BE DELIVERED IN ACCORDANCE
WITH SECTION 4.2.5 HEREOF, AND THE COVENANTS SET FORTH IN THIS AGREEMENT TO BE
PERFORMED BY SELLER BETWEEN THE EFFECTIVE DATE AND THE CLOSING DATE, SHALL
SURVIVE CLOSING FOR A PERIOD OF TWELVE (12) MONTHS (THE "PROPERTY REPRESENTATION
EXPIRATION DATE"). THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN
SECTIONS 5.1 AND 5.2 HEREOF SHALL SURVIVE CLOSING FOR A PERIOD OF TWELVE (12)
MONTHS (THE "REMAINING REPRESENTATION EXPIRATION DATE") IN EACH CASE AS UPDATED
BY THE CERTIFICATE OF SELLER TO BE DELIVERED TO PURCHASER AT CLOSING IN
ACCORDANCE WITH SECTION 4.2.5 HEREOF.
5.5.2
SELLER'S INDEMNIFICATION OBLIGATIONS. SUBJECT TO THE OTHER PROVISIONS
OF THIS SECTION 5.5, FROM AND AFTER THE CLOSING UNTIL THE PROPERTY
REPRESENTATION EXPIRATION DATE OR THE REMAINING REPRESENTATION EXPIRATION DATE,
AS APPLICABLE (WHICH REMAINING REPRESENTATION EXPIRATION DATE SHALL BE
APPLICABLE TO ANY CLAIMS UNDER SECTIONS 5.5.2(III) AND 5.7.1 BELOW), SELLER
SHALL INDEMNIFY AND HOLD HARMLESS PURCHASER, RIVERSIDE LLC AND THE TRUST (AS
RIVERSIDE LLC AND THE TRUST ARE CONSTITUTED AFTER CLOSING) AND PURCHASER'S
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 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 TRUST AND WHICH PURPORT TO BE RELATED TO ANY OBLIGATION OR
LIABILITY OF THE PROPERTY MANAGER, ILLINOIS MANAGER, THE TRUST OR RIVERSIDE LLC
30
(AS THE TRUST AND RIVERSIDE LLC ARE CONSTITUTED PRIOR TO CLOSING), 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 OUTSTANDING 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.