AND THEIR OFFICERS, DIRECTORS, AFFILIATES,
MEMBERS, PARTNERS, REPRESENTATIVES, AGENTS, AND ANY SUCCESSORS OR ASSIGNS OF
PURCHASER (THE "PURCHASER INDEMNIFIED PARTY") FROM AND AGAINST ANY COSTS OR
EXPENSES (INCLUDING, WITHOUT LIMITATION, TAXES AND REASONABLE
32
ATTORNEYS' FEES), JUDGMENTS, LIABILITIES, FINES, LOSSES, CLAIMS AND DAMAGES
(COLLECTIVELY, "DAMAGES"), AS INCURRED, TO THE EXTENT THEY ARISE OUT OF OR ARE A
RESULT OF:
(I)
THE BREACH OR ANY INACCURACY IN ANY OF THE REPRESENTATIONS AND
WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT;
(II)
ANY BREACH OR DEFAULT BY SELLER OF ANY COVENANT OR AGREEMENT OF
SELLER HEREUNDER;
(III)
THIRD-PARTY CLAIMS AGAINST ANY PURCHASER INDEMNIFIED PARTY ARISING
OUT OF EVENTS THAT OCCUR PRIOR TO THE CLOSING AND DURING THE PERIOD OF OWNERSHIP
BY SELLER OF THE TRUSTS AND WHICH PURPORT TO BE RELATED TO ANY OBLIGATION OR
LIABILITY OF THE TRANSFERRED COMPANIES (AS THE TRANSFERRED COMPANIES ARE
CONSTITUTED PRIOR TO CLOSING), THE PROPERTY MANAGERS OR ILLINOIS MANAGER,
INCLUDING, WITHOUT LIMITATION, CONTRACTUAL AND TORT CLAIMS AND/OR LIABILITIES
AND THE LITIGATION REFERRED TO IN SCHEDULE 5.2.5, PROVIDED THAT THE FOREGOING
SHALL NOT INCLUDE (AND, EXCEPT TO THE EXTENT PROVIDED FOR IN SECTIONS 5.5.2(I)
AND 5.5.2(II), SELLER SHALL NOT BE OBLIGATED TO INDEMNIFY THE PURCHASER
INDEMNIFIED PARTY FOR) CLAIMS BASED UPON OR ARISING OUT OF:
(W) ENVIRONMENTAL
MATTERS (OTHER THAN CLAIMS FOR BODILY INJURY OR PERSONAL INJURY BASED ON EVENTS
PRIOR TO CLOSING, BUT NOT PROPERTY DAMAGE), INCLUDING, WITHOUT LIMITATION, ANY
OBLIGATION TO REMEDIATE ANY HAZARDOUS SUBSTANCES, OR (X) THE PHYSICAL CONDITION
OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, PATENT AND LATENT DEFECTS, TITLE
AND ZONING MATTERS, GOVERNMENTAL APPROVALS, VALUATION, AND COMPLIANCE OF THE
PROPERTY WITH LAWS, OTHER THAN THIRD-PARTY CLAIMS FOR BODILY INJURY, PERSONAL
INJURY OR PROPERTY DAMAGE BASED ON EVENTS PRIOR TO CLOSING; (Y) ANY OBLIGATIONS
CONTAINED IN THE DOCUMENTS EVIDENCING THE EXISTING INDEBTEDNESS, OR (Z) TAX
MATTERS, EXCEPT IN EACH CASE TO THE EXTENT OF A BREACH OF AN EXPRESS
REPRESENTATION AND WARRANTY OF THE SELLER IN THIS AGREEMENT.
5.5.3
NOTICE AND RESOLUTION OF CLAIMS. NO CLAIM FOR INDEMNIFICATION UNDER
SECTION 5.5.2 SHALL BE ACTIONABLE OR PAYABLE (A) TO THE EXTENT PURCHASER
RECEIVED A PRORATION, ADJUSTMENT OR CREDIT AT CLOSING FOR SUCH CLAIM; (B) IF THE
CLAIM IN QUESTION RESULTS FROM OR IS BASED ON A CONDITION, STATE OF FACTS OR
OTHER MATTER WHICH WAS KNOWN TO ANY PURCHASER INDEMNIFIED PARTY (OTHER THAN THE
TRANSFERRED COMPANIES OR THE PROPERTY MANAGERS AS CONSTITUTED PRIOR TO CLOSING)
PRIOR TO OR AT CLOSING (IT BEING AGREED THAT ANY WRITTEN INFORMATION DELIVERED
TO PURCHASER PRIOR TO OR AT CLOSING IS DEEMED TO BE KNOWN TO ANY PURCHASER
INDEMNIFIED PARTY BUT SHALL NOT VARY SELLER'S REPRESENTATIONS AND WARRANTIES
EXCEPT TO THE EXTENT PROVIDED IN SECTION 4.2.5); (C) IF THE CLAIM RESULTS FROM A
BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT OF PURCHASER OR ANY SUCCESSOR
TO OR ASSIGNEE OF PURCHASER; (D) UNLESS AND UNTIL THE VALID CLAIMS UNDER THIS
SECTION 5.5 COLLECTIVELY AGGREGATE MORE THAN SIX HUNDRED THOUSAND DOLLARS
($600,000.00) (THE "DEDUCTIBLE"), IN WHICH EVENT, SUBJECT TO SECTION 5.5.3, ONLY