Common use of Limitations on Indemnity Clause in Contracts

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding any other provision of this Agreement to the contrary, the maximum liability of the Indemnifying Parties for or arising out of Indemnity Claims shall not exceed, and the Indemnified Parties shall not be entitled to be indemnified for Damages to the extent the aggregate amount of such Damages exceed, 10% of the Purchase Price (the “Indemnification Cap”). Notwithstanding the foregoing sentence, the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) a breach of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Cap. (b) Notwithstanding any other provision of this Agreement to the contrary (except for Section 6.1), the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject to Section 7.1(a), with respect to liability for Damages incurred or suffered in connection with, arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for which the parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentence.

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding any other provision of this Agreement to the contrary, the maximum liability of the Indemnifying Parties for or arising out of Indemnity Claims The Shareholders shall not exceedhave any liability or obligation to Purchaser or the Company whatsoever, and no claim shall be asserted against the Indemnified Parties shall not be entitled to be indemnified Shareholders, for Damages indemnification under Section 8.1(a) unless and until the aggregate amount of Losses incurred by Purchaser and/or the Company as a result thereof exceeds $100,000, and then only to the extent the aggregate amount of such Damages exceedLosses exceeds $100,000 and is less than Four Million Seven Hundred and Fifty Thousand Dollars ($4,750,000); provided, 10% of however, that the Purchase Price (the “Indemnification Cap”). Notwithstanding the foregoing sentence, the Indemnification Cap limitations set forth above in this Section 8.3(a) shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; apply to (i) the fraud or willful misconduct any intentional breach of the Indemnifying Parties; Shareholders’ representations or warranties of which any Shareholder had knowledge at any time prior to or on the date hereof, or (ii) a claims for indemnification resulting from the breach or inaccuracy of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained set forth in Sections 5.1(b4.5(a), 5.2(b), 5.2(h), 5.2(j4.6(g) and 5.3(a4.8. In addition and for the avoidance of doubt, the limitations set forth above in this Section 8.3(a) shall not apply to claims for indemnification arising under Sections 8.1(b) and/or 8.1(c)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by . (b) All representations and warranties in this Agreement; , the Schedules and the certificates and other documents delivered pursuant hereto shall survive the Closing and be enforceable against the party making the same for a period of one (iii1) Third Party Claims to year from the extent Closing Date at which time they shall expire and be of available insurance proceedsno further force or effect; and provided, however, that (ivi) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of the representations and warranties set forth in Section 5.2(d). Furthermore4.5(a) shall survive for a period of two (2) years, Damages recovered by (ii) the Indemnified Parties representations and warranties set forth in connection with or arising out Section 4.10 shall survive for a period of eighteen (18) months, and (iii) the representations and warranties set forth in Section 4.8 shall survive for the period of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount statute of Damages that will be subject limitations applicable to the Indemnification Cap. (b) Notwithstanding any other provision of this Agreement to the contrary (except such representations and warranties. Any claim for Section 6.1), the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject to Section 7.1(a), indemnification with respect to liability any such matter which is not asserted by a notice given as herein provided within such period of survival may not be pursued and shall be thereafter forever barred. Indemnification pursuant to this Article 8 shall be the sole remedy of Shareholders and Purchaser for Damages incurred a breach of a representation or suffered in connection with, arising out of, resulting from warranty made pursuant to this Agreement; other than fraudulent breaches of representations or relating or incident to any breach under this Agreement by such Investor, warranties for which the parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that common law remedies are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentenceavailable.

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding Notwithstanding any other provision of in this Agreement to the contrary, the maximum liability of the Indemnifying Parties for or arising out of Indemnity Claims shall not exceed, and the CEI Indemnified Parties shall not be entitled to be indemnified for Damages indemnification pursuant to the extent Section 10.2(a) unless and until the aggregate amount of Damages to the CEI Indemnified Parties with respect to such Damages exceed, 10% of the Purchase Price matters under Section 10.2(a) exceeds one million dollars ($1,000,000) (the “Indemnification CapDeductible”). Notwithstanding , and then only to the foregoing sentenceextent such Damages exceed the Deductible; provided, however, the Indemnification Cap Deductible shall not limit apply with respect to Damages claimed as a result of any breach of Section 6.1(b) or with respect to the Actions specifically referred to in Section 10.2(a)(i). The aggregate amount of Damages that payable by the Allied Parties to the CEI Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; respect to such matters under Section 10.2(a) (i) excluding the fraud or willful misconduct of the Indemnifying Parties; (ii) a breach of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority Actions specifically referred to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d10.2(a)(i). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining exceed two hundred million dollars ($200,000,000) (the amount of “Cap”) unless the Damages that will be subject arise from or otherwise relate to the Indemnification Capbreach of any of Sections 4.1, 4.2, 4.3, 4.4(f), 4.10, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 or 6.1(b) by the Allied Parties in which event the maximum amount for which the Allied Parties are liable shall equal the Purchase Price. (b) Notwithstanding any other provision of in this Agreement to the contrary (except for Section 6.1)contrary, the Indemnifying Allied Parties shall not be responsible liable to, or indemnify the CEI Indemnified Parties for, and any Damages claimed under this Agreement that are punitive (except to the extent constituting third-party punitive claims), special, consequential, incidental, exemplary, lost profits or otherwise not actual damages. The CEI Indemnified Parties shall not be entitled to be indemnified use “multiple of profits” or “multiple of cash flow” or any similar valuation methodology in calculating the amount of any Damages. If the Closing occurs, this Article X constitutes the CEI Parties’ sole and exclusive remedy for any and all Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and or other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal claims relating to or less than arising from this Agreement and the Aggregate Indemnity ThresholdTransactions contemplated hereby. (c) Under Notwithstanding any other provision in this Agreement to the contrary, no circumstance Allied Party shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject be entitled to indemnification pursuant to Section 7.1(a), 10.3 unless and until the aggregate amount of Damages with respect to liability for such matters under Section 10.3 exceeds the Deductible, and then only to the extent such Damages incurred or suffered in connection withexceed the Deductible; provided, arising out ofhowever, resulting that the aggregate amount of Damages payable by any CEI Party to the Allied Parties hereunder shall not exceed the Cap unless the Damages arise from or relating otherwise relate to the breach of any of Sections 5.1, 5.2, 5.3, 5.4, 5.6, 5.7, 5.10, 5.13, 5.14, 5.15 or incident 5.21 by the CEI Parties, in which event the maximum amount for which the CEI Parties are liable shall equal the Purchase Price. (d) Notwithstanding any other provision in this Agreement to the contrary, CEI shall not be liable to, or be required to indemnify any breach Allied Indemnified Parties for, any Damages claimed under this Agreement by such Investorthat are punitive (except to the extent constituting third-party punitive claims), for which special, consequential, incidental, exemplary or otherwise not actual damages or (iii) that are in the parties agree that only the Investor who committed such breach shall be liable (and that such liability nature of lost profits or any diminution in value of property or equity. The Allied Parties shall not be subject use “multiple of profits” or “multiple of cash flow” or any similar valuation methodology in calculating the amount of any Damages. If the Closing occurs, this Article X constitutes the Allied Parties’ sole and exclusive remedy for any and all Damages or other claims relating to or arising from this Agreement and the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentenceTransactions contemplated hereby.

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding any other provision of this Agreement Notwithstanding anything contained herein to the contrary, but subject to Section 6.6(b), the maximum liability collective obligation of the Indemnifying Parties Seller and Landec under this Article 6 to indemnify or reimburse Buyer Indemnified Persons for or arising out of any claims for Losses (each, an “Indemnity Claims Claim”) shall not exceed, and the Indemnified Parties shall not be entitled to be indemnified for Damages subject to the extent the aggregate amount of such Damages exceed, 10% of the Purchase Price (the “Indemnification Cap”). Notwithstanding the foregoing sentence, the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of;following limitations: (i) Seller and Landec shall have no obligation with respect to any Indemnity Claim (or series of related Indemnity Claims) unless the fraud Indemnity Claim (or willful misconduct series of the Indemnifying Parties;related Indemnity Claims) is for Losses exceeding $10,000 (each, a “Covered Claim”). (ii) Seller and Landec shall have no obligation with respect to any Indemnity Claims until the total amount of the Indemnity Claims reaches $500,000 (the “Basket”). If the Basket is exceeded, then the Buyer Indemnified Persons shall be entitled to receive the entire amount of the Covered Claims, including the first $500,000. (iii) The maximum aggregate obligation of Seller and Landec with respect to all Covered Claims resulting from or arising from a breach of the representations and or warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained in under Sections 5.1(b3.4(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), 3.8 or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and3.9 shall not exceed $1,500,000. (iv) Obligations The maximum aggregate obligation of Seller pursuant and Landec with respect to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) all Covered Claims shall not be counted in determining exceed $20,000,000 (the amount of Damages that will be subject to the Indemnification “Cap”). (b) Notwithstanding any other provision of this Agreement the foregoing in subsection (a) to the contrary (except for Section 6.1), the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold.contrary, (ci) Under no circumstance neither the Basket nor the Cap shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject apply to Section 7.1(a), with respect to liability for Damages incurred or suffered in connection with, arising out of, Losses (A) resulting from or relating or incident to any arising from a breach under this Agreement by such Investor, for Section 5.1 (Covenant Not to Compete) or (B) which are indemnifiable pursuant to Section 6.2(b) or 6.2(c); (ii) the parties agree that only the Investor who committed such breach shall be liable (and that such liability Cap shall not be subject apply to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon Losses resulting from or arise out arising from a breach of the circumstances described representations or warranties in Section 7.3(a)(i3.3 (Capitalization and Ownership – Company); and (iii) no Losses referred to in this subsection (b) shall be paid, up to its portion counted for purposes of determining whether the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentenceCap has been met.

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding any other provision of this Agreement to the contrary, the maximum liability None of the Indemnifying Buyer Indemnified Parties for or arising out shall be entitled to assert any right to indemnification under Section 7.1(a) until (i) each individual amount of Indemnity Claims Losses otherwise due the Buyer Indemnified Parties exceeds $250,000 (the "DE MINIMIS AMOUNT") (PROVIDED, that (X) the term "individual amount of Losses" shall mean each individual breach of a particular warranty and not exceedthe aggregation of individual breaches of a particular warranty into a single breach (e.g., if Seller failed to disclose five contracts under a particular warranty, and the Indemnified Parties failure to disclose any one of those contracts would be a breach, then the five contracts together would be considered multiple breaches, of which each such undisclosed contract would be an "individual amount of Loss") and (Y) for purposes of the calculation of the Loss with respect to such individual breach, a series of separate Losses caused by or resulting from the same individual breach shall not be entitled aggregated (e.g., if an individual breach causes or results in two separate Losses of $200,000 each, such Losses shall be aggregated to be indemnified a sum of $400,000 for Damages purposes of determining whether the "Loss" with respect to the extent such individual amount is less than $250,000)) and (ii) the aggregate amount of such Damages exceed, 10all the Losses actually suffered by the Buyer Indemnified Parties exceeds 3.0% of the Purchase Price (the “Indemnification Cap”"DEDUCTIBLE AMOUNT"). Notwithstanding , and then only to the foregoing sentenceextent such Losses exceed, in the aggregate, the Indemnification Deductible Amount. For the avoidance of doubt, indemnification for Losses arising from breaches of any of Sections 2.7(a)(v), 2.21(b)(xxi)-(xxiv) and 2.22(1)-(n) shall not be subject to either the De Minimis Amount or to the Deductible Amount, and all such Losses shall be indemnified beginning with the first dollar of Loss. Anything in this Agreement to the contrary notwithstanding, in no event shall Seller or GAC be required to indemnify Parent, Buyer, any Acquired Company or the Buyer Indemnified Parties for Losses pursuant to Section 7.1(a) in any amount exceeding 65% of the Purchase Price (the "CAP"); PROVIDED, that the Cap shall not limit apply to Seller's and GAC's requirement to indemnify Parent, Buyer, any Acquired Company or the amount of Damages that the Buyer Indemnified Parties may recover in connection for Losses pursuant to Section 7.1(a) with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) respect to a breach of the representations and warranties regarding Investors’ ownership set forth in Sections 2.1, 2.2, 2.3, 2.7(a)(v), 2.21(b)(xxi)-(xxiv) or 2.22(l)-(n), and any indemnified Losses in respect of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership such representations and warranties shall not count against the Cap. (b) None of the InterestsSeller Indemnified Parties shall be entitled to assert any right to indemnification under Section 7.2(a) until (i) each individual amount of Losses otherwise due the Seller Indemnified Party exceeds the De Minimis Amount (PROVIDED, or that (X) the Waypoint Property Owners ownership term "individual amount of Losses" shall mean each Property individual breach of a particular warranty and not the aggregation of individual breaches of a particular warranty into a single breach (including without limitation as contained in Sections 5.1(b)e.g., 5.2(b)if Buyer failed to disclose five contracts under a particular warranty, 5.2(h)and the failure to disclose any one of those contracts would be a breach, 5.2(jthen the five contracts together would be considered multiple breaches, of which each such undisclosed contract would be an "individual amount of Loss") and 5.3(a))(Y) for purposes of the calculation of the Loss with respect to such individual breach, a series of separate Losses caused by or resulting from the Investors’same individual breach shall be aggregated (e.g., Fund XI’s if an individual breach causes or Seller’s authority results in two separate Losses of $200,000 each, such Losses shall be aggregated to consummate a sum of $400,000 for purposes of determining whether the transactions contemplated "Loss" with respect to such individual amount is less than $250,000))and (ii) the aggregate amount of all the Losses actually suffered by this Agreement; (iii) Third Party Claims the Seller Indemnified Parties exceeds the Deductible Amount, and then only to the extent of available insurance proceeds; and (iv) Obligations of such Losses exceed, in the aggregate, the Deductible Amount. Anything in this Agreement to the contrary notwithstanding, in no event shall Buyer be required to indemnify Seller, GAC or the Seller Indemnified Parties for Losses pursuant to Section 6.1 7.2(a) in any amount exceeding the Cap; PROVIDED, HOWEVER, that no such limitations (including without limitation A) shall affect Parent's and Buyer's obligation to pay the Purchase Price or (B) apply to Parent's and Buyer's obligations to indemnify Seller, GAC or the Seller Indemnified Parties for Losses pursuant to Section 6.1(b)7.2(a) and for any breaches (solely with respect to a breach of the representations and warranties set forth in Section 5.2(dSections 3.1 or 3.2). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Cap. (b) Notwithstanding any other provision of this Agreement to the contrary (except for Section 6.1), the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance No party hereto shall an Investor’s liability be liable to the others for Damages under any Indemnity Claim exceed indirect, special, incidental, consequential or punitive damages claimed by such Investor’s pro rata portion other party or parties, as the case may be, resulting from such first party's breach of such Damagesits representations, based on the percentages set forth on Exhibit A hereto, other than, subject warranties or covenants hereunder. (d) No Buyer Indemnified Party shall be entitled to Section 7.1(a), indemnification (i) with respect to liability any particular Loss to the extent specific provision or reserve for Damages incurred such matter is made in the June Financial Statements or suffered in the notes thereto or in an Adjustment Memorandum, as applicable or (ii) with respect to any matter that has been decided by the Accounting Expert (and which is expressly addressed as having been decided in the written findings of the Accounting Expert). (e) Each party shall have the right to retain copies of all documents delivered or made available by or to such party or its Affiliates in connection with, arising out of, resulting from or relating or incident with the transactions contemplated hereby to the extent reasonably required for the purpose of defending any breach claim against it under this Agreement by such Investor, for which the or enforcing its rights hereunder (including making any claims or counterclaims against third parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentenceSection 7.4).

Limitations on Indemnity. (a) Subject No Indemnifying Party shall be obligated to indemnify any Indemnified Party pursuant to Sections 7.2(a)(i), 7.2(a)(ii) (solely with respect to the next sentencefailure by Seller to fulfill its obligations pursuant to Section 4.12(b) hereof with respect to any breach of a representation or warranty), but notwithstanding any other provision of this Agreement 7.2(b)(i) and 7.2(b)(ii) (solely with respect to the contrary, the maximum liability failure by Buyer to fulfill its obligations pursuant to Section 4.12(b) hereof with respect to any breach of the Indemnifying Parties for a representation or arising out of Indemnity Claims shall not exceed, and the Indemnified Parties shall not be entitled to be indemnified for Damages warranty) to the extent the aggregate amount of such claims for Damages exceed, 10% of the Purchase Price Indemnified Parties against such Indemnifying Party for which indemnification is sought pursuant to such sections hereof is less than $6,750,000 (the “Indemnification CapThreshold Amount”) or exceeds an amount equal to $50,625,000 (the “Cap Amount”); provided, that, if the aggregate of all claims for Damages for which indemnification is sought against an Indemnifying Party pursuant to Sections 7.2(a)(i), 7.2(a)(ii) (solely with respect to the failure by Seller to fulfill its obligations pursuant to Section 4.12(b) hereof with respect to any breach of a representation or warranty), 7.2(b)(i) and 7.2(b)(ii) (solely with respect to the failure by Buyer to fulfill its obligations pursuant to Section 4.12(b) hereof with respect to any breach of a representation or warranty) equals or exceeds the Threshold Amount, then such Indemnifying Party shall be obligated to indemnify any Indemnified Party for such Damages subject to the limitations in this Section 7.6(a) only to the extent such Damages exceed the Threshold Amount, but in any event not to exceed the Cap Amount. Notwithstanding the foregoing sentenceforegoing, the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) a breach of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties limitations set forth in this Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv7.6(a) shall not be counted apply to any claims for indemnification in determining the amount respect of Damages that will be subject to the Indemnification Capany breach of Sections 2.2(a), 2.3, 2.6(d), 2.17, 2.18, 3.2(a) and 3.3, as applicable. (b) Notwithstanding In calculating the amount of any other provision of this Agreement Damages payable to the contrary (except for Section 6.1)an Indemnified Party hereunder, the Indemnifying Parties amount of the Damages (i) shall not be responsible forduplicative of any other Damage for which an indemnification claim has been made, (ii) shall be computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to such Damages (net of any costs and expenses incurred in obtaining such insurance proceeds) and (iii) shall be computed net of any amounts that were taken into account in the calculation of Closing Working Capital to the extent that such amounts (A) related to the subject matter of such Damages and (B) were in favor of the applicable Indemnified Party. If an Indemnifying Party pays an Indemnified Party for a claim and subsequently insurance proceeds in respect of such claim are collected by the Indemnified Parties Party, then the Indemnified Party promptly shall remit the insurance proceeds (net of any costs and expenses incurred in obtaining such insurance proceeds) to the Indemnifying Party; provided, however, that the Indemnified Party shall not be entitled required to be indemnified for Damages for, remit any Indemnity Claim until proceeds in excess of the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (amount actually paid by the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled Indemnifying Party pursuant to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject to Section 7.1(a), with respect to liability for Damages incurred or suffered this Article VII in connection with, arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for which with the parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentence.related claim for

Limitations on Indemnity. (a) Subject Notwithstanding the provisions of this Article VIII, Seller shall not be liable to the next sentence, but notwithstanding Purchaser Indemnified Parties for any other provision Losses with respect to any matters arising under clause (i) of this Agreement Section 8.3(a) except to the contraryextent the Losses therefrom in the aggregate exceed 98 $7,000,000, in which event Seller shall be liable to the maximum Purchaser Indemnified Parties only for such Losses above such amount; PROVIDED that the aggregate liability of the Indemnifying Parties for or arising out of Indemnity Claims Seller under Section 8.3(a)(i) shall not exceed, and the Indemnified Parties exceed $300,000,000. Purchaser shall not be entitled under this Agreement to be indemnified multiple recovery for Damages to the extent the aggregate amount of such Damages exceed, 10% of the Purchase Price (the “Indemnification Cap”). Notwithstanding the foregoing sentence, the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) a breach of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Capsame Losses. (b) Notwithstanding any other provision the provisions of this Agreement to Article VIII, Purchaser or the contrary (except for Section 6.1), the Indemnifying Parties Acquired Companies shall not be responsible for, and liable to the Seller Indemnified Parties for any Losses with respect to any matters arising under clause (i) of Section 8.2 except to the extent the Losses therefrom in the aggregate exceed $7,000,000, in which event Purchaser or the Acquired Companies shall be liable to the Seller Indemnified Parties only for such Losses above such amount; PROVIDED that the aggregate liability of Purchaser or the Acquired Companies under Section 8.2 shall not exceed $300,000,000. Seller shall not be entitled under this Agreement to be indemnified multiple recovery for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Thresholdsame Losses. (c) Under no circumstance In determining whether (1) there has been a breach of a representation or warranty for the purposes of Section 8.2(i) or 8.3(a)(i) and, (2) the amount of Loss pursuant to Sections 8.2(i) and 8.3(a)(i) above, each representation and warranty shall an Investor’s liability for Damages under be read without regard and without giving effect to any Indemnity Claim exceed "material" "materiality" or "Material Adverse Effect" standard or qualification (but excluding any specific dollar threshold) contained in such Investor’s pro rata portion representation or warranty (as if such standard or qualification were deleted from such representation or warranty). Indemnification shall not be available hereunder in respect of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject indemnity pursuant to Section 7.1(a)8.2(i) or 8.3(a)(i) (or counted toward the respective $7,000,000 baskets in this Section 8.4) in respect of any item unless such items, or such item together with a series of related items, result in a Loss of $100,000 or more. (d) Notwithstanding any other provisions of this Article VIII, Seller shall not be liable to the Purchaser Indemnified Parties under this Article VIII, Section 9.2(b) and the Letter Agreement for any liabilities of the Purchaser Indemnified Parties with respect to liability for Damages incurred or suffered Losses which are Identified Expenses in connection with, arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for which excess of (considered in the parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, aggregate with any Damages remaining thereafter under such claims, paid Identified Expenses indemnified pursuant to the preceding sentenceLetter Agreement or indemnified pursuant to Section 9.2(b) of this Agreement) $5,000,000; and provided, further, that such $5,000,000 limitation shall not apply to Losses that are not Identified Expenses, including, without limitation, the costs and expenses in investigating or defending a claim or action by a Plaintiff and any judgment or settlement paid to any Plaintiff; and provided further that any Losses that are Identified Expenses payable pursuant to Section 8.3(d) hereof shall be limited to documented out-of-pocket Identified Expenses. "Identified Expenses" means costs and expenses related to the investigation, negotiation, documentation and financing of the transactions contemplated by the Merger Agreement, including, without limitation, fees and expenses related to legal counsel, accounting services, tax advice, special consultants (including, without limitation, mining experts and environmental counsel and consultants), travel, printing of offering and syndication documents, and reimbursement of the expenses of the proposed financing sources.

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding any other provision of this Agreement to the contrary, the maximum liability of the Indemnifying Parties for or arising out of Indemnity Claims shall not exceed, and the Indemnified Parties shall not be entitled to be indemnified for Damages to the extent the aggregate amount of such Damages exceed, 10% of the Purchase Price (the “Indemnification Cap”). Notwithstanding the foregoing sentence, the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) a breach of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Cap. (b) Notwithstanding any other 9.6.1 Any provision of this Agreement to the contrary (except for Section 6.1)notwithstanding, the Indemnifying Parties parties to this Agreement hereby expressly acknowledge and agree that no Buyer Indemnified Party shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim indemnification from Tree pursuant to Section 9.1(i) hereof until the aggregate Damages for which Tree is liable under Section 9.1(i) hereof exceeds the amount of Fifty Thousand Dollars ($50,000.00), whereupon PNP and its affiliates shall be entitled to indemnification by Tree for the full amount of such Indemnity Claim and other Indemnity Claims exceeds Damages, including the first ($1,250,000 50,000.00) of such Damages (the “Aggregate Indemnity Threshold”); provided, however, that the foregoing Indemnity Threshold shall not apply in any manner whatsoever to any breach of the representations and warranties made by Tree in Section 4.1 (Organization, Power and Authority of the Company), Section 4.2 (Units of the Company), Section 4.6 (Tax Matters), the first sentence of Section 4.8 (Title to and Condition of Assets), Section 4.20 (Environmental Matters), Section 4.26 (Investment Bankers’ and Brokers’ Fees), Section 4.27 (Authority to Execute and Perform Agreement; Binding Obligation; Non-contravention), Section 4.28 (Status of the Units), Section 4.29 (The Subsidiary) or Section 4.30 (GLARE). 9.6.2 Any provision of this Agreement to the contrary notwithstanding, except in the event of fraud and with the exception of equitable remedies relating to the enforcement of certain covenants, the sole recourse of any Buyer Indemnified Party against Tree or any affiliate of Tree pursuant to Section 9.1 or otherwise under this Agreement shall be against funds remaining from time to time in the Escrow Fund. For In the avoidance event that the amount of doubt, at the point at which the Damages under for indemnity claims asserted by any single Indemnity Claim or collection Buyer Indemnified Party for breaches of Indemnity Claims Tree’s representations and warranties exceeds the Aggregate Indemnity Thresholdamount of the Escrow Funds, then the recourse of any Buyer Indemnified Parties Party shall be entitled against any funds available under the Representation and Warranty Insurance Policy. Notwithstanding the foregoing or anything else to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject to Section 7.1(a)contrary contained in this Agreement, with respect to liability for Damages incurred or suffered any indemnity claims in connection with, arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for which the parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out excess of the circumstances described in Section 7.3(a)(i) shall be paid, up Escrow Funds and the Representation and Warranty Insurance Policy concerning which Tree might have rights against third parties to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under recover for such claims, paid pursuant if desired by Buyer, Tree will transfer such rights to Buyer as are assignable and, if not assignable, upon reasonable request and the preceding sentenceadvancement of funds by Buyer in an amount reasonably necessary to cover the costs of pursuing the same, Tree will pursue any such non-assignable claims on Buyer’s behalf and in accordance with Buyer’s reasonable instructions and pay to Buyer the amount of any recovery or recoveries from the successful pursuit of such claims.

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding any other provision of this Agreement to the contrary, the maximum liability of the Indemnifying Parties for or arising out of Indemnity Claims shall not exceed, and the Indemnified Parties shall not be entitled to be indemnified for Damages to the extent the aggregate amount of such Damages exceed, 10% of the Purchase Price (the “Indemnification Cap”). Notwithstanding the foregoing sentence, the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) a breach of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interests, or the Waypoint Property Owners ownership of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Cap. (b) Notwithstanding any other provision of this Agreement to Agreement: (a) No claim or action shall be brought under clause (a) or (c) of Section 5.1 or clause (a) of Section 5.2 after the contrary lapse of eighteen (except for Section 6.1), 18) months after the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 Closing Date (the “Aggregate Indemnity ThresholdClaim Period”). For Notwithstanding the avoidance of doubtforegoing, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties there shall be entitled no time limitation on claims brought for (i) breaches of representations and warranties contained in Sections 3.1-3.7 (Organization, Organizational Documents, etc.), 3.10 (Good Title), 3.14 (Taxes) (provided, however, that the representations and warranties contained in Section 3.14 shall only constitute Fundamental Representations to be indemnified the extent related to income Taxes), 3.19 (Environmental), 3.27 (Specific Tax Matters) (provided, however, that the representations and warranties contained in Section 3.27(a) shall only constitute Fundamental Representations to the extent related to income Taxes), 3.29 (Securities Issues), 4.1-4.4 (Organization of Buyer, Authority, etc.). and 4.7 (Securities Issues) (the “Fundamental Representations”); or (ii) based on intentional misrepresentation. (b) Seller shall not have any liability for indemnification under clause (a) or (c) of Section 5.1 for any Buyer Indemnified Liability that is individually (and collectively with all Indemnity Claims regardless Buyer Indemnified Liabilities arising out of whether or relating to the Damages under any single Indemnity Claim is equal to same or substantially similar facts, circumstances, occurrences or conditions) less than the Aggregate Indemnity ThresholdThreshold Amount (“Excluded Buyer Liabilities”), and no Excluded Buyer Liabilities shall be aggregated for purposes of determining whether the Basket Amount has been reached under Section 5.7(d) or for purposes of Section 5.7(e). The limitation set forth in this Section 5.7(b) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (c) Under no circumstance Buyer shall an Investor’s not have any liability for Damages indemnification under clause (a) of Section 5.2 for any Indemnity Claim exceed such Investor’s pro rata portion Seller Indemnified Liability that is individually (and collectively with all Seller Indemnified Liabilities arising out of such Damagesor relating to the same or substantially similar facts, based on circumstances, occurrences or conditions) less than the percentages Threshold Amount (“Excluded Seller Liabilities”), and no Excluded Seller Liabilities shall be aggregated for purposes of determining whether the Basket Amount has been reached under Section 5.7(f). The limitation set forth on Exhibit A hereto, other than, subject to in this Section 7.1(a), 5.7(c) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (d) Seller shall not have any liability for Damages indemnification under clause (a) or (c) of Section 5.1 until the aggregate amount of all Buyer Indemnified Liabilities (excluding and without considering or taking into account Excluded Buyer Liabilities) incurred by Buyer which are subject to indemnification under clause (a) or suffered in connection with(c) of Section 5.1 exceeds Eight Hundred Thousand Dollars ($800,000) (the “Basket Amount”), arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for at which the parties agree that only the Investor who committed such breach ▇▇▇▇ ▇▇▇▇▇▇ shall be liable (and that such liability shall not be subject to the pro rata portion other limitations set forth in this Article V) be liable for all such Buyer Indemnified Liabilities in excess of Four Hundred Thousand Dollars ($400,000). The limitation set forth in this Section 5.7(d) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (e) Seller shall not have any liability for indemnification under clause (a) of Section 5.1 with respect to claims based upon a breach of Section 3.19 until the aggregate amount of all Buyer Indemnified Liabilities (excluding and without considering or taking into account Excluded Buyer Liabilities) incurred by Buyer with respect to breaches of representations and warranties contained in Section 3.19 exceeds One Hundred Thousand Dollars ($100,000), at which ▇▇▇▇ ▇▇▇▇▇▇ shall (subject to the other limits of this sentenceArticle V) be liable for all Buyer Indemnified Liabilities with respect to breaches of representations and warranties contained in Section 3.19 in excess of Fifty Thousand Dollars ($50,000). Notwithstanding The limitation set forth in this Section 5.7(e) shall not apply with respect to an indemnification claim based upon (i) a breach of a representation or warranty contained in any section other than Section 3.19 or (ii) intentional misrepresentation. (f) Buyer shall not have any liability for indemnification under clause (a) of Section 5.2 until the preceding sentenceaggregate amount of all Seller Indemnified Liabilities (excluding and without considering or taking into account Excluded Seller Liabilities) incurred by Seller which are subject to indemnification under clause (a) of Section 5.2 exceeds the Basket Amount, at which time Buyer shall (subject to the other limitations set forth in this Article V) be liable for all such Seller Indemnified Liabilities in excess of Four Hundred Thousand Dollars ($400,000). The limitation set forth in this Section 5.7(f) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (g) Seller shall not have any liability for indemnification under clause (a) or (c) of Section 5.1 once the aggregate amount of Buyer Indemnified Liabilities actually indemnified by Seller pursuant to clauses (a) and (c) of Section 5.1 exceeds Four Million Dollars ($4,000,000) (the “Cap Amount”). The limitation set forth in this Section 5.7(g) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (h) Buyer shall not have any liability for indemnification under clause (a) of Section 5.2 once the aggregate amount of Seller Indemnified Liabilities actually indemnified by Buyer pursuant to clause (a) of Section 5.2 exceeds the Cap Amount. The limitation set forth in this Section 5.7(h) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (i) To the extent that any matter set forth in Sections 5.1 or 5.2 is capable of remedy or cure, as a condition precedent to enforcing and collecting a claim for indemnification pursuant to Sections 5.1 or 5.2, the Indemnified Party will afford the Indemnifying Parties agree that any Damages that are based upon Party a reasonable opportunity (which will not be more than thirty (30) days) to remedy or arise out cure such matter and the Indemnified Party shall (at the Indemnifying Party’s cost) provide to the Indemnifying Party all reasonable assistance (including access to buildings, offices, records, files, properties and assets) in connection with the Indemnifying Party’s efforts to effect a remedy or cure. The effect of the extent of any such remedy or cure, including any partial remedy or cure, shall be taken into account and shall mitigate and reduce any indemnification claim with respect to the underlying alleged breach under Sections 5.1 or 5.2. (j) If the same claim for indemnification may be brought as a result of a breach of more than one representation or warranty contained in this Agreement, the indemnified party may choose the representation or warranty under which to pursue the indemnification claim, and the fact that such indemnification claim may be limited or barred if brought pursuant to a breach of one particular representation or warranty contained in this Agreement shall not impact or limit an indemnified party’s ability to bring the same claim for breach of another representation or warranty to which such limitation does not apply. In addition, the limitations set forth in this Section 5.7 do not limit the obligation of any party to indemnify the other party from and against any claim arising from any breach of a covenant, even if such breach also constitutes a breach of a representation or warranty. (k) Seller shall not have any liability for indemnification under this Article V as a result of any claim by a Buyer Indemnified Party that (i) asserts a breach of any representations or warranties whatsoever, either express or implied, at law or in equity, concerning the subject matter of this Agreement other than those representations and warranties specifically set forth in this Agreement; or (ii) is premised on or related to any reliance by Buyer on any information with respect to which Buyer has disclaimed reliance pursuant to Sections 4.8-4.9, unless such is also a breach of a representation or warranty specifically set forth herein. (l) Seller shall not have any liability for indemnification under this Article V (i) WITH RESPECT TO ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL DAMAGES CONSISTING OF BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF REVENUE OR LOST PROFITS (OR ANY MULTIPLE THEREOF), OR WITH RESPECT TO ANY PUNITIVE DAMAGES (EXCEPT WITH RESPECT TO CLAIMS (A) UNDER SECTION 5.1(E); (B) FOR BREACHES OF REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 3.3 OR SECTION 3.5; OR (C) FOR BREACHES OF SECTION 6.1, WITH RESPECT TO WHICH THIS CLAUSE (i) DOES NOT APPLY); (ii) for the amount of any Buyer Indemnified Liability in excess of the amount of such Buyer Indemnified Liability which would have been incurred but for (A) the failure of the Buyer Indemnified Party to take commercially reasonable actions to mitigate such Buyer Indemnified Liability upon becoming aware of such Buyer Indemnified Liability (including taking commercially reasonable steps to prevent any contingent Buyer Indemnified Liability from becoming an actual Buyer Indemnified Liability), or (B) the unlawful conduct of the Buyer Indemnified Party or breach by the Buyer Indemnified Party of any of the provisions of this Agreement; and (iii) duplicative claims in respect of a single set of facts or circumstances described under more than one representation or warranty in this Agreement whether such facts or circumstances would give rise to a breach of more than one representation or warranty in this Agreement, or for any Buyer Indemnified Liability to the extent a Purchase Price reduction was incurred as a result of Section 7.3(a)(i2.4. (m) Buyer shall not have any liability for indemnification under this Article V (i) WITH RESPECT TO ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL DAMAGES CONSISTING OF BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF REVENUE OR LOST PROFITS (OR ANY MULTIPLE THEREOF), OR WITH RESPECT TO ANY PUNITIVE DAMAGES; (ii) for the amount of any Seller Indemnified Liability in excess of the amount of such Seller Indemnified Liability which would have been incurred but for (A) the failure of the Seller Indemnified Party to take commercially reasonable actions to mitigate such Seller Indemnified Liability upon becoming aware of such Seller Indemnified Liability (including taking commercially reasonable steps to prevent any contingent Seller Indemnified Liability from becoming an actual Seller Indemnified Liability), or (B) the unlawful conduct of the Seller Indemnified Party or breach by the Seller Indemnified Party of any of the provisions of this Agreement; and (iii) duplicative claims in respect of a single set of facts or circumstances under more than one representation or warranty in this Agreement whether such facts or circumstances would give rise to a breach of more than one representation or warranty in this Agreement. (n) For purposes of calculating the amount of any Liabilities incurred in connection with any breach of any representation, warranty or covenant set forth in this Agreement (but not for purposes of determining whether such representation, warranty or covenant has been breached), any and all references to “material”, or “Material Adverse Effect” (or other correlative or similar terms or qualifiers) shall be paid, up to its portion disregarded. (o) Buyer shall not have any liability for indemnification under clause (c) of Section 5.2 once the Purchase Price, aggregate amount of Buyer Indemnified Liabilities actually indemnified by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid Seller pursuant to the preceding sentenceclause (c) of Section 5.2 exceeds Three Million Dollars ($3,000,000).

Limitations on Indemnity. 11.5.1. The Indemnified Parties agree not to seek recourse against, and shall not recover from, any Indemnifying Party under this Section 11 on account of any Loss resulting from a breach of any representation or warranty herein or in any certificate delivered pursuant hereto until the aggregate amount of all Losses suffered by the Indemnified Parties as a result of breaches of all representations or warranties herein (as adjusted pursuant to Section 11.4) exceeds One Hundred Thousand Dollars ($100,000) (the “Deductible”), in which case the Indemnifying Party shall be liable only for the aggregate amount of Losses suffered by the Indemnified Party in excess of the Deductible; provided, however, that (a) Subject the limitation of the Deductible shall not apply to the next sentenceLosses resulting from a breach of any representation or warranty contained in Section 5.2.1, but notwithstanding any other provision of this Agreement to the contrarySection 5.2.2, Section 5.4, the maximum first three sentences of Section 6.2, Section 6.5, or the first three sentences of Section 7.2; and (b) for purposes of determining Losses under this Section 11 resulting from any breach of any representation or warranty, such representations and warranties shall be interpreted to disregard all qualifications and conditions in such representations and warranties relating to materiality or Material Adverse Effect. 11.5.2. The aggregate liability of the Indemnifying Parties for under this Section 11 resulting from breaches of representations or arising out of Indemnity Claims warranties herein and in any certificates delivered pursuant hereto shall not exceed, and the Indemnified Parties shall not be entitled limited to be indemnified for Damages an amount equal to the extent the aggregate amount of such Damages exceed, 10% of the Purchase Price (the “Indemnification Cap”). Notwithstanding ; provided, however, that the foregoing sentence, limitation of the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) apply to Losses resulting from a breach of any representation or warranty contained in Section 5.2.1, Section 5.2.2, Section 5.4, the representations and warranties regarding Investors’ ownership first three sentences of Fund XISection 6.2, Fund XI’s ownership of Seller, Seller’s ownership of the InterestsSection 6.5, or the Waypoint Property Owners ownership first three sentences of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Cap7.2. (b) Notwithstanding any other provision of this Agreement to the contrary (except for Section 6.1), the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject to Section 7.1(a), with respect to liability for Damages incurred or suffered in connection with, arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for which the parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentence.

Limitations on Indemnity. (a) Subject to the next sentence, but notwithstanding Notwithstanding any other provision of this Agreement herein to the contrary, the maximum liability of Seller and Parent, in the Indemnifying Parties aggregate, to the Buyer Parties, in the aggregate, for or arising out breach of Indemnity Claims shall not exceedrepresentations and warranties pursuant to Section 8.2(a)(i) (other than with respect to the representations and warranties contained in Section 5.2(a) (Authorization), Section 5.10(a) (Title to Assets), Section 5.13 (Tax Matters), and the Indemnified Parties Section 5.17 (Brokerage and Transaction Bonuses)), shall not be entitled an amount equal to be indemnified for Damages to the extent the aggregate amount of such Damages exceed, 10% twenty-five percent (25%) of the Purchase Price (exclusive of the Assumed Liabilities) determined under Section 2.3(a) hereof (the “Indemnification Cap”). Notwithstanding Nothing in this Agreement (including this Section 8.2(d)) shall limit or restrict the foregoing sentence, right of the Indemnification Cap shall not limit the amount of Damages that the Indemnified Buyer Parties may to maintain or recover any amounts in connection with Indemnity Claims that are any action or claim based upon fraudulent misrepresentation or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) a breach of the representations and warranties regarding Investors’ ownership of Fund XI, Fund XI’s ownership of Seller, Seller’s ownership of the Interestsdeceit, or the Waypoint Property Owners ownership breach of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a))any covenant or agreement, or the Investors’indemnification Buyer Parties are entitled to pursuant to Sections 8.2(a)(ii), Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and and (iv) Obligations of Seller pursuant or Section 8.2(a)(i) (but only with respect to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches breach of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Cap. (b) Notwithstanding any other provision of this Agreement to the contrary (except for Section 6.1Sections 5.2(a), the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject to Section 7.1(a5.10(a), with respect to liability for Damages incurred or suffered in connection with, arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for 5.13 and 5.17) which the parties agree that only the Investor who committed such breach shall be liable (and that such liability Losses shall not be subject to the pro rata portion limitation Cap. Any party making a claim for indemnification under Section 8.2(a) or (b) must do so in writing in the manner specified for the giving of this sentence). Notwithstanding the preceding sentencenotices hereunder, and such notice must describe, with reasonable specificity, the Indemnifying Parties agree that any Damages that are based upon or arise out of claim, the circumstances described in Section 7.3(a)(i) shall be paidamount thereof (if known and quantifiable), up to its portion of and the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter basis for indemnification under such claims, paid pursuant to the preceding sentencethis Agreement.

Limitations on Indemnity. 11.5.1. The Indemnified Parties agree not to seek recourse against, and shall not recover from, any Indemnifying Party under this Section 11 on account of any Loss resulting from a breach of any representation or warranty herein or in any certificate delivered pursuant hereto until the aggregate amount of all Losses suffered by the Indemnified Parties as a result of breaches of all representations or warranties herein (as adjusted pursuant to Section 11.4) exceeds One Hundred Thousand Dollars ($100,000) (the “Deductible”), in which case the Indemnifying Party shall be liable only for the aggregate amount of Losses suffered by the Indemnified Party in excess of the Deductible; provided, however, that (a) Subject the limitation of the Deductible shall not apply to the next sentenceLosses resulting from a breach of any representation or warranty contained in Section 5.2.1, but notwithstanding any other provision of this Agreement to the contrarySection 5.2.2, Section 5.4, the maximum first three sentences of Section 6.2, Section 6.5, or the first three sentences of Section 7.2; and (b) for purposes of determining Losses under this Section 11 resulting from any breach of any representation or warranty, such representations and warranties shall be interpreted to disregard all qualifications and conditions in such representations and warranties relating to materiality or Material Adverse Effect. 11.5.2. The aggregate liability of the Indemnifying Parties for under this Section 11 resulting from breaches of representations or arising out of Indemnity Claims warranties herein and in any certificates delivered pursuant hereto shall not exceed, and the Indemnified Parties shall not be entitled limited to be indemnified for Damages an amount equal to the extent the aggregate amount of such Damages exceed, 10% forty percent (40%) of the Purchase Price (the “Indemnification Cap”). Notwithstanding ; provided, however, that the foregoing sentence, limitation of the Indemnification Cap shall not limit the amount of Damages that the Indemnified Parties may recover in connection with Indemnity Claims that are based upon or arise out of; (i) the fraud or willful misconduct of the Indemnifying Parties; (ii) apply to Losses resulting from a breach of any representation or warranty contained in Section 5.2.1, Section 5.2.2, Section 5.4, the representations and warranties regarding Investors’ ownership first three sentences of Fund XISection 6.2, Fund XI’s ownership of Seller, Seller’s ownership of the InterestsSection 6.5, or the Waypoint Property Owners ownership first three sentences of each Property (including without limitation as contained in Sections 5.1(b), 5.2(b), 5.2(h), 5.2(j) and 5.3(a)), or the Investors’, Fund XI’s or Seller’s authority to consummate the transactions contemplated by this Agreement; (iii) Third Party Claims to the extent of available insurance proceeds; and (iv) Obligations of Seller pursuant to Section 6.1 (including without limitation Section 6.1(b)) and for any breaches of representations and warranties set forth in Section 5.2(d). Furthermore, Damages recovered by the Indemnified Parties in connection with or arising out of the circumstances described in the foregoing (i) through (iv) shall not be counted in determining the amount of Damages that will be subject to the Indemnification Cap7.2. (b) Notwithstanding any other provision of this Agreement to the contrary (except for Section 6.1), the Indemnifying Parties shall not be responsible for, and the Indemnified Parties shall not be entitled to be indemnified for Damages for, any Indemnity Claim until the aggregate Damages under such Indemnity Claim and other Indemnity Claims exceeds $1,250,000 (the “Aggregate Indemnity Threshold”). For the avoidance of doubt, at the point at which the Damages under any single Indemnity Claim or collection of Indemnity Claims exceeds the Aggregate Indemnity Threshold, the Indemnified Parties shall be entitled to be indemnified for all Indemnity Claims regardless of whether the Damages under any single Indemnity Claim is equal to or less than the Aggregate Indemnity Threshold. (c) Under no circumstance shall an Investor’s liability for Damages under any Indemnity Claim exceed such Investor’s pro rata portion of such Damages, based on the percentages set forth on Exhibit A hereto, other than, subject to Section 7.1(a), with respect to liability for Damages incurred or suffered in connection with, arising out of, resulting from or relating or incident to any breach under this Agreement by such Investor, for which the parties agree that only the Investor who committed such breach shall be liable (and that such liability shall not be subject to the pro rata portion limitation of this sentence). Notwithstanding the preceding sentence, the Indemnifying Parties agree that any Damages that are based upon or arise out of the circumstances described in Section 7.3(a)(i) shall be paid, up to its portion of the Purchase Price, by Waypoint Real Estate Group, LLC, with any Damages remaining thereafter under such claims, paid pursuant to the preceding sentence.