Common use of Limitations on Seller’s Liability Clause in Contracts

Limitations on Seller’s Liability. (i) All representations and warranties of Buyer made in this Agreement and all representations and warranties of Seller set forth in this Agreement shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s representations and warranties contained in this Agreement or in any of the “Purchase Documents” (as hereinafter defined) shall survive the Closing for a period of nine (9) months after the Closing Date (the “Survival Period”), subject to the provisions of this Paragraph 9(c). Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller or any Respective Seller with respect to the alleged breach by or on the part of Seller or a Respective Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) shall (A) be deemed waived unless Buyer has both delivered to the Respective Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the “Recourse Notice”) and filed suit with respect thereto after the Closing Date but prior to the expiration of the Survival Period, and (B) be limited to an amount not to exceed an amount equal to [REDACTED] of the Purchase Price (the “Cap”) in the aggregate for all recourse of Buyer under the Purchase Documents. For the avoidance of doubt, the Cap shall apply to any and all claims Buyer may have against any and all Respective Sellers, such that in no event shall Seller be liable to Buyer in the aggregate in excess of the Cap. Seller shall have no liability to Buyer for a breach or default of any of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than [REDACTED], in which event the full amount of such, valid claims shall be actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given, or for which such specific suit has not been commenced on or before the expiration of the Survival Period, shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three (3) business days after receipt of a Material and Adverse Change Notice (the Closing Date being hereby extended for such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to Seller either to (1) terminate this Agreement, in which case the provisions of Paragraph 3(f) shall apply, or (2) accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Buyer’s failure to give timely written notice of such election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Notwithstanding the foregoing, in the event the information contained in the Material and Adverse Change Notice arose or resulted from, in whole or in part, activities by Buyer or any of Buyer Representatives upon any Property, Buyer shall not have the right to right to terminate this Agreement (nor any other right or remedy on account thereof) and Buyer’s indemnification contained in Paragraph 4(b), above, shall apply.

Limitations on Seller’s Liability. Sellers will have no liability (ifor indemnification or otherwise) All representations and warranties of Buyer made in this Agreement and all representations and warranties of Seller set forth in this Agreement shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s representations and warranties contained in this Agreement or in any of the “Purchase Documents” (as hereinafter defined) shall survive the Closing for a period of nine (9) months after the Closing Date (the “Survival Period”), subject to the provisions of this Paragraph 9(c). Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller or any Respective Seller with respect to the alleged matters described in clause (a), clause (b) and clause (c) of Section 7.2 until the total of all Damages with respect to such matters exceeds $50,000, and then only for the amount by which such Damages exceed $ 50,000. However, first sentence of this Section 7.5 will not apply to any intentional Breach by Sellers or the Company of any covenant or obligation or to the breach by of Section 3.3, whether intentional or on the part not. The liability of each of Seller or a Respective Seller of any representationpursuant to Section 7.2, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) shall (A) be deemed waived unless Buyer has both delivered to the Respective Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the “Recourse Notice”) and filed suit with respect thereto after the Closing Date but prior to the expiration of the Survival Period, and (B) be limited to an amount not to exceed an amount equal to [REDACTED] ten percent (10%) of the Purchase Price (the “Cap”) in the aggregate for all recourse of Buyer under the Purchase Documents. For the avoidance of doubt, the Cap shall apply to any and all claims Buyer may have against any and all Respective Sellers, such that in no event shall Seller be liable to Buyer in the aggregate in excess value of the Cap. Buyer’s Shares (based on the Vemics Stock Price) received by such Seller shall have no liability to Buyer for a breach or default of any of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than [REDACTED], in which event the full amount of such, valid claims shall be actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given, or for which such specific suit has not been commenced on or before the expiration of the Survival Period, shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three (3) business days after receipt of a Material and Adverse Change Notice (the Closing Date being hereby extended for such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to Seller either to (1) terminate under this Agreement, in which case provided, however; that any liability arising out of fraud of any Seller shall be limited to the provisions aggregate value of Paragraph 3(f) shall apply, or (2) accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Buyer’s failure to give timely written notice of Shares (based on the Vemics Stock Price) received by such election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereofunder this Agreement. Notwithstanding the foregoingFurther, in the event of a breach by a Seller of a representation or warranty of such Seller set forth in Sections 3.2(a), 3.3(b), 3.l5(b)(i) and/or 3.24 (a “Seller Breach”), only the information contained in Seller responsible for such Seller Breach shall be liable for any Damages sustained or incurred as a result of such Seller Breach and the Material Buyer, on behalf of itself; its affiliates, Related Persons and Adverse Change Notice arose all Buyer Indemnified Persons, covenants and agrees not to seek any Damages or resulted from, in whole personal money judgment against any Seller other than the Seller responsible for such Seller Breach for Damages sustained or incurred by any Buyer Indemnified Party arising out of or in partconnection with such Seller Breach. In addition, activities Buyer’s recourse against any Seller for Damages shall be limited to the Buyer’s Shares received by Buyer or such Seller hereunder or, with respect to any of Buyer Representatives upon any Property, Buyer shall not have the right to right to terminate this Agreement (nor any other right or remedy on account thereof) and Buyer’s indemnification contained in Paragraph 4(b)Shares that are subsequently sold, aboveexchanged or otherwise disposed of by such Seller, shall applythe proceeds from such sale, exchange or other disposition.

Limitations on Seller’s Liability. Sellers shall have no liability with respect to claims under Article 10.2(a) (i) All representations or (ii) or 10.2 (b) (i) or (ii) until the total of all Damages with respect to such matters exceed, in the aggregate, USD [***] (in words: [***] US dollars) (and, for purposes of determining whether such threshold has been reached, only claims that exceed, individually, USD [***] (in words: [***] US dollars) shall be taken into account), in which event the Purchaser may assert its right to indemnification to the extent such Damages exceed USD [***] provided that, for the purpose of determining whether the USD [***] and warranties of Buyer made USD [***] thresholds have been reached, no effect shall be given to any Material Adverse Effect, materiality or similar qualifier in this Agreement and all representations and warranties of Seller any representation or warranty; however, neither the USD [***] threshold nor the USD [***] threshold shall apply to claims under the Warranty set forth in this Agreement Article 1.J (“Taxation”) of Schedule 11. The maximum aggregate amount that Sellers shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoingliable for under (i) Article 9.3, Seller’s representations and warranties contained in this Agreement or in any of the “Purchase Documents” (as hereinafter definedii) shall survive the Closing for a period of nine (9) months after the Closing Date (the “Survival Period”), subject to the provisions of this Paragraph 9(c). Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller or any Respective Seller Damages arising with respect to claims under the alleged breach Warranties, whether payable by Seller 1 or on the part of Seller 2 or a Respective partly by Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) shall (A) be deemed waived unless Buyer has both delivered to the Respective 1 and partly by Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the “Recourse Notice”) and filed suit with respect thereto after the Closing Date but prior to the expiration of the Survival Period, 2 and (Biii) all payments to be limited to an amount made by Sellers under Article 10.6 only in as far as such payments exceed USD [***]([***] US dollars), shall not to exceed an amount equal to [REDACTED] ***]% of the Purchase Price (the “Cap”Price. The limitations on liability set forth in this Article 10.5(b) in the aggregate for all recourse of Buyer under the Purchase Documents. For the avoidance of doubt, the Cap shall not apply to any and all claims Buyer may have against any and all Respective Sellersmatters arising in respect of Articles 1.B (“Shares”), such that in no event shall Seller be liable to Buyer in the aggregate in excess of the Cap. Seller shall have no liability to Buyer for a breach or default of any of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than [REDACTED]2.A (“Organization; Authority”), in which event the full amount of such2.D (“Class A Shares”), valid claims shall be actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given, or for which such specific suit has not been commenced on or before the expiration of the Survival Period, shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer 3.A (a “Material and Adverse Change NoticeOrganization; Authority”) and Seller’s Undertakings shall be deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three 3.D (3“Class B Shares”) business days after receipt of a Material and Adverse Change Notice (the Closing Date being hereby extended for such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to Seller either to (1) terminate this Agreement, in which case the provisions of Paragraph 3(f) shall apply, or (2) accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Buyer’s failure to give timely written notice of such election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Notwithstanding the foregoing, in the event the information contained in the Material and Adverse Change Notice arose or resulted from, in whole or in part, activities by Buyer Schedule 11 or any Breaches of Buyer Representatives upon the Warranties that result from or are attributable to intentional fraud (‘bedrog’) or any Property, Buyer shall not have willful (‘opzettelijk’) misconduct by the right to right to terminate Company or either Seller (for which the potential liability under this Agreement (nor any other right or remedy on account thereof) Article 10 is absolute from the first dollar and Buyer’s indemnification contained in Paragraph 4(bunlimited), above, shall apply.

Limitations on Seller’s Liability. Except as provided in Section 22.1.2 below, Seller’s total liability for claims by Buyer arising out of or relating to the performance or non-performance of Seller’s obligations under this Agreement shall in no event exceed: (i) All representations and warranties of Buyer made in this Agreement and all representations and warranties of Seller set forth in this Agreement shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s representations and warranties contained in this Agreement or in any of the “Purchase Documents” one hundred percent (as hereinafter defined100%) shall survive the Closing for a period of nine (9) months after the Closing Date (the “Survival Period”), subject to the provisions of this Paragraph 9(c). Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller or any Respective Seller with respect to the alleged breach by or on the part of Seller or a Respective Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) shall (A) be deemed waived unless Buyer has both delivered to the Respective Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the “Recourse Notice”) and filed suit with respect thereto after the Closing Date but prior to the expiration of the Survival Period, and (B) be limited to an amount not to exceed an amount equal to [REDACTED] of the Purchase Price (as the “Cap”same may be adjusted from time to time) in for any damages awarded pursuant to a claim asserted at any time from the aggregate Effective Date through the date Substantial Completion is achieved; (ii) thirty-three percent (33%) of the Purchase Price (as the same may be adjusted from time to time) for all recourse any damages awarded pursuant to a claim asserted at any time after Substantial Completion is achieved through the second (2nd) anniversary of the date Substantial Completion is achieved; or (iii) ten percent (10%) of the Purchase Price (as the same may be adjusted from time to time) for any damages awarded pursuant to a claim asserted at any time after the second (2nd) anniversary of the date Substantial Completion is achieved. The Seller's total limit of liability with respect to any claim shall not apply, whatsoever: To any (i) amounts paid by Seller to or on behalf of Buyer or Buyer Indemnitee arising out of the willful misconduct, gross negligence or fraud of Seller, any Contractor or any Person for whom at law or under this Agreement Seller is responsible; (ii) Seller’s indemnification obligations hereunder to the Purchase Documentsextent occurring with respect to third parties, including any intellectual property claims and any claims by Governmental Authorities; or (iii) any Governmental Authority imposes fines, penalties or other enforcement fees, except to the extent that any such fine, penalty, or other enforcement fee arises solely from the tortious or criminal conduct or contractual breach of Buyer; To any Delay LDs in Section 7.7 and any hold back amounts for Delayed SPGs in Section 9.3.4. For the avoidance of doubt, the Cap shall apply With respect to any and all claims Buyer may have against claim for which Seller, including any and all Respective SellersContractor or other Person for which Seller is responsible under this Agreement, that is either covered by Seller's insurance or bonds or required by this Agreement to be covered by Seller's Insurance or Bonds. In such that in no event shall Seller case, Seller's total limit of liability for the claim covered by Seller's insurance or bonds or required by this Agreement to be liable to Buyer in the aggregate in excess of the Cap. Seller shall have no liability to Buyer for a breach covered by Insurance or default of any of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than [REDACTED], in which event the full amount of such, valid claims Bonds shall be actionable. Any the greater of (i) the limits of liability for the applicable Insurance policy(ies) or Bonds; (ii) the limits of liability for the applicable insurance policy(ies) or bonds carried by Seller’s Undertakings for which a Recourse Notice has not been given, ; or for which such specific suit has not been commenced (iii) the cap or no cap on or before the expiration of the Survival Period, shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three (3) business days after receipt this ARTICLE XXII depending on the basis of a Material and Adverse Change Notice (the Closing Date being hereby extended for such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account liability It is the intent of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to Seller either to (1) terminate this Agreement, in which case the provisions Parties that the limitation of Paragraph 3(f) shall apply, or (2) accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Buyer’s failure to give timely written notice of such election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Notwithstanding the foregoing, in the event the information contained in the Material and Adverse Change Notice arose or resulted from, in whole or in part, activities by Buyer or any of Buyer Representatives upon any Property, Buyer liability hereunder shall not have relieve the right to right to terminate this Agreement (nor insurers’ and surety's' obligations for any other right insured or remedy on account thereof) and Buyer’s indemnification contained in Paragraph 4(b), above, shall applybonded risks.

Limitations on Seller’s Liability. No indemnification payments will be made by or on behalf of the Seller: (iiv) All representations pursuant to Section 8.1(a) (other than in respect of Seller’s Fundamental Representations and warranties Warranties), in respect of Buyer made any individual claim or series claims having the same nature or origin where the Losses relating thereto are less than $5,000, and such items less than $5,000 will not be aggregated for purposes of calculating the Deductible or Revised Deductible, as applicable, in clause (ii) below; (v) pursuant to Section 8.1(a) (other than in respect of Seller’s Fundamental Representations and Warranties), until the aggregate amount of Losses for which the Seller would (but for this Agreement clause (ii)) be liable thereunder exceeds $600,000 (the “Deductible”), and all representations then only to the extent of such excess over such Deductible; provided that, in the event of the occurrence of an Abandonment Date, the Deductible shall be reduced to $510,000 (the “Revised Deductible”) and, to the extent a Purchaser Indemnified Party would have been entitled to an indemnification payment pursuant to this Article 8 had the Revised Deductible then been in effect, the Purchaser Indemnified Party will be entitled to an indemnification payment after applying such Revised Deductible to such indemnification obligation; (vi) pursuant to Section 8.1(a) (other than in respect of Seller’s Fundamental Representations and warranties Warranties), in excess of Seller the Cap then in effect; and (vii) in excess of the Purchase Price. The limitations on liability set forth in this Agreement shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s representations and warranties contained in this Agreement or in any of the “Purchase Documents” (as hereinafter definedSection 8.5(a) shall survive the Closing for a period of nine (9) months after the Closing Date (the “Survival Period”), subject to the provisions of this Paragraph 9(c). Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller or any Respective Seller not apply with respect to Losses resulting from fraud with respect to any breach of any representation or warranty contained in Article 3 or in the alleged breach certificates delivered pursuant to Sections 2.10(a)(xi) or Section 2.11(a)(iv). (f) Limitation on Purchaser’s Liability. No indemnification payments will be made by or on behalf of the part Purchaser: (i) pursuant to Section 8.2(a) (other than in respect of Seller or a Respective Seller Purchaser’s Fundamental Representations and Warranties), in respect of any representationindividual claim or series claims having the same nature or origin where the Losses relating thereto are less than $5,000, warrantyand such items less than 71 $5,000 will not be aggregated for purposes of calculating the Deductible or Revised Deductible, covenantas applicable, undertakingin clause (ii) below; (ii) pursuant to Section 8.2(a) (other than in respect of Purchaser’s Fundamental Representations and Warranties), indemnity or agreement contained in any until the aggregate amount of Losses for which the Purchase Documents Purchaser would (collectively, “Seller’s Undertakings”) shall but for this clause (Aii)) be deemed waived unless Buyer has both delivered liable thereunder exceeds the Deductible, and then only to the Respective Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (extent of such excess over such Deductible; provided that, in the “Recourse Notice”) and filed suit with respect thereto after the Closing Date but prior event of an occurrence of an Abandonment Date, to the expiration of the Survival Period, and (B) be limited extent a Seller Indemnified Party would have been entitled to an amount not indemnification payment pursuant to exceed an amount equal to [REDACTED] of this Article 8 had the Purchase Price (the “Cap”) Revised Deductible then been in the aggregate for all recourse of Buyer under the Purchase Documents. For the avoidance of doubteffect, the Cap shall apply Seller Indemnified Party will be entitled to any an indemnification payment after applying such Revised Deductible to such indemnification obligation; (iii) pursuant to Section 8.2(a) (other than in respect of Purchaser’s Fundamental Representations and all claims Buyer may have against any and all Respective SellersWarranties), such that in no event shall Seller be liable to Buyer in the aggregate in excess of the Cap. Seller shall have no liability to Buyer for a breach or default of any of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than [REDACTED], Cap then in which event the full amount of such, valid claims shall be actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given, or for which such specific suit has not been commenced on or before the expiration effect; (iv) in excess of the Survival Period, shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or Purchase Price. The limitations on liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three (3this Section 8.5(b) business days after receipt shall not apply with respect to Losses resulting from fraud with respect to any breach of a Material and Adverse Change Notice (the Closing Date being hereby extended for such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law any representation or warranty contained in Article 4 or in equity on account of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice the certificates delivered pursuant to Seller either to Sections 2.10(b)(xi) or Section 2.11(b)(v). (1) terminate this Agreement, in which case the provisions of Paragraph 3(f) shall apply, or (2) accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Buyer’s failure to give timely written notice of such election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Notwithstanding the foregoing, in the event the information contained in the Material and Adverse Change Notice arose or resulted from, in whole or in part, activities by Buyer or any of Buyer Representatives upon any Property, Buyer shall not have the right to right to terminate this Agreement (nor any other right or remedy on account thereof) and Buyer’s indemnification contained in Paragraph 4(bg), above, shall apply.

Limitations on Seller’s Liability. (i) All representations and warranties of Buyer made in this Agreement and all the representations and warranties of Seller set forth in this Agreement shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s and Buyer’s representations and warranties contained in this Agreement or in any of the “Purchase Documents” (as hereinafter defined) shall survive the Closing for a period of nine six (96) months after the Closing Date (the “Survival Period”), ) subject to the provisions of this Paragraph 9(c). Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller or any Respective Seller with respect to the alleged breach by or on the part of Seller or a Respective Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) shall (A) be deemed waived unless Buyer has both delivered to the Respective Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the “Recourse Notice”) and filed suit with respect thereto after the Closing Date but prior to the expiration of the Survival Period, and (B) be limited to an amount not to exceed an amount equal to [REDACTED] of the Purchase Price Five Million Dollars (the “Cap”$5,000,000) in the aggregate for all recourse of Buyer under the Purchase Documents. For the avoidance of doubt, the Cap shall apply to any and all claims Buyer may have against any and all Respective Sellers, such that in no event shall Seller be liable to Buyer in the aggregate in excess of the Cap. Seller shall have no liability to Buyer for a breach or default of any of Seller’s Undertakings unless the valid timely noticed and filed claims for all such breaches and defaults collectively aggregate more than [REDACTED]One Hundred Thousand Dollars ($100,000), in which event the full amount of such, valid such timely noticed and filed claims shall be actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given, or for which such specific suit has not been commenced on or before the expiration of the Survival PeriodPeriod shall terminate and cease to be of any force or effect, and neither party shall have any right, remedy, obligation or liability thereunder. Any such representation or warranty for which such specific written notice has not been given, or for which such specific suit has not been commenced, on or before the Survival Period after the Closing Date shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three (3) business days after receipt of a Material and Adverse Change Notice (the Closing Date being hereby extended for such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to Seller either to (1) terminate this Agreement, in which case the provisions of Paragraph 3(f3(e) shall apply; provided, that, in the event Seller’s intentional misrepresentations caused the Material and Adverse Change Notice, Buyer shall have the right to terminate this Agreement by written notice to Seller, in which event the provisions of Paragraph 3(e) shall apply and Buyer shall have the rights and remedies set forth in Paragraph 10(b) of this Agreement, or (2) accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Buyer’s failure to give timely written notice of such election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right or remedy on account thereof. Notwithstanding the foregoing, in the event the information contained in the Material and Adverse Change Notice arose or resulted from, in whole or in part, activities by Buyer or (excluding Buyer’s mere discovery of existing conditions at the Property, unless exacerbated by Buyer), any of Buyer Representatives or any of Buyer’s agents, employees or contractors upon any the Property, Buyer shall not have the right to right to terminate this Agreement (nor any other right or remedy on account thereof) and Buyer’s indemnification contained in Paragraph 4(b), above, shall apply.