Common use of Post-Closing Liability Clause in Contracts

Post-Closing Liability. If any party breaches any of its covenants, obligations, representations or warranties set forth in this Agreement, the non-defaulting party shall be entitled to recover from such defaulting party any actual damages (excluding any special, speculative and/or consequential damages), suffered or incurred by such non-defaulting party as a result of such breach. Notwithstanding anything to the contrary contained in this Agreement, (i) the Sellers shall not have any liability to the Purchaser pursuant to the terms of this Section 9.4 for breaches of representations, warranties and pre-Closing covenants and obligations set forth in this Agreement until the damages suffered or incurred by the Purchaser exceeds in the aggregate an amount equal to One Million Dollars ($1,000,000) (the “Basket”), in which case Purchaser shall have the right to recover all damages incurred as a result of valid claims under this Section 9.4, including amounts less than the Basket, and (ii) the Sellers’ maximum liability to the Purchaser shall not exceed Fifteen Million Dollars ($15,000,000) (the “Cap Amount”). The Cap Amount shall be allocated among the Sellers in proportion to their applicable percentage interest in the Purchase Price so that if a particular Seller were to receive twenty percent (20%) of the total Purchase Price for the Properties the Cap Amount applicable to such Seller for its breaches and/or defaults shall be twenty percent (20%) of the total Cap Amount. Any action suit or proceeding brought by the Purchaser against the Sellers under this Agreement shall be commenced and served, if at all, on or before the expiration of the Survival Period and, if not commenced and served on or before the expiration of the Survival Period, thereafter shall be void and of no force or effect. The Sellers acknowledge and agree that the resolution of such action, suit, or proceeding may not occur until after the expiration of the Survival Period and the Survival Period shall be deemed to be tolled with respect to (and only with respect to) any alleged breach or failure of a representation or warranty or covenant provided the Purchaser files an action, suit or proceeding with respect thereto prior to the expiration of the Survival Period. The provisions of this Section 9.4 shall not apply to the costs or prorations governed by the provisions of Section 7.4 or to the commissions governed by the provisions of Section 8. Any payments made to any party pursuant to this section 9.4 shall constitute an adjustment of the Purchase Price for tax purposes and shall be treated as such by Purchaser and Sellers on their tax returns to the extent permitted by law.

Post-Closing Liability. If any party breaches any of its covenants, obligations, The representations or warranties set forth in this Agreement, the non-defaulting party shall be entitled to recover from such defaulting party any actual damages (excluding any special, speculative and/or consequential damages), suffered or incurred by such non-defaulting party as a result of such breach. Notwithstanding anything to the contrary contained in this Agreement, Contract shall survive the Closing for a period of six (i6) the Sellers shall not have any liability to the Purchaser pursuant to the terms of this Section 9.4 for breaches of representations, warranties and pre-Closing covenants and obligations set forth in this Agreement until the damages suffered or incurred by the Purchaser exceeds in the aggregate an amount equal to One Million Dollars ($1,000,000) months (the “Basket”), in which case Purchaser shall have the right to recover all damages incurred as a result of valid claims under this Section 9.4, including amounts less than the Basket, and (ii) the Sellers’ maximum liability to the Purchaser shall not exceed Fifteen Million Dollars ($15,000,000) (the “Cap AmountSurvival Period”). The Cap Amount shall be allocated among Buyer acknowledges that it is a sophisticated buyer who is familiar with the Sellers in proportion ownership and operation of real estate projects similar to their applicable percentage interest in the Purchase Price so that if a particular Property, and Buyer and Seller were to receive twenty percent (20%) have negotiated and agreed upon the length of the total Purchase Price Survival Period as an adequate period of time for the Properties the Cap Amount applicable Buyer to such Seller discover any and all facts that could give rise to a claim or cause of action for its breaches and/or defaults shall be twenty percent (20%) a breach of the total Cap Amounta representation. Any action suit or proceeding brought by the Purchaser against the Sellers under this Agreement shall be commenced and served, if at all, on or before the Upon expiration of the Survival Period andPeriod, if all representations contained in this Contract will be deemed to have merged into the instruments of Closing and shall be of no further force or effect. Buyer must notify Seller in writing of any claim or cause of action for a breach of any representation not commenced and served on or before later than the expiration of the Survival Period, thereafter shall be void and any claim or cause of no force or effect. The Sellers acknowledge and agree that the resolution of such action, suit, or proceeding may not occur until after the expiration of the Survival Period and the Survival Period shall be deemed to be tolled action brought with respect to a breach any representation (and only with respect toeach, a “Recovery Action”) any alleged breach or failure of a representation or warranty or covenant provided the Purchaser files an action, suit or proceeding with respect thereto prior to must be asserted not later than three (3) months after the expiration of the Survival Period. Time is of the essence with respect to the foregoing time periods, NAI-1500426046v5 and any claim or cause of action not timely raised in a notice and asserted shall be barred. Buyer waives its right to bring a Recovery Action unless the damage to Buyer on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $50,000. Buyer agrees that, with respect to any alleged breach of representations in this Contract discovered during the Survival Period, the maximum liability of Seller for all such alleged breaches is limited to $250,000. The provisions of this Section 9.4 13(c) shall not apply survive the Closing. The remedies for any breach of a representation or warranty that occurs prior to the costs or prorations Closing shall be governed by the provisions of Section 7.4 or to the commissions governed by the provisions of Section 8. Any payments made to any party pursuant to this section 9.4 shall constitute an adjustment of the Purchase Price for tax purposes Sections 10 and shall be treated as such by Purchaser and Sellers on their tax returns to the extent permitted by law13(b).

Post-Closing Liability. If any party breaches any The representations of its covenants, obligations, representations or warranties set forth in this Agreement, the non-defaulting party shall be entitled to recover from such defaulting party any actual damages (excluding any special, speculative and/or consequential damages), suffered or incurred by such non-defaulting party as a result of such breach. Notwithstanding anything to the contrary Seller contained in this Agreement, Agreement shall survive closing for a period of nine (i9) the Sellers shall not have any liability to the Purchaser pursuant to the terms of this Section 9.4 for breaches of representations, warranties and pre-Closing covenants and obligations set forth in this Agreement until the damages suffered or incurred by the Purchaser exceeds in the aggregate an amount equal to One Million Dollars ($1,000,000) months (the “Basket”), in which case Purchaser shall have the right to recover all damages incurred as a result of valid claims under this Section 9.4, including amounts less than the Basket, and (ii) the Sellers’ maximum liability to the Purchaser shall not exceed Fifteen Million Dollars ($15,000,000) (the “Cap AmountSurvival Period”). The Cap Amount shall be allocated among Buyer acknowledges that it is a sophisticated buyer who is familiar with the Sellers in proportion ownership and operation of real estate projects similar to their applicable percentage interest in the Purchase Price so that if a particular Property, and Buyer and Seller were to receive twenty percent (20%) have negotiated and agreed upon the length of the total Purchase Price Survival Period as an adequate period of time for the Properties the Cap Amount applicable Buyer to such Seller discover any and all facts that could give rise to a claim or cause of action for its breaches a breach of a representation and/or defaults shall be twenty percent (20%) of the total Cap Amountwarranty. Any action suit or proceeding brought by the Purchaser against the Sellers under this Agreement shall be commenced and served, if at all, on or before the Upon expiration of the Survival Period andPeriod, if all representations and warranties contained in this Agreement will be deemed to have merged into the instruments of Closing and shall be of no further force or effect. Buyer must notify Seller in writing of any claim or cause of action for a breach of any representation and/or warranty not commenced and served on or before later than the expiration of the Survival Period, thereafter shall be void and any claim or cause of no force or effect. The Sellers acknowledge and agree that the resolution of such action, suit, or proceeding may not occur until after the expiration of the Survival Period and the Survival Period shall be deemed to be tolled action brought with respect to (and only with respect to) any alleged a breach or failure of a representation or and/or warranty or covenant provided the Purchaser files an action(each, suit or proceeding with respect thereto prior to the a “Recovery Action”) must be asserted not later than six (6) months following expiration of the Survival Period. The provisions Time is of this Section 9.4 shall not apply the essence with respect to the costs foregoing periods, and any claim or prorations governed by the provisions cause of Section 7.4 or to the commissions governed by the provisions of Section 8action not timely raised in a notice and asserted shall be barred. Any payments made Buyer agrees that, with respect to any party pursuant alleged breach of representations and/or warranties in this Agreement discovered during the Survival Period, the maximum liability of Seller for all such alleged breaches is limited to this section 9.4 shall constitute an adjustment amount of the Purchase Price for tax purposes and shall be treated as such by Purchaser and Sellers on their tax returns to the extent permitted by lawFive Hundred Thousand Dollars ($500,000).

Post-Closing Liability. If any party breaches any of its covenants, obligations, The representations or warranties set forth in this Agreement, the non-defaulting party shall be entitled to recover from such defaulting party any actual damages (excluding any special, speculative and/or consequential damages), suffered or incurred by such non-defaulting party as a result of such breach. Notwithstanding anything to the contrary contained in this Agreement, Contract shall survive the Closing for a period of nine (i9) the Sellers shall not have any liability to the Purchaser pursuant to the terms of this Section 9.4 for breaches of representations, warranties and pre-Closing covenants and obligations set forth in this Agreement until the damages suffered or incurred by the Purchaser exceeds in the aggregate an amount equal to One Million Dollars ($1,000,000) months (the “Basket”), in which case Purchaser shall have the right to recover all damages incurred as a result of valid claims under this Section 9.4, including amounts less than the Basket, and (ii) the Sellers’ maximum liability to the Purchaser shall not exceed Fifteen Million Dollars ($15,000,000) (the “Cap AmountSurvival Period”). The Cap Amount shall be allocated among Buyer acknowledges that it is a sophisticated buyer who is familiar with the Sellers in proportion ownership and operation of real estate projects similar to their applicable percentage interest in the Purchase Price so that if a particular Property, and Buyer and Seller were to receive twenty percent (20%) have negotiated and agreed upon the length of the total Purchase Price Survival Period as an adequate period of time for the Properties the Cap Amount applicable Buyer to such Seller discover any and all facts that could give rise to a claim or cause of action for its breaches and/or defaults shall be twenty percent (20%) a breach of the total Cap Amounta representation. Any action suit or proceeding brought by the Purchaser against the Sellers under this Agreement shall be commenced and served, if at all, on or before the Upon expiration of the Survival Period andPeriod, if all representations contained in this Contract will be deemed to have merged into the instruments of Closing and shall be of no further force or effect. Buyer must notify Seller in writing of any claim or cause of action for a breach of any representation not commenced and served on or before later than the expiration of the Survival Period, thereafter shall be void and any claim or cause of no force or effect. The Sellers acknowledge and agree that the resolution of such action, suit, or proceeding may not occur until after the expiration of the Survival Period and the Survival Period shall be deemed to be tolled action brought with respect to a breach any representation (and only with respect toeach, a “Recovery Action”) any alleged breach or failure of a representation or warranty or covenant provided the Purchaser files an action, suit or proceeding with respect thereto prior to must be asserted not later than three (3) months after the expiration of the Survival Period. Time is of the essence with respect to the foregoing time periods, and any claim or cause of action not timely raised in a notice and asserted shall be barred. Buyer waives its right to bring a Recovery Action unless the damage to Buyer on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $50,000. Buyer agrees that, with respect to any alleged breach of representations in this Contract discovered during the Survival Period, the maximum liability of Seller for all such alleged breaches is limited to $500,000. Buyer agrees that, with respect to any alleged breach of representations in this Contract discovered after the Survival Period, the maximum liability of Seller for all such alleged breaches is limited to $100. The provisions of this Section 9.4 13(c) shall not apply survive the Closing. The remedies for any breach of a representation or warranty that occurs prior to the costs or prorations Closing shall be governed by the provisions of Section 7.4 or to the commissions governed by the provisions of Section 8. Any payments made to any party pursuant to this section 9.4 shall constitute an adjustment of the Purchase Price for tax purposes Sections 10 and shall be treated as such by Purchaser and Sellers on their tax returns to the extent permitted by law13(b).

Post-Closing Liability. If any party breaches any of its covenants, obligations, The representations or warranties set forth in this Agreement, the non-defaulting party shall be entitled to recover from such defaulting party any actual damages (excluding any special, speculative and/or consequential damages), suffered or incurred by such non-defaulting party as a result of such breach. Notwithstanding anything to the contrary contained in this Agreement, Contract shall survive the Closing for a period of seven (i7) the Sellers shall not have any liability to the Purchaser pursuant to the terms of this Section 9.4 for breaches of representations, warranties and pre-Closing covenants and obligations set forth in this Agreement until the damages suffered or incurred by the Purchaser exceeds in the aggregate an amount equal to One Million Dollars ($1,000,000) months (the “Basket”), in which case Purchaser shall have the right to recover all damages incurred as a result of valid claims under this Section 9.4, including amounts less than the Basket, and (ii) the Sellers’ maximum liability to the Purchaser shall not exceed Fifteen Million Dollars ($15,000,000) (the “Cap AmountSurvival Period”). The Cap Amount shall be allocated among Buyer acknowledges that it is a sophisticated buyer who is familiar with the Sellers in proportion ownership and operation of real estate projects similar to their applicable percentage interest in the Purchase Price so that if a particular Property, and Buyer and Seller were to receive twenty percent (20%) have negotiated and agreed upon the length of the total Purchase Price Survival Period as an adequate period of time for the Properties the Cap Amount applicable Buyer to such Seller discover any and all facts that could give rise to a claim or cause of action for its breaches and/or defaults shall be twenty percent (20%) a breach of the total Cap Amounta representation. Any action suit or proceeding brought by the Purchaser against the Sellers under this Agreement shall be commenced and served, if at all, on or before the Upon expiration of the Survival Period andPeriod, if all representations contained in this Contract will be deemed to have merged into the instruments of Closing and shall be of no further force or effect. Buyer must notify Seller in writing of any claim or cause of action for a breach of any representation not commenced and served on or before later than the expiration of the Survival Period, thereafter shall be void and any claim or cause of no force or effect. The Sellers acknowledge and agree that the resolution of such action, suit, or proceeding may not occur until after the expiration of the Survival Period and the Survival Period shall be deemed to be tolled action brought with respect to a breach of any representation (and only with respect toeach, a “Recovery Action”) any alleged breach or failure of a representation or warranty or covenant provided the Purchaser files an action, suit or proceeding with respect thereto prior to must be asserted not later than three (3) months after the expiration of the Survival Period. Time is of the essence with respect to the foregoing time periods, and any claim or cause of action not timely raised in a notice and asserted shall be barred. Buyer waives its right to bring a Recovery Action unless the damage to Buyer on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $50,000. Buyer agrees that, with respect to any alleged breach of representations in this Contract discovered during the Survival Period, the maximum liability of Seller for all such alleged breaches is limited to $500,000. Buyer agrees that, with respect to any alleged breach of representations in this Contract discovered after the Survival Period, the maximum liability of Seller for all such alleged breaches is limited to $100. The provisions of this Section 9.4 13(c) shall not apply survive the Closing. The remedies for any breach of a representation or warranty that occurs prior to the costs or prorations Closing shall be governed by the provisions of Section 7.4 or to the commissions governed by the provisions of Section 8. Any payments made to any party pursuant to this section 9.4 shall constitute an adjustment of the Purchase Price for tax purposes Sections 10 and shall be treated as such by Purchaser and Sellers on their tax returns to the extent permitted by law13(b).

Post-Closing Liability. If any party breaches any Seller and Purchaser agree that the representations and warranties of its covenants, obligations, representations or warranties set forth Seller in this Agreement, the non-defaulting party shall be entitled to recover from such defaulting party any actual damages (excluding any special, speculative and/or consequential damages), suffered or incurred by such non-defaulting party as a result of such breach. Notwithstanding anything to the contrary contained in this Agreement, (i) the Sellers shall not have any liability to the Purchaser pursuant to the terms of this Section 9.4 for breaches of representations, warranties and pre-Closing covenants and obligations set forth in this Agreement until the damages suffered or incurred by the Purchaser exceeds in the aggregate an amount equal to One Million Dollars ($1,000,000) (the “Basket”), in which case Purchaser shall have the right to recover all damages incurred as a result of valid claims under this Section 9.4, including amounts less than the Basket, and (ii) the Sellers’ maximum liability to the Purchaser shall not exceed Fifteen Million Dollars ($15,000,000) (the “Cap Amount”). The Cap Amount shall be allocated among the Sellers in proportion to their applicable percentage interest in the Purchase Price so that if a particular Seller were to receive twenty percent (20%4.3(a) of the total Purchase Price for the Properties the Cap Amount applicable to such Seller for its breaches and/or defaults shall be twenty percent (20%) of the total Cap Amount. Any action suit or proceeding brought by the Purchaser against the Sellers under this Agreement shall be commenced and served, if at all, on or before survive for a period of two hundred seventy (270) days after the expiration of the Survival Period and, if not commenced and served on or before the expiration of the Closing Date ("Survival Period, thereafter shall be void and "). Written notification of no force or effect. The Sellers acknowledge and agree that the resolution of such action, suit, or proceeding may not occur until after the expiration of the Survival Period and the Survival Period shall be deemed to be tolled with respect to (and only with respect to) any claim arising from an alleged breach or failure of a representation or warranty or covenant provided the Purchaser files an action, suit or proceeding with respect thereto Seller's representations and warranties must be received by Seller prior to the expiration of the Survival Period or such claim shall be forever barred and Seller shall have no liability with respect thereto; provided, however, in the event of a valid claim made by Purchaser in writing related to a Seller representation during the Survival Period, the Survival Period shall be extended only with respect to such claim until such claim is adjudicated or otherwise settled by the parties. Notwithstanding the foregoing, the maximum aggregate liability for which either Seller shall be responsible with respect to a breach of the representations and warranties made by such Seller herein shall not exceed one percent (1%) of the Purchase Price allocated to the applicable Property as set forth on Schedule "E" attached hereto, and recovery of damages up to that amount is Purchaser's sole and exclusive remedy for any such breach. Purchaser shall not seek, and Seller shall not be liable for any consequential, indirect, special or punitive damages of any nature as a result of the breach of any of Seller's representations and warranties hereunder. Purchaser shall not be entitled to any recovery pursuant to this Section 9.22 unless and until the aggregate amount of losses for which Purchaser is otherwise entitled to indemnification pursuant to this Section 9.22 exceeds $25,000; provided, however, that to the extent the aggregate amount of such losses exceeds such threshold, Purchaser shall be entitled to recover all losses (including the first $25,000). The provisions of this Section 9.4 9.22 shall not apply to the costs or prorations governed by the provisions of Section 7.4 or to the commissions governed by the provisions of Section 8. Any payments made to any party pursuant to this section 9.4 shall constitute an adjustment of the Purchase Price for tax purposes and shall be treated as such by Purchaser and Sellers on their tax returns to the extent permitted by lawsurvive Closing.