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 this Article 5 will survive Closing for a period of three hundred sixty-five (365) days after Closing. No claim for a breach of any representation or warranty of Seller 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 known to Purchaser or Blackbaud, Inc. prior to Closing, (ii) unless the valid claims for all such breaches collectively aggregate more than $50,000.00, in which event the full amount of such valid claims will be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iii) unless written notice containing a description of the specific nature of such breach will have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and, if not addressed to Purchaser’s satisfaction, an action will have been commenced by Purchaser against Seller within five hundred forty (540) 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 amount of the Liability Cap. As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection efforts.

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 this Article 5 will survive Closing for a period of three hundred sixty-five (365) days after Closing. No claim for a breach of the Due Diligence Items or any representation other matters or warranty of Seller will be actionable or payable (i) if the breach information disclosed in question results from or is based on a condition, state of facts or other matter which was known writing to Purchaser or Blackbaudits agents, Inc. prior to Closing, attorneys or representatives (iiincluding in any third party reports obtained by such persons) unless the valid claims for all such breaches collectively aggregate more than $50,000.00, in which event the full amount of such valid claims will be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iii) unless written notice containing a description of the specific nature of such breach will have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and, if not addressed to Purchaser’s satisfaction, an action will have been commenced by Purchaser against Seller within five hundred forty (540) 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 amount of the Liability Cap. As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection efforts.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1, Section 11.3 and Section 12.3, as updated in accordance with the terms of this Agreement, and/or set forth in any estoppel certificate or other document or agreement delivered by Seller pursuant to this Agreement or in connection with the consummation of the transactions contemplated hereby (all such representations and warranties of Seller, collectively, the “Seller’s Representations”), shall survive Closing for a period of three hundred sixty-five twelve (36512) days after Closingmonths. No claim for a breach of any representation or warranty of Seller will Seller’s Representation shall be actionable or payable unless each of the following conditions is satisfied: (ia) 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, (ii) unless the valid claims for all such breaches breaches, if any, collectively aggregate more than Five Hundred Thousand Dollars ($50,000.00, in which event the full amount of such valid claims will be actionable, up to but not exceeding the amount of the Liability Cap (as defined below500,000), and (iiib) unless written notice containing a description of the specific nature of such breach will 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, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser Buyer against Seller within five hundred forty sixty (54060) days after the termination of the survival period provided for above in this Section 5, and (c) the Closing has occurred and Buyer did not have knowledge that the applicable Seller’s Representation was incorrect prior to Closing. In Buyer agrees to first seek recovery under any insurance policies, the 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, Title Policies or other applicable agreements. Upon 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 information contained in Seller’s Representations. Notwithstanding any provision of this Agreement to the contrary, in no event will shall (i) Seller’s aggregate liability to Purchaser Buyer for breach of any representation or warranty of Seller in this Agreement Seller’s Representations exceed the an amount equal to one percent (1%) of the Liability Cap. As used in this AgreementPurchase Price, the term “Liability Cap” will mean the total aggregate amount or (ii) Seller be liable for any consequential damages of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and Buyer or 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. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortspunitive damages.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in Section 9 hereof as updated as of the Closing in accordance with the terms of this Article 5 will Agreement, shall survive Closing for a period of three one hundred sixty-five eighty (365180) days after Closingexcept for the representation set forth in Section 9(a)(ix)(7) which shall survive Closing for a period of one (1) calendar year. No claim for a breach of any representation or warranty of Seller will or either of the Partners shall 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 known to Purchaser Buyer prior to or Blackbaud, Inc. 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 (iia) unless the valid claims for all such breaches collectively aggregate more than $50,000.00.0.05% of the Purchase Price, in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined belowin this Section), and (iiib) unless written notice containing a description of the specific nature of such breach will 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, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser Buyer against Seller the Partners within five two hundred forty (540240) days after Closingof Closing which period shall be tolled for a period not to exceed an additional ninety (90) days if Buyer is seeking recovery from any insurer as required in the following sentence. In no event will SellerBuyer agrees to first seek recovery under any insurance policies prior to seeking recovery from the Partners, and the Partners shall not be liable to Buyer if Buyer’s claim is satisfied from such insurance policies. Notwithstanding anything to the contrary herein, the maximum aggregate liability amount which may be awarded to Purchaser or collected by Buyer under this Agreement (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 Assignment of Partnership Interests, or for any reason whatsoever, shall under no circumstances whatsoever exceed the amount five percent (5%) of the Liability Purchase Price (the “Cap”). As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap This provision shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortssurvive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Agreement and the documents to be delivered by Seller at the Closing shall survive the Closing for a period of three hundred sixty-five twelve (36512) days months and no action or claim based on a breach of any of such representations and warranties shall be commenced after the expiration of such period. Further, to the extent any such breach was either disclosed to Purchaser in writing prior to the Closing or was otherwise known by Purchaser to have existed as of the Closing Date and Purchaser nevertheless decides to proceed with the Closing, then such breach shall be deemed to have been waived, it being agreed that Purchaser shall not be entitled to accept the Deed at Closing and maintain an action thereafter for a breach of a representation or warranty of Seller which was known by Purchaser at the time of Closing. No 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 fact that a breach of any of Seller’s representations or warranties provided in Section 5.1 existed as of the Closing and such breach was not disclosed in writing to Purchaser prior to the Closing and was otherwise unknown to Purchaser as of the Closing Date; provided, however, that Seller’s liability for 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 will be actionable or payable (i) Seller’s representations and warranties if the breach in question results from or is based on a conditionalleged actual, state of facts or other matter which was known to Purchaser or Blackbaud, Inc. prior to Closing, (ii) unless the valid claims for all such breaches collectively aggregate more out-of-pocket damages are less than $50,000.0025,000.00 (but if the alleged damages are greater than $25,000.00, in which event Purchaser may make a claim for the full entire amount of such valid claims will be actionableits actual, out-of-pocket damages, up to but not exceeding the amount a maximum of the Liability Cap (as defined below$250,000.00), and (iii) unless written notice containing a description of the specific nature of such breach will have been given by Purchaser to Seller prior . Notwithstanding anything to the expiration of said three hundred sixty-five (365) day period and, if not addressed to Purchaser’s satisfaction, an action will have been commenced by Purchaser against Seller within five hundred forty (540) 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 amount of the Liability Cap. As used in this Agreementcontrary contained herein, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap foregoing limitations shall not apply to claims resulting solely from the fraud consisting or intentional misrepresentation of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser and Seller, and nothing in this Section 5.3 shall limit Seller’s obligations and liabilities as to which an action has not been commenced by Purchaser against Seller within five hundred forty (540) days after Closing shall be automatically waived and released by Purchaser. As to any litigation commenced tenant under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsLease.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1 as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of three one hundred sixty-five eighty (365180) days after Closingdays. No claim for a breach of any representation or warranty of Seller will shall be actionable or payable (ia) 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, (iib) unless the valid claims for all such breaches collectively aggregate more than One Hundred Twenty-Five Thousand Dollars ($50,000.00125,000), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiic) unless written notice containing a description of the specific nature of such breach will 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, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser against Seller within five hundred forty Two Hundred Seventy (540270) days after of Closing. In no event will Seller’s aggregate Notwithstanding anything to the contrary contained herein, the liability to Purchaser of Seller for a breach of any representation representations and warranties shall not exceed One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) in the aggregate. Covenants of Seller. Seller hereby covenants with Purchaser as follows: From the Effective Date hereof until the Closing or warranty earlier termination of Seller in this Agreement exceed the amount of the Liability Cap. As used in this Agreement, Seller shall maintain its existing insurance coverage with respect to the term “Liability Cap” Property, and Seller shall otherwise use reasonable efforts to operate and maintain the Property in a manner generally consistent with the manner in which Seller has operated and maintained the Property prior to the date hereof. Seller shall use reasonable efforts (but without obligation to incur any cost or expense other than a de minimis amount) to obtain and deliver to Purchaser prior to Closing, a written estoppel certificate in the form of Exhibit D attached hereto and made a part hereof signed by each tenant occupying space in the Improvements. The signed certificates are referred to herein as the "Tenant Estoppels". Seller shall use reasonable efforts (but without obligation to incur any cost or expense other than a de minimis amount) to obtain and deliver to Purchaser prior to Closing, a written estoppel certificate containing the information required by the terms of the Mall Agreements signed by each owner of any anchor parcel with respect to the Mall Agreements applicable to such owner and to obtain and deliver to Purchaser prior to Closing a written estoppel certificate containing the information required by the terms of the X.X. Penney Lease signed by X.X. Xxxxxx. The signed certificates are referred to herein as the "Anchor Estoppels". A copy of any renewal, expansion, amendment or other modification of an existing Lease or Mall Agreement ("Amended Lease") or of any new Lease which Seller wishes to execute between the Effective Date and the date of Closing will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply be submitted to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent Purchaser prior to deceiveexecution by Seller. Any claim for fraud not asserted against Purchaser agrees to notify Seller in writing within three hundred sixty-five (3655) business days after Closing its receipt thereof of either its approval or disapproval, including all Tenant Inducement Costs and any claim of fraud asserted against 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 three hundred sixty-the five (3655) days after day time period for such purpose set forth above, such failure shall be deemed the approval by Purchaser. At Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs or leasing commissions, incurred by Seller pursuant to an Amended Lease or a new Lease approved (or deemed approved) by Purchaser. Seller will notify Purchaser of any of the following matters which occur from the Effective Date hereof until the Closing butor earlier termination of this Agreement; (i) written notices of default received or given by Seller with respect to any Lease, absent an agreement between Purchaser and any Operating Agreement or any Mall Agreement, (ii) material litigation commenced by Seller, or litigation of which Seller has received written notice commenced or threatened against Seller, with respect to the Property (other than litigation covered by insurance as to which an action the insurer has been notified on a timely basis and has not been disclaimed liability), (iii) written notices of condemnation proceedings commenced or threatened against all or any portion of the Property received by Purchaser against 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 environmental statutes, ordinances or regulations affecting the Property. Seller within five hundred forty shall terminate that certain management agreement dated February 14, 1997, by and between Seller and Xxxxx Lang LaSalle Americas, Inc., effective as of Closing (540) days after the "Existing Agreement"). Seller shall not terminate any Lease or Mall Agreement prior to Closing by reason of any tenant's or any anchor parcel owner's default without the prior written consent of Purchaser, which consent shall not be automatically waived and released by Purchaser. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsunreasonably withheld.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 7.1 hereof and in any Seller Estoppel (defined below) shall survive Closing for a period of three hundred sixty-five nine (3659) days after Closingmonths (the “Claims Period”). No claim for a breach of any representation or warranty of Seller will shall 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 that was known to Purchaser or Blackbaud, Inc. prior to Closing, including any information disclosed by any Estoppel Certificate (iidefined 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 One Million Dollars ($50,000.001,000,000), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined belowin this Section), and (iiib) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and, if not addressed to Purchaser’s satisfaction, the Claims Period and an action will shall have been commenced by Purchaser against Seller within five hundred forty prior to thirty (54030) days after Closingfollowing the expiration of the Claims Period. In no event will Purchaser agrees to use commercially reasonable efforts to first seek recovery under any insurance policies, Operating Contracts and Leases during the Claims Period prior to seeking recovery from Seller’s aggregate liability , and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, Operating Contracts or Leases; provided, for breach avoidance of any representation or warranty 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 this Agreement exceed accordance with the amount of the Liability Cappreceding sentence. As used in this Agreementherein, the term “Liability Cap” will shall mean the total aggregate amount of Fifteen Million Dollars ($1,500,000; provided, however, this $1,500,000 Liability Cap 15,000,000) and shall not apply to include any claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceivePurchaser has against 777 Main Seller under the 000 Xxxx Xxxxxxxx. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser and Seller, as to which an action has not been commenced by Purchaser against Seller within five hundred forty (540) days after Closing This Section 7.3 shall be automatically waived and released by Purchaser. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortssurvive Closing.

Survival of Seller’s Representations and Warranties. The Upon Closing hereunder, the covenants, representations and warranties of Seller set forth in this Article 5 will Section 4.01 above, as 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 Date and shall survive the Closing for a period of three hundred sixty-five one (3651) days after Closingyear. No claim for a breach of However, notwithstanding anything to the contrary herein, to the extent that any representation documents or warranty of information regarding Seller will be actionable or payable (i) if the breach Property is disclosed to Buyer in question results from writing or is based on a condition, state of facts or other matter which was known brought to Purchaser or Blackbaud, Inc. Buyer's attention in writing prior to Closing, (ii) unless and Buyer nevertheless closes the valid claims for all such breaches collectively aggregate more than $50,000.00, in which event the full amount of such valid claims will be actionable, up to but not exceeding the amount purchase of the Liability Cap (as defined below)Property, Buyer shall be deemed to have accepted and (iii) unless written notice containing a description of the specific nature of to have waived any objection to or claim based on such breach will have been given by Purchaser to documents or information. If Seller prior to the expiration of said three hundred sixty-five (365) day period anddefaults in any obligation, if not addressed to Purchaser’s satisfaction, an action will have been commenced by Purchaser against Seller within five hundred forty (540) 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 amount of the Liability Cap. As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after that expressly survives 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 that Buyer has not been commenced by Purchaser 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 within five hundred forty 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 contrary, Seller shall not be obligated to pay any damages or other amounts pursuant to this Section 4.02 until the aggregate amount sought by Buyer hereunder exceeds Twenty-Five Thousand Dollars (540$25,000.00) days after Closing (the "SELLER THRESHOLD AMOUNT"), whereupon Seller shall be automatically waived and released liable for all amounts (including the Seller Threshold Amount) for which relief and/or a remedy may be sought by Purchaser. As to any litigation commenced Buyer under this section, Section 4.02. The immediately preceding sentence shall survive the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsClosing.

Survival of Seller’s Representations and Warranties. The representations and warranties of each Seller set forth in this Article 5 will 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 after Closingmonths (such period being the “Survival Period”). No Seller shall have any liability hereunder relating to a breach of a representation or warranty by any other Seller, it being agreed by Purchaser that any 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 will shall be actionable or payable (ia) 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 or Blackbaud, Inc. has knowledge prior to Closing, (iib) unless the valid claims for all such breaches against any one or more of such Sellers (including, without limitation, all attorneys’ fees and court costs) exceed the lesser of Fifty Thousand and No/100 Dollars ($50,000.00) for any single Seller or Property or collectively aggregate to more than One Hundred Thousand and No/100 Dollars ($50,000.00100,000.00) with respect to all Sellers and all Properties, in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiic) unless Purchaser has provided written notice containing a description of the specific nature of such breach will have been given by Purchaser to Seller Sellers prior to the expiration of said three hundred sixty-five (365) day period and, if not addressed to Purchaser’s satisfaction, the Survival Period and an action will shall have been commenced by Purchaser against Seller within five hundred forty the applicable Seller, if at all, prior to thirty (54030) days after Closingthe expiration of the Survival Period. For purposes of the foregoing sentence, Purchaser shall be deemed to have “knowledge” of any such breach if (i) Purchaser has actual knowledge of such breach (including by Seller notification pursuant to Section 5.4(g)(iii)), (ii) such breach is disclosed in materials included in the Datasite as of 4 p.m. (Central Time) on December 18, 2014, (iii) such breach is disclosed in any exhibits or schedules to this Agreement, or (iv) such breach is disclosed by the Title Commitments or Surveys (as the same may have been updated). In no event will Seller’s shall 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 and/or the certificate to be delivered by such Seller at Closing pursuant to Section 4.2(f) hereof, exceed the amount of One Million Eight Hundred Forty-Six Thousand Five Hundred and No/100 Dollars ($1,846,500.00) (in total, with respect to all Sellers and all Properties) (the Liability “Cap”). As used in this Agreement, Sellers shall deposit with the term “Liability Cap” will mean Title Company at Closing the total aggregate full amount of $1,500,000the Cap, which amount shall be held in escrow during the Survival Period pursuant to the terms of an Escrow Agreement in the form of Exhibit J attached hereto (the “Holdback Escrow Agreement”); provided, however, this $1,500,000 Liability that the Cap shall not apply to claims resulting solely from fraud consisting any Seller’s liability with respect to prorations contained in Section 4.4, any Seller’s actual fraud, or Sellers’ liabilities under Section 8.1. Upon the expiration of intentional misrepresentations made with an intent to deceive. Any claim for fraud the Survival Period, if Purchaser shall not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and have filed any claim with respect to the provisions of fraud asserted against Seller this Section 5.3 in writing within three hundred sixty-five (365) days after Closing butaccordance with the terms and provisions of the Holdback Escrow Agreement, absent an agreement between Purchaser and Sellerthe Title Company shall, as upon written request from Sellers, promptly disburse the Cap amount to which an action has not been commenced Sellers pursuant to directions provided by Purchaser against Seller within five hundred forty (540) days after Closing shall be automatically waived and released Sellers despite any objection by Purchaser. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection efforts.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1, as updated by Seller’s Closing Certificate, shall survive the Closing for a period of three until the date that is one hundred sixty-five fifty (365150) days after Closingthe Closing Date (the “Expiration Date”). No claim for a breach of any representation or warranty of Seller will shall 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 known to Purchaser or Blackbaud, Inc. prior to Closing, (iia) unless the valid claims for all such breaches collectively aggregate more than Two Hundred Fifty Thousand Dollars ($50,000.00250,000.00) or more, in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiib) unless written notice containing a reasonable description of the specific nature of such breach will 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 or payment under an insurance policy, service contract or Lease for such claim. As used herein, the term “Cap” shall mean the total aggregate amount of One Million Five Hundred Thousand and No/100 Dollars (365) day period and, if not addressed to Purchaser’s satisfaction, an action will have been commenced by Purchaser against Seller within five hundred forty (540) days after Closing$1,500,000.00). In no event will shall Seller’s aggregate liability to Purchaser for breach any and all breaches of any representation or warranty of Seller in this Agreement or Seller’s Closing Certificate exceed the amount of the Liability Cap, and Purchaser hereby waives and disclaims any right to damages or compensation for any and all such breaches in excess of the Cap. As used in Any liability of Seller pursuant to this Agreement, Section 5.3 shall be set off against the term “Liability Cap” will mean the total aggregate amount of $1,500,000Purchase Price; provided, however, that, subject to the provisions of this $1,500,000 Liability Section 5.3, Purchaser shall have the right to proceed against the proceeds of this transaction up to the Cap in order to provide Purchaser protection with respect to the availability of funds to provide for any claims for breach of representations and warranties of Seller. At Seller’s request, Purchaser shall not apply 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 claims resulting solely from fraud consisting this Section 5.3 after the deduction therefrom of intentional misrepresentations made with an intent to deceive. Any (i) the amount of such claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between which Purchaser and Seller, as to which an action has not been commenced 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 against Seller within five hundred forty (540) days after Closing shall be automatically waived and released by Purchaser. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsin connection with such refund of transfer taxes.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1 hereof shall survive Closing for a period of three hundred sixty-five one (3651) days after Closingyear. No claim for a breach of any representation or warranty of Seller will shall 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 known to Purchaser or Blackbaud, Inc. prior to Closing, . Seller shall have no liability to Purchaser for a breach of any representation or warranty (iia) 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 Five Hundred Thousand Dollars ($50,000.00500,000), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined belowin this Section), and (iiib) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five one (3651) day year period and, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser against Seller within five hundred forty one (5401) year and ninety (90) days after of Closing. In no event will Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller’s aggregate liability , and Seller shall not be liable to Purchaser for breach of any representation if Purchaser's claim is satisfied from such insurance policies, service contracts or warranty of Seller in this Agreement exceed the amount of the Liability CapLeases. As used in this Agreementherein, the term “Liability "Cap” will " shall mean the total aggregate amount of One Million Dollars ($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 1,000,000) with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As respect to any litigation commenced under and all claims relating to this sectionProperty 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 prevailing party Property pursuant to purchase and sale agreements of even date. This Section 5.3 shall be entitled have no application to recover from any claims of Purchaser with respect to warranties of title conveyed by the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsDeed.

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 Article 5 will Agreement shall survive Closing for a period of three hundred sixty-five six (3656) days after Closingmonths following the Closing (the “Outside Claim Date”). No claim for a breach of any representation or warranty of Seller will or under any such Seller Estoppel shall 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 Purchaser or Blackbaud, Inc. 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 (iia) unless the valid claims for all such breaches collectively delivered pursuant hereto or thereto aggregate more than Seventy Five Thousand Dollars ($50,000.0075,000.00) (the “Basket”), in which event the amount of such valid claims, shall be actionable for the full amount of such valid claims will be actionableclaims, up to but not exceeding the amount of the Liability Cap (as defined belowin this Section), and (iiib) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser Buyer to Seller on or prior to the expiration of said three hundred sixty-five (365) day period andOutside Claim Date, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser Buyer against Seller within five hundred forty three (5403) days months after Closingthe Outside Claim Date. In no event will 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 aggregate liability to Purchaser for breach of any representation claim is satisfied from such insurance policies, service contracts or warranty of Seller in this Agreement exceed the amount of the Liability CapLeases. As used in this Agreementherein, the term “Liability Cap” will 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 $1,500,000; providedExhibit Q (the “Holdback Escrow Agreement”), howeveran amount of cash equal to the Cap, this $1,500,000 Liability Cap which shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser and secure Seller, as to which an action has not been commenced by Purchaser against Seller within five hundred forty (540) days after Closing shall be automatically waived and released by Purchaser. As to any litigation commenced ’s liability under this sectionAgreement as provided herein. Subject to the provisions of the Holdback Escrow Agreement, the prevailing party Seller shall be entitled to recover from receive, and the non-prevailing partyEscrow Agent shall promptly pay to Seller, an amount equal to all amounts remaining in the prevailing party’s attorneys' feesHoldback Escrow Fund, paralegal feestogether with interest earned thereon, investigative fees (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 costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsthe 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 this Article 5 will V shall survive Closing for a period of three hundred sixty-five nine (3659) days after Closingmonths only. No claim for a breach of any representation or warranty of Seller will indemnity under this Section 5.17 shall be actionable or payable (ia) 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 or Blackbaud, Inc. 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), (iib) unless the valid claims for all such breaches collectively aggregate more than $50,000.0015,000, in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiic) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five the nine (3659) day month period and, if not addressed to Purchaser’s satisfaction, set forth above and an action will shall have been commenced by Purchaser against Seller within five hundred forty (540) days a reasonable period of time after Closingthe termination of the survival period provided for above in this Section 5.17. As used in this Section 5.17, the term “Cap” shall mean the total aggregate amount of $949,500. In no event will shall Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement Article V exceed the amount of the Liability Cap. As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection efforts.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1, as updated by Seller's Closing Certificate, shall survive Closing for a period of three hundred sixty-five nine (3659) days months after Closing. No Except with respect to fraudulent misrepresentation for which the Agreement is terminated under Section 6.2, in which event Section 6.2 shall apply, no claim for a breach of any representation or warranty of Seller will shall be actionable or payable (ia) 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, (iib) unless the valid claims for all such breaches collectively aggregate more than Ten Thousand and No/100 Dollars ($50,000.0010,000.00) or more, in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiic) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five nine (3659) day month period and, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser against Seller within five hundred forty eleven (54011) days months after Closing. In the event of any breach by Seller of its representations and warranties contained herein which Purchaser first discovers after Closing and provides timely notice as aforesaid, Seller shall indemnify and hold Purchaser harmless from and against any and all loss, damage, cost or expense resulting therefrom up to but not exceeding the Cap. Seller shall not be liable to Purchaser to the extent Purchaser's claim is or can be satisfied from any insurance policy, Service Contract or Lease and Purchaser agrees to first seek reimbursement of any claims from said insurance policy, Service Contract or Lease prior to seeking indemnification from the Seller. As used herein, the term "Cap" shall mean the total aggregate amount equal to Three Hundred Fifty Thousand and No/100 Dollars ($350,000.000). In no event will 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 Seller's Closing Certificate exceed the amount of the Liability Cap. As used , and Purchaser hereby waives and disclaims any right to damages or compensation for any and all such breaches in this Agreement, excess of the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection efforts.

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 9 hereof as updated as of the Closing in accordance with the terms of this Article 5 will Agreement, shall survive Closing for a period until the earlier to occur of three hundred sixty-five (365i) days December 31, 2006 or (ii) the date which is one (1) year after Closing. No claim for a breach of any representation or warranty of Seller will shall 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 known to Purchaser Buyer prior to or Blackbaud, Inc. 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 (iia) unless the valid claims for all such breaches collectively aggregate more than Twenty-Five Thousand Dollars ($50,000.0025,000.00), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined belowin this Section), and (iiib) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser Buyer to Seller prior to the expiration of said three hundred sixtyone (1) year period. Buyer agrees to first seek recovery under any insurance policies prior to seeking recovery from Seller, and Seller shall not be liable to Buyer if Buyer's claim is satisfied from such insurance policies. Notwithstanding anything to the contrary herein, the maximum aggregate amount which may be awarded to or collected by Buyer under this Agreement (including, without limitation, for any breach of representations and warranties contained herein), and any and all documents executed pursuant hereto or in connection herewith, including, without limitation, the Deed, Xxxx of Sale and Assignment and Assumption Agreement, or for any reason whatsoever, shall under no circumstances whatsoever exceed Five Hundred Thousand ($500,000.00) (the "Cap"). At Closing, Seller shall place Two-five Hundred Fifty Thousand Dollars (365$250,000) day period andinto escrow with Commercial Title Group, if not addressed Inc. to Purchaser’s satisfactionbe held as security for any claims brought by Buyer after Closing relating to a breach of a representation or warranty as contemplated in this Section 9(b) until the earlier to occur of (i) December 31, an action will have been commenced by Purchaser against Seller within five hundred forty 2006 or (540ii) days the date which is one (1) year after Closing. In no the event will Seller’s aggregate liability to Purchaser for written notice of such breach of any representation or warranty of Seller in this Agreement exceed the amount of the Liability Cap. As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser and Seller, as to which an action has not been commenced given by Purchaser against Buyer to Seller within five hundred forty (540) days after Closing prior to the expiration of said aforementioned time period, the funds shall automatically be automatically waived and released by PurchaserCommercial Title Group, Inc. and forwarded to Seller. As to any litigation commenced under this section, the prevailing party This provision shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortssurvive Closing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of three hundred sixty-five nine (3659) days after months. After Closing. No , no claim for a breach of any representation or warranty of Seller will shall be actionable or payable (ia) 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 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), (iib) unless the valid claims for all such breaches collectively aggregate more than One Hundred Thousand and No/100 Dollars ($50,000.00100,000.00), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiic) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five nine (3659) day month period and, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser against Seller within five hundred forty ten (54010) days after Closingthe 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 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 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 Three Million and No/100 Dollars ($3,000,000.00). In no event will 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(g) hereof exceed the amount of the Liability Cap. As used in this Agreement, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability the Cap shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced the prorations under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing partyAgreement or Seller’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsbroker indemnity obligations under Section 8.1.

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 this Article 5 will Section 6.1, as they may be updated at Closing, (i) shall survive Closing for a period of three and expire two hundred sixty-five seventy (365270) days after Closingthe 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 time, not less than thirty (30) 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 (i) hereof. No claim Seller shall have no liability to Purchaser for a breach of any representation or warranty of Seller 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 known to Purchaser or Blackbaud, Inc. prior to Closing, (ii) unless the valid claims for all such breaches collectively aggregate more than $50,000.00, in which event the full amount of such valid claims will be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iii) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period andthe Survival Period. Furthermore, notwithstanding anything to the contrary contained in this Contract, if not addressed to Purchaser’s satisfaction, an action will the Closing shall have been commenced by occurred: (a) Seller shall have no liability (and Purchaser shall make no claim against Seller within five hundred forty (540Seller) days after Closing. In no event will Seller’s aggregate liability to Purchaser 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 Agreement Contract, unless the valid claims for actual damages incurred due to such breaches 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, 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 Liability Capcase of fraud. As used Seller covenants and agrees that from and after the Closing until the last day of the Survival Period, Seller shall maintain a minimum net worth as determined in this Agreement, the term “Liability Cap” will mean the total aggregate amount accordance with generally accepted accounting principles of not less than Seven Hundred Fifty Thousand and No/100 Dollars ($1,500,000750,000.00); provided, however, this 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 required by such judgment or settlement, a net worth of not less than the lesser of (i) $1,500,000 Liability Cap shall not apply 750,000 or (ii) 125% of the reasonable amount required to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceivesatisfy such claim. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced ’s obligations under this section, Section 6.2 shall survive the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsClosing.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will 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 Closingthe 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 will shall be actionable or payable (ia) 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, (iib) unless the valid claims for all such breaches collectively aggregate more than Seventy-Five Thousand and No/100 Dollars ($50,000.0075,000.00), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined in this Section 5.3 below), and (iiic) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five (365) day period and, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser against Seller within three hundred sixty-five hundred forty (540365) days after of Closing. Purchaser agrees to first seek recovery under any insurance policies, service contracts and Leases prior to seeking recovery from Seller, and Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from such insurance policies, service contracts or Leases. 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 will 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 Liability Cap. As used in this Agreement, To the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall extent that Seller does not apply have sufficient assets or liquidity to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and satisfy 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. As to any litigation commenced such obligations under this sectionSection 5.3, the prevailing party shall be entitled Purchaser may look to recover from the non-prevailing partyBrookdale Investors Two, the prevailing partyL.P., with respect to DT Center only, and Brookdale Investors Three, L.P., with respect to Ridgeview only, to satisfy Seller’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsobligations under this Section 5.3.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1 hereof as updated by the certificate of Seller to be delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof, shall survive Closing for a period of three hundred sixty-five twelve (36512) days after Closingmonths. No claim for a breach of any representation or warranty of Seller will shall be actionable or payable (ia) 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, (iib) unless the valid claims for all such breaches collectively aggregate more than Fifty Thousand and No/100 Dollars ($50,000.00), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiic) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three hundred sixty-five twelve (36512) day month period and, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser against Seller within five hundred forty ten (54010) days after Closingthe termination of the 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). In no event will shall Seller’s aggregate liability to Purchaser for breach of any representation or warranty of Seller in this Agreement 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 Liability Cap. As used Except as expressly provided in this Agreementthe documents to be executed by Seller or Purchaser at Closing hereunder, the term “Liability Cap” will mean the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap neither Seller nor Purchaser shall not apply to claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and have 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. As to any litigation commenced liability under this sectionAgreement or under any of the documents or instruments to be executed by Seller or Purchaser at Closing hereunder for any speculative, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsconsequential or punitive damages.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller Sellers set forth in this Article 5 will Agreement, including, without limitation, Section 16(a) hereof, as updated as of the Closing Date in accordance with the terms of this Agreement, shall survive Closing for a period of three one hundred sixty-five and eighty (365180) days after Closingdays, 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 with respect to the Project owned by such Seller 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 known to Purchaser or Blackbaud, Inc. prior to Closing, (ii) unless the valid claims for all such breaches with respect that Project only collectively aggregate more than Fifty Thousand Dollars ($50,000.00), in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined belowin this Section 16(d)), and (iiiii) unless written notice containing a description of the specific nature of such breach will 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, if not addressed to Purchaser’s satisfaction, and an action will shall have been commenced by Purchaser against such Seller within five hundred forty thirty (54030) days after Closingdelivery of notice of the alleged breach. As used herein, the term “Cap” shall mean One Million Five Hundred Thousand U.S. Dollars ($1,500,000.00). In no event will Seller’s aggregate whatsoever shall 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 in this Agreement exceed the amount of the Liability Cap. As used Sellers’ representations and warranties set forth in this Agreement. At Closing, Sellers shall cause Inland Western Retail Real Estate Trust, Inc. (“Guarantor”) to execute and deliver to Purchaser a guaranty in the term “Liability Cap” will mean form attached hereto as Exhibit Q, whereby Guarantor shall agree to guarantee the total aggregate amount obligations of $1,500,000; provided, however, Sellers up to the Cap pursuant to this $1,500,000 Liability Cap shall not apply to claims resulting solely from fraud consisting Section 16(d) in the event of intentional misrepresentations made with an intent to deceive. Any a claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser and Seller, as to which an action has not been commenced by Purchaser against of a breach by any Seller within five hundred forty (540) days after Closing shall be automatically waived of its representations and released by Purchaser. As to any litigation commenced warranties under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsAgreement.

Survival of Seller’s Representations and Warranties. The representations and warranties of Seller set forth in this Article 5 will Section 5.1, as updated by Seller’s Closing Certificate, shall survive Closing for a period of three one hundred sixty-five eighty (365180) days after Closing. No claim for a breach of any representation or warranty of Seller, nor any liability under a Seller will Lease Estoppel Certificate, shall be actionable or payable (ia) 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 or Blackbaud, Inc. prior to Closing, (iib) unless the valid claims for all such breaches and liability collectively aggregate more than Twenty-Five Thousand Dollars ($50,000.0025,000.00) or more, in which event the full amount of such valid claims will shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and (iiic) unless written notice containing a description of the specific nature of such breach will shall have been given by Purchaser to Seller prior to the expiration of said three one hundred sixty-five eighty (365180) day period and, if not addressed to Purchaser’s satisfaction, (or such shorter period as set forth in a Seller Lease Estoppel Certificate with respect thereto) and an action will shall have been commenced by Purchaser against Seller within five two hundred forty seventy (540270) days after Closing. Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from any insurance policy, service contract or Lease. As used herein, the term “Cap” shall mean One Million Dollars ($1,000,000.00). In no event will shall Seller’s aggregate liability to Purchaser (i) for breach any and all breaches of any representation or warranty of Seller in this Agreement exceed or Seller’s Closing Certificate and (ii) pursuant to Seller Lease Estoppel Certificates, exceed, in the aggregate, the amount of the Liability Cap. As used , and Purchaser hereby waives and disclaims any right to damages or compensation for any and all such breaches in this Agreement, excess of the term “Liability Cap” will mean Cap unless Seller shall have committed fraud in which event the total aggregate amount of $1,500,000; provided, however, this $1,500,000 Liability Cap shall not apply be applicable to such claims resulting solely from fraud consisting of intentional misrepresentations made with an intent to deceive. Any claim for fraud not asserted against Seller in writing within three hundred sixty-five (365) days after Closing and any claim of fraud asserted against Seller in writing within three hundred sixty-five (365) days after Closing but, absent an agreement between Purchaser 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. As to any litigation commenced under this section, the prevailing party shall be entitled to recover from the non-prevailing party, the prevailing party’s attorneys' fees, paralegal fees, investigative fees and costs incurred, through all appeals, bankruptcy proceedings, tribunals and collection effortsfraud.