on or prior to the Outside Claim Date, and an action shall have been commenced by Buyer against Seller within three (3) months after the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal to $2,000,000.00 in the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Capcure, which shall secure will be at Seller’s liability under 's sole cost and expense. If Seller notifies Purchaser that it will not undertake to cure such event or circumstance, then Purchaser may terminate this Agreement as provided herein. Subject to the provisions of the Holdback Escrow Agreementfor above in this Section 5.2.2., and upon such termination, Seller shall be entitled to receive, and will instruct the Escrow Agent to return the Xxxxxxx Money Deposit to Purchaser, and thereupon neither Purchaser nor Seller shall promptly pay have any further rights against the other, except for such provisions of this Agreement specifically intended to survive such termination. 5.2.3. If such Change is attributable to the intentional acts or bad faith of Seller, an amount equal Purchaser may elect to all amounts remaining terminate this Agreement without permitting Seller to cure as provided in Section 5.2.2. above, and in the Holdback Escrow Fund, together event of such termination Purchaser shall have such remedies with interest earned thereon, (i) if there are no claims respect to such Change as provided 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 BuyerSection 9.2. hereof.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller Sellers set forth in this Agreement, including, without limitation, Section 5.1 16(a) hereof, as updated as of the Closing Date in accordance with the terms of this Agreement Agreement, shall survive Closing for a period of six one hundred and eighty (6180) months following the Closing (the “Outside Claim Date”days, at which time they will be of no further force or effect except as hereinafter provided in this Section 16(d). No claim Seller shall have liability to Purchaser for a breach of any representation or warranty of Seller or under any with respect to the Project owned by such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to 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 (i) unless (a) the valid claims for all such breaches with respect that Project only collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Fifty Thousand Dollars ($75,000.00) (the “Basket”50,000.00), in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to the Cap (as defined in this SectionSection 16(d)), and (bii) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to such Seller on or prior to the Outside Claim Date, expiration of the one hundred and eighty (180) day survival period and an action shall have been commenced by Buyer Purchaser against such Seller within three thirty (330) months days after delivery of notice of the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s claim is satisfied from such insurance policies, service contracts or Leasesalleged breach. As used herein, the term “Cap” shall mean One Million Five Hundred Thousand U.S. Dollars ($1,500,000.00). In no event whatsoever shall Sellers have any liability to Purchaser in excess of the total aggregate amount equal to $2,000,000.00 Cap for any claims asserted after Closing for a breach of Sellers’ representations and warranties set forth in the aggregatethis Agreement. At the Closing, Seller and Buyer Sellers shall create an escrow fund cause Inland Western Retail Real Estate Trust, Inc. (the “Holdback Escrow FundGuarantor”) by Seller depositing with Escrow Agent, pursuant to an escrow agreement substantially execute and deliver to Purchaser a guaranty in the form attached hereto as Exhibit Q, whereby Guarantor shall agree to guarantee the obligations of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal Sellers up to the Cap, which shall secure Seller’s liability under Cap pursuant to this Agreement as provided herein. Subject to the provisions of the Holdback Escrow Agreement, Seller shall be entitled to receive, and the Escrow Agent shall promptly pay to Seller, an amount equal to all amounts remaining Section 16(d) in the Holdback Escrow Fund, together with interest earned thereon, (i) if there are no claims for indemnification against event of a claim by Purchaser of a breach by any Seller or if there are no outstanding claims for which payment has not been made or are in dispute, of its representations and warranties 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 hereof, 8 as updated as of the by any certificate delivered to Purchaser at Closing in accordance with the terms of this Agreement Section 11 hereof, shall survive Closing for a period of six (6) months following the Closing (the “Outside Claim Date”)months. No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable (a) unless it is determined that any of the foregoing representations and warranties of Seller were not accurate in any material respect as of the date hereof or as of the date of Closing, and Seller had "knowledge" (as defined in this Article 8) of such inaccuracy as of the date hereof, (b) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Buyer Purchaser 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 (c) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Twenty Five Thousand and 00/100 Dollars ($75,000.00) (the “Basket”25,000.00), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section)claims shall be actionable, and (bd) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said six (6) month period and an action shall have been commenced by Buyer Purchaser against Seller within three thirty (330) months days after the Outside Claim Datetermination of the survival period provided for above in this Section 8.9. Buyer Purchaser agrees to first seek recovery under any applicable insurance policies, service contracts and/or and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent Buyer’s Purchaser if Purchaser's claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “"Cap” " shall mean the total aggregate amount equal of Two Hundred Fifty Thousand and No/100 ($250,000.00). In no event shall Seller's aggregate liability to $2,000,000.00 Purchaser for breach of any representation or warranty of Seller in this Agreement or the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) certificate to be delivered by Seller depositing with Escrow Agent, at Closing pursuant to an escrow agreement substantially in Section 11.2 hereof exceed the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 hereof, as updated as of the Closing 7.1 hereof and in accordance with the terms of this Agreement any Seller Estoppel (defined below) shall survive Closing for a period of six nine (69) months following the Closing (the “Outside Claim DateClaims Period”). No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which that was actually known to Buyer Purchaser prior to Closing, if Buyer elects to consummate the transactions described herein with such actual knowledgeincluding any information disclosed by any Estoppel Certificate (defined below) or any Ground Lessor Estoppel (defined below). Seller shall have no liability to Buyer 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 delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand One Million Dollars ($75,000.00) (the “Basket”1,000,000), in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to the Cap (as defined in this Section), and (b) written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of the Claims Period and an action shall have been commenced by Buyer Purchaser against Seller within three prior to thirty (330) months after days following the Outside Claim Dateexpiration of the Claims Period. Buyer Purchaser agrees to use commercially reasonable efforts to first seek recovery under any applicable insurance policies, service contracts and/or Operating Contracts and Leases during the Claims Period prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent BuyerPurchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts Operating Contracts or Leases; provided, for avoidance of doubt, that if Purchaser is unable to satisfy its claim during the Claims Period from such other sources, Purchaser shall have the right to proceed against Seller in accordance with the preceding sentence. As used herein, the term “Cap” shall mean the total aggregate amount equal to of Fifteen Million Dollars ($2,000,000.00 in 15,000,000) and shall include any claims Purchaser has against Greenway Seller under the aggregateGreenway Contract. At the This Section 7.3 shall survive Closing, Seller and Buyer shall create an escrow fund (the “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”), an amount of cash equal to the Cap, which shall secure Seller’s liability under this Agreement as provided herein. Subject to the provisions of the Holdback 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 hereof, hereof as updated as by the certificate of the Seller to be delivered to Purchaser at Closing in accordance with the terms of this Agreement Section 4.2(g) hereof, shall survive Closing for a period of six nine (69) months following the Closing (the “Outside Claim Date”)months. No After Closing, 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 Buyer 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), 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 (b) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five One Hundred Thousand and No/100 Dollars ($75,000.00) (the “Basket”100,000.00), in which event the amount of such valid claims, shall be actionable for the full amount of such claims, up to the Cap (as defined in this Section)claims shall be actionable, and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said nine (9) month period and an action shall have been commenced by Buyer Purchaser against Seller within ten (10) 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 the Outside Claim Closing Date. Buyer agrees , to first seek recovery (without the requirement of filing any lawsuit) under any applicable insurance policies, service contracts and/or and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer Purchaser to the extent BuyerPurchaser’s claim is satisfied from such insurance policies, service contracts or the Leases; following the expiration of such three (3) month period, Purchaser shall be free to pursue Seller. As used herein, the term “Cap” shall mean the total aggregate amount equal of Three Million and No/100 Dollars ($3,000,000.00). In no event shall Seller’s aggregate liability to $2,000,000.00 Purchaser for breach of any representation or warranty of Seller in this Agreement or the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) certificate to be delivered by Seller depositing with Escrow Agent, at Closing pursuant to an escrow agreement substantially in Section 4.2(g) hereof exceed the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal the Cap; provided, however, the Cap shall not apply to the Cap, which shall secure Seller’s liability prorations under this Agreement as provided herein. Subject to the provisions of the Holdback Escrow Agreement, Seller shall be entitled to receive, and the Escrow Agent shall promptly pay to or 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, ’s broker indemnity obligations 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 BuyerSection 8.1.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, as updated as by the certificate of the Seller to be delivered to Purchaser at Closing in accordance with the terms of this Agreement Section 4.2(f) hereof, shall survive Closing for a period of six three hundred sixty-five (6365) months following days from and after the Closing Date as defined in Section 4.1 (the “Outside Claim Date”i.e., including any extension). 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 Buyer Purchaser 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 (b) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Seventy-Five Thousand and No/100 Dollars ($75,000.00) (the “Basket”), in which event the full amount of such valid claims, claims shall be actionable for the full amount of such claimsactionable, up to but not exceeding the amount of the Cap (as defined in this SectionSection 5.3 below), and (bc) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Date, expiration of said three hundred sixty-five (365) day period and an action shall have been commenced by Buyer Purchaser against Seller within three hundred sixty-five (3365) months after the Outside Claim Datedays of Closing. Buyer Purchaser agrees to first seek recovery under any applicable insurance policies, service contracts and/or and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to the extent BuyerPurchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount equal of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeview. In no event shall Seller’s aggregate liability to $2,000,000.00 Purchaser for breach of any representation or warranty of Seller in this Agreement or the aggregate. At the Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) certificate to be delivered by Seller depositing with Escrow Agent, at Closing pursuant to an escrow agreement substantially in Section 4.2(f) hereof exceed the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, which shall secure Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s liability obligations under this Agreement as provided herein. Subject to the provisions of the Holdback 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 BuyerSection 5.3.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, as updated as of the Closing in accordance with the terms of this Agreement shall Article 5 will survive Closing for a period of six three hundred sixty-five (6365) months following the Closing (the “Outside Claim Date”)days after Closing. No claim for a breach of any representation or warranty of Seller or under any such Seller Estoppel shall will be actionable or payable (i) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Buyer Purchaser or Blackbaud, Inc. 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 (ii) unless (a) the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($75,000.00) (the “Basket”)50,000.00, in which event the full amount of such valid claims, shall claims will be actionable for the full amount of such claimsactionable, up to but not exceeding the amount of the Liability Cap (as defined in this Sectionbelow), and (biii) unless written notice containing a description of the specific nature of such breach shall will have been given by Buyer Purchaser to Seller on or prior to the Outside Claim Dateexpiration of said three hundred sixty-five (365) day period and, and if not addressed to Purchaser’s satisfaction, an action shall will have been commenced by Buyer Purchaser against Seller within three five hundred forty (3540) months days after Closing. In no event will Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement exceed the Outside Claim Date. Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Buyer to amount of the extent Buyer’s claim is satisfied from such insurance policies, service contracts or LeasesLiability Cap. As used hereinin this Agreement, the term “Liability Cap” shall will mean the total aggregate amount equal of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to $2,000,000.00 claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in the aggregatewriting 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 and 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. At the Closing, Seller and Buyer shall create an escrow fund (the “Holdback Escrow Fund”) by Seller depositing with Escrow Agent, pursuant As to an escrow agreement substantially in the form of Exhibit Q (the “Holdback Escrow Agreement”), an amount of cash equal to the Cap, which shall secure Seller’s liability any litigation commenced under this Agreement as provided herein. Subject to section, the provisions of the Holdback Escrow Agreement, Seller prevailing party shall be entitled to receiverecover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and the Escrow Agent shall promptly pay to Sellercosts incurred, an amount equal to through all amounts remaining in the Holdback Escrow Fundappeals, together with interest earned thereonbankruptcy proceedings, (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 tribunals and the payment thereof to Buyercollection efforts.