Common use of Post Closing Claims Clause in Contracts

Post Closing Claims. If (i) within 180 days of the Closing Date, Buyer alleges, in good faith with a good faith belief there is just cause, that Seller has breached any of its representations, warranties, or covenants set out in Section 7 of the Purchase Agreement that are to survive Closing (the “Post Closing Claim”); (ii) it is finally determined that Seller breached such representations, warranties, or covenants; and (iii) the actual damages incurred by Buyer, once finally determined, for such breaches, when combined with the damages incurred by Buyer for all other breaches of such representations, warranties, or covenants, as determined by a court of competent jurisdiction, are in excess of $10,000.00, then Buyer is entitled to a disbursement of the Escrow Funds for the amount of damages caused by Seller’s breach; provided, however, the aggregate amount the Buyer shall be entitled to recover will not exceed the balance in the Escrow Account. At the end of 180 days after the Closing Date, the funds in the Escrow Account (including all earnings and interest) shall be disbursed to Seller; provided, however, if a Post Closing Claim has been made and is not finally determined at the end of the 180 day period, the portion of the Escrow Funds alleged by Buyer to be necessary to satisfy any such Post Closing Claim shall not be disbursed until the Post Closing Claim is finally resolved or determined by a court of competent jurisdiction or by mutual agreement of the parties. Buyer shall timely submit any Post Closing Claim to Seller, in writing, setting forth, in detail, the specific representations, warranties and/or covenants that have allegedly been breached and the factual basis for the alleged breach, and the amount of damages allegedly incurred by Buyer (the “Claim Notice”). Buyer shall simultaneously provide a copy of such Claim Notice to Escrow Holder. The phrase “finally determined” means the sooner to occur of a final decision made by a court of competent jurisdiction, settlement between Seller and Buyer, or a binding decision reached through an alternative dispute resolution procedure approved by Seller and Buyer.

Post Closing Claims. If (i) within 180 Seller’s covenants, indemnities, warranties and representations contained in this Agreement and in any document executed by Seller pursuant to this Agreement shall survive the Closing or the termination of this Agreement, as set forth in this Agreement for a period commencing on the Closing Date and ending 270 days of following the Closing Date, Buyer alleges, in good faith with a good faith belief there is just cause, that Seller has breached any of its representations, warranties, or covenants set out in Section 7 of the Purchase Agreement that are to survive Closing (the “Post Closing Claim”); (ii) it is finally determined that Seller breached such representations, warranties, or covenants; and (iii) the actual damages incurred by Buyer, once finally determined, for such breaches, when combined with the damages incurred by Buyer for all other breaches of such representations, warranties, or covenants, as determined by a court of competent jurisdiction, are in excess of $10,000.00, then Buyer is entitled to a disbursement of the Escrow Funds for the amount of damages caused by Seller’s breach; provided, however, the aggregate amount representations and warranties of Seller set forth in Section 12(a)(i), Section 12(a)(ii), Section 12(a)(xvi) and Section 12(a)(xx) shall survive the Buyer Closing Date until the expiration of the applicable statute of limitations (in each case, the “Limitation Period”). Purchaser shall provide written notice to Seller prior to the expiration of the applicable Limitation Period of any alleged breach of such covenants, indemnities, warranties or representations and shall allow Seller thirty (30) days within which to cure such breach, or, if such breach cannot reasonably be cured within thirty (30) days, an additional reasonable time period, so long as such cure has been commenced within such thirty (30) days and diligently pursued. If Seller fails to cure such breach after written notice and within such cure period, Purchaser’s sole remedy shall be entitled to recover will not exceed an action at law for damages as a consequence thereof, which must be commenced, if at all, within the balance in the Escrow Account. At the end of 180 days after the Closing Date, the funds in the Escrow Account (including all earnings and interest) shall be disbursed to Sellerapplicable Limitation Period; provided, however, that if within the applicable Limitation Period Purchaser gives Seller written notice of such a Post Closing Claim has been made breach and is not finally determined Seller notifies Purchaser of Seller’s commencement of a cure, commences to cure and thereafter terminates such cure effort, Purchaser shall have an additional 30 days from the date of termination of such cure effort within which to commence an action at the end law for damages as a consequence of Seller’s failure to cure. The Limitation Period referred to herein shall apply to known as well as unknown breaches of such covenants, indemnities, warranties or representations. Purchaser’s waiver and release set forth in Section 5(c) shall apply fully to Losses under such representations and warranties. Purchaser specifically acknowledges that such termination of liability as of the 180 day period, the portion close of the Escrow Funds alleged by Buyer to be necessary to satisfy any such Post Closing Claim shall not be disbursed until the Post Closing Claim is finally resolved or determined by Limitation Period represents a court of competent jurisdiction or by mutual agreement material element of the parties. Buyer shall timely submit any Post Closing Claim consideration to Seller, in writing, setting forth, in detail, the specific representations, warranties and/or covenants that have allegedly been breached and the factual basis for the alleged breach, and the amount of damages allegedly incurred by Buyer (the “Claim Notice”). Buyer shall simultaneously provide a copy of such Claim Notice to Escrow Holder. The phrase “finally determined” means the sooner to occur of a final decision made by a court of competent jurisdiction, settlement between Seller and Buyer, or a binding decision reached through an alternative dispute resolution procedure approved by Seller and Buyer.

Post Closing Claims. If (i) within 180 270 days of the Closing Date, Buyer alleges, in good faith with a good faith belief there is just cause, that Seller has breached any of its representations, warranties, or covenants set out in Section 7 of the Purchase Agreement that are to survive Closing (the “Post Closing Claim”); (ii) it is finally determined that Seller breached such representations, warranties, or covenants; and (iii) the actual damages incurred by Buyer, once finally determined, for such breaches, when combined with the damages incurred by Buyer for all other breaches of such representations, warranties, or covenants, as determined by a court of competent jurisdiction, are in excess of $10,000.00, then Buyer is entitled to a disbursement of the Escrow Funds for the amount of damages caused by Seller’s breach; provided, however, the aggregate amount the Buyer shall be entitled to recover will not exceed the balance in the Escrow Account. At the end of 180 270 days after the Closing Date, the funds in the Escrow Account (including all earnings and interest) shall be disbursed to SellerGuarantor; provided, however, if a Post Closing Claim has been made and is not finally determined at the end of the 180 270 day period, the portion of the Escrow Funds alleged by Buyer to be necessary to satisfy any such Post Closing Claim shall not be disbursed until the Post Closing Claim is finally resolved or determined by a court of competent jurisdiction or by mutual agreement of the parties. Buyer shall timely submit any Post Closing Claim to SellerGuarantor, in writing, setting forth, in detail, the specific representations, warranties and/or covenants that have allegedly been breached and the factual basis for the alleged breach, and the amount of damages allegedly incurred by Buyer (the “Claim Notice”). Buyer shall simultaneously provide a copy of such Claim Notice to Escrow Holder. The phrase “finally determined” means the sooner to occur of a final decision made by a court of competent jurisdiction, settlement between Seller Guarantor and Buyer, or a binding decision reached through an alternative dispute resolution procedure approved by Seller Guarantor and Buyer.

Post Closing Claims. If Except as set forth in the second sentence of this Section 8.6(c), after the Closing, the sole and exclusive remedy for any and all claims, Losses or other matters arising under, out of, or related to this Agreement or the transactions contemplated hereby (iexcept for claims of breach of this Agreement which were waived prior to the Closing pursuant to Section 8.6(b), as to which no remedies shall exist) shall be the rights of indemnification set forth in this Article VIII only (and in the case of indemnification sought pursuant to Sections 2.7(a)(xiv), 2.9 and 6.8, the rights of indemnification set forth therein) and no Person will have any other entitlement, remedy or recourse, whether in contract, tort, strict liability, equitable remedy or otherwise, it being agreed that all of such other remedies, entitlements and recourse are expressly waived and released by the Parties to the fullest extent pe1mitted by Law. Notwithstanding the foregoing, after the Closing, the immediately preceding sentence will not operate to interfere with or impede a Party's right to seek equitable remedies (including specific performance (which must be commenced within 180 forty-five (45) days after the latest to occur of such breach of the Specified Covenants or the date Closing Datewas scheduled to occur absent such breach of the Specified Covenants) or injunctive relief) for a breach or threatened breach of the Specified Covenants, Buyer allegesand the Parties expressly acknowledge that any breach or threatened breach of any such Specified Covenant by the other Party or Parties shall result in irreparable and continuing damage to the non-breaching Party or Parties for which no adequate remedy at law will exist and that, in good faith with a good faith belief there is just cause, that Seller has breached the event of any breach of its representations, warranties, or covenants set out in Section 7 of the Purchase Agreement that are to survive Closing (the “Post Closing Claim”); (ii) it is finally determined that Seller breached any such representations, warranties, or covenants; and (iii) the actual damages incurred by Buyer, once finally determined, for such breaches, when combined with the damages incurred by Buyer for all other breaches of such representations, warranties, or covenants, as determined by a court of competent jurisdiction, are in excess of $10,000.00, then Buyer is entitled to a disbursement of the Escrow Funds for the amount of damages caused by Seller’s breach; provided, howevercovenant, the aggregate amount the Buyer non-breaching Party or Parties shall be entitled to recover will not exceed the balance in the Escrow Account. At the end of 180 injunctive relief, including specific performance (which must be commenced within forty-five (45) days after the Closing Date, the funds in the Escrow Account (including all earnings and interest) shall be disbursed latest to Seller; provided, however, if a Post Closing Claim has been made and is not finally determined at the end occur of such breach of the 180 day period, Specified Covenants or the portion date Closing was scheduled to occur absent such breach of the Escrow Funds alleged by Buyer Specified Covenants), and to such further and other relief as may be necessary and proper to satisfy any such Post Closing Claim shall not be disbursed until ensure compliance by the Post Closing Claim is finally resolved breaching Party or determined by a court of competent jurisdiction or by mutual agreement of the parties. Buyer shall timely submit any Post Closing Claim to Seller, in writing, setting forth, in detail, the specific representations, warranties and/or covenants that have allegedly been breached and the factual basis for the alleged breachParties with this Agreement, and the amount Parties consent to the entry of damages allegedly incurred by Buyer such relief, without necessity of posting bond or other security (the “Claim Notice”any requirements therefor being expressly waived). Buyer shall simultaneously provide a copy The Parties acknowledge that the provisions of such Claim Notice this Section 8.6(c) are reasonably necessary and commensurate with the need to Escrow Holder. The phrase “finally determined” means protect the sooner Parties against irreparable harm and to occur of a final decision made by a court of competent jurisdiction, settlement between Seller and Buyer, or a binding decision reached through an alternative dispute resolution procedure approved by Seller and Buyerprotect their legitimate business interests.