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

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereof, shall survive Closing for a period of three hundred sixty-five (365) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension). No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five (365) days of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount 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 Purchaser for breach of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Section 5.1 5.1, Section 11.3 and Section 12.3, as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereofthe 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 three hundred sixty-five twelve (36512) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension)months. No claim for a breach of any representation or warranty of Seller Seller’s Representation shall be actionable or payable unless each of the following conditions is satisfied: (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches breaches, if any, collectively aggregate more than Seventy-Five Hundred Thousand and No/100 Dollars ($75,000.00500,000), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser Buyer to Seller prior to the expiration of said three hundred sixty-five twelve (36512) day month period and an action shall have been commenced by Purchaser Buyer against Seller within three hundred sixty-five sixty (36560) days after the termination of the survival period provided for above in this Section 5, and (c) the Closing has occurred and Buyer did not have knowledge that the applicable Seller’s Representation was incorrect prior to Closing. Purchaser Buyer agrees to first seek recovery under any insurance policies, service contracts the Title Policies and Leases other applicable agreements prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if PurchaserBuyer to the extent Buyer’s claim is actually satisfied from such insurance policies, service contracts Title Policies or Leasesother applicable agreements. As used hereinUpon delivery of the Tenant Estoppels or Lessor Estoppel, Seller shall be entirely released from any liability under Seller’s Representations concerning the information contained in such Tenant Estoppels or Lessor Estoppel, as applicable, to the extent the same is consistent with, or more favorable than, the term “Cap” shall mean information contained in Seller’s Representations. Notwithstanding any provision of this Agreement to the total aggregate amount of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeview. In contrary, in no event shall (i) Seller’s aggregate liability to Purchaser Buyer for breach of any representation or warranty of Seller in this Agreement or the certificate Seller’s Representations exceed an amount equal to be delivered by Seller at Closing pursuant to Section 4.2(fone percent (1%) hereof exceed the amount of the Cap. To the extent that Purchase Price, or (ii) Seller does not have sufficient assets be liable for any consequential damages of Buyer or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3punitive damages.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f4.2(g) hereof, shall survive Closing for a period of three hundred sixty-five twelve (36512) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension)months. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Fifty Thousand and No/100 Dollars ($75,000.0050,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five twelve (36512) day month period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five ten (36510) days after the termination of Closingthe survival period provided for above in this Section 5.3. So long as Purchaser’s remedies against Seller are not impaired thereby, Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or the Leases. As used herein, the term “Cap” shall mean the total aggregate amount 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 Purchaser for breach of any representation or warranty of Seller in this Agreement or 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(f4.2(g) hereof hereof, exceed the amount of the Cap. To Except as expressly provided in the extent that documents to be executed by Seller does not or Purchaser at Closing hereunder, neither Seller nor Purchaser shall have sufficient assets or liquidity to satisfy any such obligations liability under this Section 5.3Agreement or under any of the documents or instruments to be executed by Seller or Purchaser at Closing hereunder for any speculative, 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 obligations under this Section 5.3consequential or punitive damages.

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 by as of the certificate of Seller to be delivered to Purchaser at Closing Date in accordance with Section 4.2(f) hereofthe terms of this Agreement, shall survive Closing for a period of three one hundred sixty-five and eighty (365180) days from and after the Closing Date days, at which time they will be of no further force or effect except as defined hereinafter provided in this Section 4.1 (i.e., including any extension16(d). No claim Seller shall have liability to Purchaser for a breach of any representation or warranty of with respect to the Project owned by such Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (bi) unless the valid claims for all such breaches with respect that Project only collectively aggregate more than Seventy-Five Fifty Thousand and No/100 Dollars ($75,000.0050,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below16(d)), and (cii) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to such Seller prior to the expiration of said three the one hundred sixty-five and eighty (365180) day survival period and an action shall have been commenced by Purchaser against such Seller within three hundred sixty-five thirty (36530) days after delivery of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leasesnotice of the alleged breach. As used herein, the term “Cap” shall mean the total aggregate amount of One Million Five Hundred Thousand and No/100 U.S. Dollars ($1,500,000.00) per each of DT Center and Ridgeview). In no event whatsoever shall Seller’s aggregate Sellers have any liability to Purchaser in excess of the Cap for any claims asserted after Closing for a breach of any representation or warranty of Seller Sellers’ representations and warranties set forth in this Agreement or Agreement. At Closing, Sellers shall cause Inland Western Retail Real Estate Trust, Inc. (“Guarantor”) to execute and deliver to Purchaser a guaranty in the certificate form attached hereto as Exhibit Q, whereby Guarantor shall agree to be delivered by Seller at Closing guarantee the obligations of Sellers up to the Cap pursuant to this Section 4.2(f16(d) hereof exceed in the amount event of the Cap. To the extent that a claim by Purchaser of a breach by any Seller does not have sufficient assets or liquidity to satisfy any such obligations of its representations and warranties under this Section 5.3, 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 obligations under this Section 5.3Agreement.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f4.2(g) hereof, shall survive Closing for a period of three one hundred sixty-five eighty (365180) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension)days. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than SeventyOne Hundred Twenty-Five Thousand and No/100 Dollars ($75,000.00125,000), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five One Hundred Eighty (365180) day period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five Two Hundred Seventy (365270) days of Closing. Notwithstanding anything to the contrary contained herein, the liability of Seller for a breach of representations and warranties shall not exceed One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) in the aggregate. Covenants of Seller. Seller hereby covenants with Purchaser agrees 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 insurance policies, service contracts and Leases prior to seeking recovery from Sellerthe Property, and Seller shall not be liable otherwise use reasonable efforts to operate and maintain the Property in a manner generally consistent with the manner in which Seller has operated and maintained the Property prior to the date hereof. Seller shall use reasonable efforts (but without obligation to incur any cost or expense other than a de minimis amount) to obtain and deliver to Purchaser if Purchaser’s claim prior to Closing, a written estoppel certificate in the form of Exhibit D attached hereto and made a part hereof signed by each tenant occupying space in the Improvements. The signed certificates are referred to herein as the "Tenant Estoppels". Seller shall use reasonable efforts (but without obligation to incur any cost or expense other than a de minimis amount) to obtain and deliver to Purchaser prior to Closing, a written estoppel certificate containing the information required by the terms of the Mall Agreements signed by each owner of any anchor parcel with respect to the Mall Agreements applicable to such owner and to obtain and deliver to Purchaser prior to Closing a written estoppel certificate containing the information required by the terms of the X.X. Penney Lease signed by X.X. Xxxxxx. The signed certificates are referred to herein as the "Anchor Estoppels". A copy of any renewal, expansion, amendment or other modification of an existing Lease or Mall Agreement ("Amended Lease") or of any new Lease which Seller wishes to execute between the Effective Date and the date of Closing will be submitted to Purchaser prior to execution by Seller. Purchaser agrees to notify Seller in writing within five (5) business days after 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 satisfied from such insurance policies, service contracts expressly under no obligation to approve an Amended Lease or Leases. As used herein, the term “Cap” shall mean the total aggregate amount of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeviewnew Lease. In no 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 Seller’s aggregate liability be deemed the approval by Purchaser. At Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs or leasing commissions, incurred by Seller pursuant to an Amended Lease or a new Lease approved (or deemed approved) by Purchaser. Seller will notify Purchaser for breach of any representation of the following matters which occur from the Effective Date hereof until the Closing or warranty earlier termination of this Agreement; (i) written notices of default received or given by Seller in this with respect to any Lease, any Operating Agreement or the certificate to be delivered any Mall Agreement, (ii) material litigation commenced by Seller, or litigation of which Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount of the Cap. To the extent that Seller does not have sufficient assets has received written notice commenced or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P.threatened against Seller, with respect to DT Center onlythe Property (other than litigation covered by insurance as to which the insurer has been notified on a timely basis and has not disclaimed liability), (iii) written notices of condemnation proceedings commenced or threatened against all or any portion of the Property received by Seller, (iv) casualty losses to the Property, and Brookdale Investors Three(v) written notices received from any governmental or quasi-governmental authority that there are any violations of environmental statutes, L.P.ordinances or regulations affecting the Property. Seller shall terminate that certain management agreement dated February 14, with respect 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 Ridgeview onlyClosing by reason of any tenant's or any anchor parcel owner's default without the prior written consent of Purchaser, to satisfy Seller’s obligations under this Section 5.3which consent shall not be unreasonably withheld.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 as updated by the certificate of 7.1 hereof and in any Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(fEstoppel (defined below) hereof, shall survive Closing for a period of three hundred sixty-five nine (3659) days from and after months (the Closing Date as defined in Section 4.1 (i.e., including any extension“Claims Period”). No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which that was known to Purchaser prior to Closing, including any information disclosed by any Estoppel Certificate (bdefined below). Seller shall have no liability to Purchaser for a breach of any representation or warranty unless (a) unless the valid claims for all such breaches, together with any breaches by 777 Main Seller under the 777 Main Contract, collectively aggregate more than Seventy-Five Thousand and No/100 One Million Dollars ($75,000.001,000,000), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 belowSection), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period the Claims Period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five prior to thirty (36530) days following the expiration of Closingthe Claims Period. Purchaser agrees to use commercially reasonable efforts to first seek recovery under any insurance policies, service contracts Operating Contracts and Leases during the Claims Period prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts 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 of One Fifteen Million Five Hundred Thousand and No/100 Dollars ($1,500,000.0015,000,000) per each of DT Center and Ridgeviewshall include any claims Purchaser has against 777 Main Seller under the 000 Xxxx Xxxxxxxx. In no event This Section 7.3 shall Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3survive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 5.1, as updated by the certificate of Seller to be delivered to Purchaser at Seller’s Closing in accordance with Section 4.2(f) hereofCertificate, shall survive the Closing for a period of three until the date that is one hundred sixty-five fifty (365150) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extensionthe “Expiration Date”). No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Two Hundred Fifty Thousand and No/100 Dollars ($75,000.00)250,000.00) or more, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (cb) unless written notice containing a reasonable description of the specific nature of such breach known to Purchaser shall have been given by Purchaser to Seller prior to the expiration Expiration Date. Seller shall be released from liability to Purchaser for any such claim to the extent Purchaser receives proceeds of said three hundred sixty-five (365) day period and or payment under an action shall have been commenced by Purchaser against Seller within three hundred sixty-five (365) days of Closing. Purchaser agrees to first seek recovery under any insurance policiespolicy, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from contract or Lease for such insurance policies, service contracts or Leasesclaim. As used herein, the term “Cap” shall mean the total aggregate amount 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 Purchaser for breach any and all breaches of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Seller’s Closing pursuant to Section 4.2(f) hereof Certificate exceed the amount of the Cap, and Purchaser hereby waives and disclaims any right to damages or compensation for any and all such breaches in excess of the Cap. To Any liability of Seller pursuant to this Section 5.3 shall be set off against the extent that Seller does not have sufficient assets or liquidity Purchase Price; provided, however, that, subject to satisfy any such obligations under the provisions of this Section 5.3, Purchaser may look shall have the right to Brookdale Investors Two, L.P., proceed against the proceeds of this transaction up to the Cap in order to provide Purchaser protection with respect to DT Center only, the availability of funds to provide for any claims for breach of representations and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy warranties of Seller. At Seller’s obligations under request, Purchaser shall reimburse Seller for one-half (1/2) of the amount of any refund of transfer taxes actually received by Purchaser in connection with a claim made by Purchaser pursuant to this Section 5.35.3 after the deduction therefrom of (i) the amount of such claim for which Purchaser has not received payment from Seller (whether or not such amount is in excess of the Cap) and (ii) all of the costs and expenses actually incurred by Purchaser in connection with such refund of transfer taxes.

Survival of Seller’s Representations and Warranties. The Except as otherwise set forth in Section 9, the representations and warranties of Seller set forth in Section 5.1 9 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereofthe terms of this Agreement, shall survive Closing for a period until the earlier to occur of three hundred sixty-five (365i) days from and December 31, 2006 or (ii) the date which is one (1) year after the Closing Date as defined in Section 4.1 (i.e., including any extension)Closing. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser Buyer prior to or at Closing. In the event Buyer obtains knowledge prior to Closing which renders any of the representations and warranties made by Seller inaccurate in any material respect and Buyer nevertheless proceeds to Closing, Buyer shall be deemed to have waived its right to rely upon the applicable representation and warranty with respect to which Buyer had knowledge of inaccuracies prior to or at the Closing. Seller shall have no liability to Buyer for a breach of any representation or warranty (ba) unless the valid claims for all such breaches collectively aggregate more than SeventyTwenty-Five Thousand and No/100 Dollars ($75,000.0025,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 belowSection), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser Buyer to Seller prior to the expiration of said three hundred sixty-five one (3651) day period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five (365) days of Closingyear period. Purchaser Buyer agrees to first seek recovery under any insurance policies, service contracts and Leases policies prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser Buyer if Purchaser’s 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 which may be awarded to or collected by Buyer under this Agreement (including, without limitation, for any breach of One Million 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 and No/100 ($500,000.00) (the "Cap"). At Closing, Seller shall place Two-Hundred Fifty Thousand Dollars ($1,500,000.00250,000) per each of DT Center and Ridgeview. In no event shall Seller’s aggregate liability into escrow with Commercial Title Group, Inc. to Purchaser be held as security for any claims brought by Buyer after Closing relating to a breach of any a representation or warranty of Seller as contemplated in this Agreement Section 9(b) until the earlier to occur of (i) December 31, 2006 or (ii) the certificate date which is one (1) year after Closing. In the event written notice of such breach has not been given by Buyer to Seller prior to the expiration of said aforementioned time period, the funds shall automatically be delivered released by Seller at Closing pursuant Commercial Title Group, Inc. and forwarded to Section 4.2(f) hereof exceed the amount of the CapSeller. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3This 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 4.01 above, as updated modified by the certificate of delivered from Seller to be delivered to Purchaser Buyer at Closing as described in accordance with Section 4.2(f) hereof7.03, shall be deemed remade as of the Closing Date and shall survive the Closing for a period of three hundred sixty-five one (3651) days from and after year. However, notwithstanding anything to the Closing Date as defined contrary herein, to the extent that any documents or information regarding Seller or the Property is disclosed to Buyer in Section 4.1 (i.e., including any extension). No claim for a breach of any representation writing or warranty of Seller shall be actionable or payable (a) if the breach brought to Buyer's attention in question results from or is based on a condition, state of facts or other matter which was known to Purchaser writing prior to Closing, (b) unless and Buyer nevertheless closes the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00)purchase of the Property, in which event the full amount of such valid claims Buyer shall be actionabledeemed to have accepted and to have waived any objection to or claim based on such documents or information. If Seller defaults in any obligation, up representation or warranty that expressly survives Closing and that Buyer has not been deemed to but not exceeding have accepted or to have waived pursuant to the amount of immediately preceding sentence, then subject to the Cap (as defined limitation on survival set forth in this Section 5.3 below)Buyer may seek damages against Seller for such default as well as such other relief as may be available at law or equity, and (cBuyer 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) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior below. Notwithstanding anything in this Section 4.02 to the expiration of said three hundred sixty-five (365) day period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five (365) days of Closing. Purchaser agrees to first seek recovery under any insurance policiescontrary, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable obligated to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts pay any damages or Leases. As used herein, other amounts pursuant to this Section 4.02 until the term “Cap” shall mean the total aggregate amount of One Million sought by Buyer hereunder exceeds Twenty-Five Hundred Thousand and No/100 Dollars ($1,500,000.0025,000.00) per each of DT Center and Ridgeview. In no event (the "SELLER THRESHOLD AMOUNT"), whereupon Seller shall Seller’s aggregate liability to Purchaser be liable for breach of any representation or warranty of all amounts (including the Seller in this Agreement or the certificate to Threshold Amount) for which relief and/or a remedy may be delivered sought by Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations Buyer under this Section 5.3, 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 obligations under this Section 5.34.02. The immediately preceding sentence shall survive the Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 5.1, as updated by the certificate of Seller to be delivered to Purchaser at Seller's Closing in accordance with Section 4.2(f) hereofCertificate, shall survive Closing for a period of three hundred sixty-five nine (3659) days from and months after Closing. Except with respect to fraudulent misrepresentation for which the Closing Date as defined Agreement is terminated under Section 6.2, in which event Section 4.1 (i.e.6.2 shall apply, including any extension). No no claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Ten Thousand and No/100 Dollars ($75,000.00)10,000.00) or more, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five nine (3659) day month period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five eleven (36511) days of months after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser agrees 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 first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and but not exceeding the Cap. Seller shall not be liable to Purchaser if to the extent Purchaser’s '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 of One Million Five equal to Three Hundred Fifty Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeview350,000.000). In no event shall Seller’s 's aggregate liability to Purchaser for breach any and all breaches of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Seller's Closing pursuant to Section 4.2(f) hereof Certificate exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect Purchaser hereby waives and disclaims any right to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3damages or compensation for any and all such breaches in excess of the Cap.

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 6.1, as they may be updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(fClosing, (i) hereof, shall survive Closing for a period of three and expire two hundred sixty-five seventy (365270) days from and after the Closing Date as defined (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 Section 4.1 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 time, not less than thirty (i.e.30) days, including 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 extension)matters timely disclosed in a written notice delivered by Purchaser to Seller under subsection (i) hereof. No claim Seller shall have no liability to Purchaser for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and an action the Survival Period. Furthermore, notwithstanding anything to the contrary contained in this Contract, if the Closing shall have been commenced by Purchaser against Seller within three hundred sixty-five occurred: (365a) days of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable 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 Seller in connection with this Contract, unless the valid claims for actual damages incurred due to Purchaser if Purchaser’s claim is satisfied from such insurance policiesbreaches collectively exceed $25,000.00; (b) 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, service contracts or Leases. As used hereinin the aggregate, the term “Cap” shall mean the total aggregate amount of One Million Five Seven Hundred Fifty Thousand and No/100 Dollars ($1,500,000.00750,000.00); and (c) per each of DT Center and Ridgeview. In in no event shall Seller’s aggregate liability to Purchaser Seller be liable for breach any consequential or punitive damages, except in the case of any representation or warranty of fraud. Seller in this Agreement or covenants and agrees that from and after the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof exceed until the amount last day of the Cap. To 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 Seller prior to the last day of the Survival Period, Seller shall continue to maintain, until such claim has been finally adjudicated or settled and paid to the extent that Seller does required by such judgment or settlement, a net worth of not have sufficient assets less than the lesser of (i) $750,000 or liquidity (ii) 125% of the reasonable amount required to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy claim. Seller’s obligations under this Section 5.36.2 shall survive the Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereof, hereof shall survive Closing for a period of three hundred sixty-five one (3651) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension)year. No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, . Seller shall have no liability to Purchaser for a breach of any representation or warranty (ba) unless the valid claims for all such breaches with respect to this Property and the Columbia Falls (MT), Kalispell (MT), Fourth Plain (WA), Tacoma Lakewood (WA), Xxxxxxxx (XX) xxx Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx (XX) properties which are to be conveyed from Seller to Purchaser contemporaneously with the Property pursuant to purchase and sale agreements of even date, collectively aggregate more than Seventy-Five Hundred Thousand and No/100 Dollars ($75,000.00500,000), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 belowSection), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five one (3651) day year period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five one (3651) year and ninety (90) days of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s 's claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “"Cap” " shall mean the total aggregate amount of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.001,000,000) per each of DT Center and Ridgeview. In no event shall Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center onlyany and all claims relating to this Property and to the Columbia Falls (MT), Kalispell (MT), Fourth Plain (WA), Tacoma Lakewood (WA), Xxxxxxxx (XX) xxx Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx (XX) properties which are to be conveyed from Seller to Purchaser contemporaneously with the Property pursuant to purchase and Brookdale Investors Three, L.P., sale agreements of even date. This Section 5.3 shall have no application to any claims of Purchaser with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3warranties of title conveyed by the Deed.

Survival of Seller’s Representations and Warranties. The representations and warranties of each Seller set forth in Section 5.1 hereof, as updated by the certificate of such Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereof, shall survive Closing for a period of three hundred sixty-five seven (3657) days from and after months (such period being the Closing Date as defined in Section 4.1 (i.e.“Survival Period”). No Seller shall have any liability hereunder relating to a breach of a representation or warranty by any other Seller, including it being agreed by Purchaser that any extension)liabilities relating to a breach of a representation or warranty shall be several. No claim for a breach of any representation or warranty of any Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state one of facts or other matter which was known to Purchaser has knowledge prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate against any one or more than Seventy-Five of such Sellers (including, without limitation, all attorneys’ fees and court costs) exceed the lesser of Fifty Thousand and No/100 Dollars ($75,000.00)50,000.00) for any single Seller or Property or collectively aggregate to more than One Hundred Thousand and No/100 Dollars ($100,000.00) with respect to all Sellers and all Properties, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless Purchaser has provided written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller Sellers prior to the expiration of said three hundred sixty-five (365) day period the Survival Period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five the applicable Seller, if at all, prior to thirty (36530) days after the expiration of Closingthe Survival Period. For purposes of the foregoing sentence, Purchaser agrees shall be deemed to first seek recovery under have “knowledge” of any insurance policiessuch breach if (i) Purchaser has actual knowledge of such breach (including by Seller notification pursuant to Section 5.4(g)(iii)), service contracts and Leases prior (ii) such breach is disclosed in materials included in the Datasite as of 4 p.m. (Central Time) on December 18, 2014, (iii) such breach is disclosed in any exhibits or schedules to seeking recovery from Sellerthis Agreement, and Seller shall not be liable to Purchaser if Purchaser’s claim or (iv) such breach is satisfied from such insurance policies, service contracts disclosed by the Title Commitments or Leases. As used herein, Surveys (as the term “Cap” shall mean the total aggregate amount of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeviewsame may have been updated). In no event shall Seller’s the total amount of all Sellers’ aggregate liability to Purchaser under this Agreement, including, without limitation, liability for breach of any representation or warranty of any Seller in this Agreement or and/or the certificate to be delivered by such Seller at Closing pursuant to Section 4.2(f) hereof hereof, exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P.One Million Eight Hundred Forty-Six Thousand Five Hundred and No/100 Dollars ($1,846,500.00) (in total, with respect to DT Center onlyall Sellers and all Properties) (the “Cap”). Sellers shall deposit with the Title Company at Closing the full amount of the Cap, and Brookdale Investors Threewhich amount shall be held in escrow during the Survival Period pursuant to the terms of an Escrow Agreement in the form of Exhibit J attached hereto (the “Holdback Escrow Agreement”); provided, L.P.however, that the Cap shall not apply to any Seller’s liability with respect to Ridgeview onlyprorations contained in Section 4.4, to satisfy any Seller’s obligations actual fraud, or Sellers’ liabilities under Section 8.1. Upon the expiration of the Survival Period, if Purchaser shall not have filed any claim with respect to the provisions of this Section 5.35.3 in accordance with the terms and provisions of the Holdback Escrow Agreement, the Title Company shall, upon written request from Sellers, promptly disburse the Cap amount to Sellers pursuant to directions provided by Sellers despite any objection by Purchaser.

Survival of Seller’s Representations and Warranties. 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 Section 5.1 as updated by the certificate of Seller to be delivered Due Diligence Items or any other matters or information disclosed in writing to Purchaser at Closing or its agents, attorneys or representatives (including in accordance with Section 4.2(fany third party reports obtained by such persons) hereof, shall survive Closing for a period of three hundred sixty-five (365) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension). No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five (365) days of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount 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 Purchaser for breach of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof, as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereof, the terms of this Agreement shall survive Closing for a period of three hundred sixty-five six (3656) days from and after months following the Closing Date as defined in Section 4.1 (i.e., including any extensionthe “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 (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser Buyer prior to Closing, if Buyer elects to consummate the transactions described herein with such actual knowledge. Seller shall have no liability to Buyer for a breach of any representation or warranty unless (ba) unless the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy-Seventy Five Thousand and No/100 Dollars ($75,000.00) (the “Basket”), in which event the amount of such valid claims, shall be actionable for the full amount of such valid claims shall be actionableclaims, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 belowSection), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser Buyer to Seller on or prior to the expiration of said three hundred sixty-five (365) day period Outside Claim Date, and an action shall have been commenced by Purchaser Buyer against Seller within three hundred sixty-five (3653) days of Closingmonths after the Outside Claim Date. Purchaser Buyer agrees to first seek recovery under any applicable insurance policies, service contracts and and/or Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if PurchaserBuyer 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 One Million Five Hundred Thousand and No/100 Dollars Exhibit Q ($1,500,000.00) per each the “Holdback Escrow Agreement”), an amount of DT Center and Ridgeview. In no event cash equal to the Cap, which shall secure Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in under this Agreement or as provided herein. Subject to the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount provisions of the Cap. To Holdback Escrow Agreement, Seller shall be entitled to receive, and the extent that 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 does or if there are no outstanding claims for which payment has not have sufficient assets been made or liquidity to satisfy any such obligations are in dispute, under this Section 5.3Agreement, Purchaser may look 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 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 obligations Buyer under this Section 5.3Agreement and the payment thereof to Buyer.

Survival of Seller’s Representations and Warranties. Subject to the “Cap” (as defined below), Seller hereby agrees to indemnify and hold Purchaser harmless from and against all claims, demands, liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees and disbursements, (i) that may be suffered or incurred by Purchaser if any representation or warranty made by Seller in this Article V was untrue or incorrect in any material respect when made (including the representations and warranties which are remade pursuant to Section 5.16 hereof) or that may be caused by any breach by Seller of this Agreement, or (ii) arising from or based on any failure by Seller to perform all obligations of Seller in accordance with the Leases, Contracts, Approvals, Permitted Exceptions or applicable laws before the Closing Date, or any third party property damage or personal injury occurring in, on or about the Property before the Closing Date. The representations and warranties of Seller set forth in Section 5.1 as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereof, this Article V shall survive Closing for a period of three hundred sixty-five nine (3659) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension)months only. No claim for a breach of any representation or warranty of Seller indemnity under this Section 5.17 shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Purchaser prior to ClosingClosing (it being understood and agreed that Purchaser’s remedies with respect to any such breach actually discovered by Purchaser prior to Closing shall be as set forth in Section 11.1 below), (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00)15,000, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five the nine (3659) day month period set forth above and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five (365) days a reasonable period of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leasestime after the termination of the survival 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 of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeview949,500. In no event shall Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof Article V exceed the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 5.1, as updated by the certificate of Seller to be delivered to Purchaser at Seller’s Closing in accordance with Section 4.2(f) hereofCertificate, shall survive Closing for a period of three one hundred sixty-five eighty (365180) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension)Closing. No claim for a breach of any representation or warranty of Seller, nor any liability under a Seller Lease Estoppel Certificate, shall be actionable or payable (a) if the breach in question question, or condition addressed in the Seller Lease Estoppel Certificate, results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches and liability collectively aggregate more than SeventyTwenty-Five Thousand and No/100 Dollars ($75,000.00)25,000.00) or more, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three one hundred sixty-five eighty (365180) day period (or such shorter period as set forth in a Seller Lease Estoppel Certificate with respect thereto) and an action shall have been commenced by Purchaser against Seller within three two hundred sixty-five seventy (365270) days of after Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such any insurance policiespolicy, service contracts contract or LeasesLease. As used herein, the term “Cap” shall mean the total aggregate amount of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeview1,000,000.00). In no event shall Seller’s aggregate liability to Purchaser (i) for breach any and all breaches of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Seller’s Closing Certificate and (ii) pursuant to Section 4.2(f) hereof exceed Seller Lease Estoppel Certificates, exceed, in the aggregate, the amount of the Cap. To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect Purchaser hereby waives and disclaims any right to Ridgeview only, damages or compensation for any and all such breaches in excess of the Cap unless Seller shall have committed fraud in which event the Cap shall not be applicable to satisfy Seller’s obligations under this Section 5.3such claims of fraud.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f4.2(g) hereof, shall survive Closing for a period of three hundred sixty-five nine (3659) days from and after the Closing Date as defined in Section 4.1 (i.e.months. After Closing, including any extension). No no claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to ClosingClosing (it being agreed that information that is set forth in due diligence materials physically provided to Purchaser and/or all items made available in the electronic war room or in any Approved Estoppel received by Purchaser shall be deemed “known” to Purchaser), (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five One Hundred Thousand and No/100 Dollars ($75,000.00100,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five nine (3659) day month period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five ten (36510) days after the termination of Closingthe survival period provided for above in this Section 5.3. Purchaser agrees agrees, at de minimis cost, expense, liability or potential liability to Purchaser, and for a period of three (3) months after the Closing Date, to first seek recovery (without the requirement of filing any lawsuit) under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if to the extent Purchaser’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 of One Three Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) per each of DT Center and Ridgeview3,000,000.00). In no event shall Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f4.2(g) hereof exceed the amount of the Cap. To ; provided, however, the extent that Seller does Cap shall not have sufficient assets apply to the prorations under this Agreement or liquidity to satisfy any such Seller’s broker indemnity obligations under this Section 5.3, 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 obligations under this Section 5.38.1.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 9 hereof as updated by as of the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereofthe terms of this Agreement, shall survive Closing for a period of three one hundred sixty-five eighty (365180) days from and after except for the Closing Date as defined representation set forth in Section 4.1 9(a)(ix)(7) which shall survive Closing for a period of one (i.e., including any extension)1) calendar year. No claim for a breach of any representation or warranty of Seller or either of the Partners shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser Buyer prior to or at Closing. In the event Buyer obtains knowledge prior to Closing which renders any of the representations and warranties made by Seller or the Partners inaccurate in any material respect and Buyer nevertheless proceeds to Closing, Buyer shall be deemed to have waived its right to rely upon the applicable representation and warranty with respect to which Buyer had knowledge of inaccuracies prior to or at the Closing. Neither Seller nor the Partners shall have any liability to Buyer for a breach of any representation or warranty (ba) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00).0.05% of the Purchase Price, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 belowSection), and (cb) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser Buyer to Seller the Partners prior to the expiration of said three one hundred sixty-five eighty (365180) day period and an action shall have been commenced by Purchaser Buyer against Seller the Partners within three two hundred sixty-five forty (365240) days of ClosingClosing which period shall be tolled for a period not to exceed an additional ninety (90) days if Buyer is seeking recovery from any insurer as required in the following sentence. Purchaser Buyer agrees to first seek recovery under any insurance policies, service contracts and Leases policies prior to seeking recovery from Sellerthe Partners, and Seller the Partners shall not be liable to Purchaser Buyer if PurchaserBuyer’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 of One Million Five Hundred Thousand and No/100 Dollars which may be awarded to or collected by Buyer under this Agreement ($1,500,000.00) per each of DT Center and Ridgeview. In no event shall Seller’s aggregate liability to Purchaser including, without limitation, for any breach of representations and warranties contained herein), and any representation and all documents executed pursuant hereto or warranty in connection herewith, including, without limitation, the Deed, Xxxx of Seller in this Sale and Assignment and Assumption Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(fAssignment of Partnership Interests, or for any reason whatsoever, shall under no circumstances whatsoever exceed five percent (5%) hereof exceed the amount of the Purchase Price (the “Cap”). To the extent that Seller does not have sufficient assets or liquidity to satisfy any such obligations under this Section 5.3, Purchaser may look to Brookdale Investors Two, L.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s obligations under this Section 5.3This provision shall survive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereof, shall this Article 5 will survive Closing for a period of three hundred sixty-five (365) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension)Closing. No claim for a breach of any representation or warranty of Seller shall will be actionable or payable (ai) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser or Blackbaud, Inc. prior to Closing, (bii) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00)50,000.00, in which event the full amount of such valid claims shall will be actionable, up to but not exceeding the amount of the Liability Cap (as defined in this Section 5.3 below), and (ciii) unless written notice containing a description of the specific nature of such breach shall will have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and and, if not addressed to Purchaser’s satisfaction, an action shall will have been commenced by Purchaser against Seller within three five hundred sixty-five forty (365540) days of after Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount 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 will Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement or the certificate to be delivered by Seller at Closing pursuant to Section 4.2(f) hereof exceed the amount of the Liability Cap. To As used in this Agreement, the extent that term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller does in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser and Seller, as to which an action has not have sufficient assets or liquidity been commenced by Purchaser against Seller within five hundred forty (540) days after Closing shall be automatically waived and released by Purchaser. As to satisfy any such obligations litigation commenced under this Section 5.3section, Purchaser may look the prevailing party shall be entitled to Brookdale Investors Tworecover from the non-prevailing party, L.P.the prevailing party’s attorneys' fees, with respect to DT Center onlyparalegal fees, investigative fees and Brookdale Investors Threecosts incurred, L.P.through all appeals, with respect to Ridgeview onlybankruptcy proceedings, to satisfy Seller’s obligations under this Section 5.3tribunals and collection efforts.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 5.1 as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(f) hereof, shall survive Closing for a period of three hundred sixty-five (365) days from and after the Closing Date as defined in Section 4.1 (i.e., including any extension). No claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($75,000.00), in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined in this Section 5.3 below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and an action shall have been commenced by Purchaser against Seller within three hundred sixty-five (365) days of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leases. As used herein, the term “Cap” shall mean the total aggregate amount 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 Purchaser for breach of any representation or warranty of Seller in this Agreement or and the certificate documents to be delivered by Seller at the Closing pursuant shall survive the Closing for a period of twelve (12) months and no action or claim based on a breach of any of such representations and warranties shall be commenced after the expiration of such period. Further, to Section 4.2(f) hereof exceed the amount 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 CapClosing 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. To In addition, during the extent 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 fact that Seller does 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 have sufficient assets or liquidity disclosed in writing to satisfy any such obligations under this Section 5.3Purchaser prior to the Closing and was otherwise unknown to Purchaser as of the Closing Date; 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 Seller’s representations and warranties if the 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 look make a claim for the entire amount of its actual, out-of-pocket damages, up to Brookdale Investors Twoa maximum of $250,000.00). Notwithstanding anything to the contrary contained herein, L.P., with respect the foregoing limitations shall not apply to DT Center onlythe fraud or intentional misrepresentation of Seller, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy nothing in this Section 5.3 shall limit Seller’s obligations and liabilities as tenant under this Section 5.3the Lease.