Common use of Post-Closing Remedies Clause in Contracts

Post-Closing Remedies. Notwithstanding anything contained in this Restated Agreement to the contrary, in the event the Close of Escrow occurs, Buyer hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Restated Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this Restated Agreement and the transactions contemplated hereby, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect when made if (1) Buyer had knowledge or is “deemed to have known” at the time of the Close of Escrow that such representation or warranty was untrue, inaccurate or incorrect when made and Buyer nevertheless consummates the purchase of the Property hereunder, or (2) Buyer’s damages as a result of such representations or warranties being so untrue, inaccurate or incorrect are, in the aggregate, less than $500,000 (the “Basket”), provided that once the Basket has been exceeded, Seller shall be responsible on a joint and several basis for the entirety of all claims (not just the amount in excess of the Basket). Buyer shall be “deemed to have known” at the time of the Close of Escrow that a representation or warranty was untrue, inaccurate or incorrect when made if any Data Site Information, any Acceptable Estoppel Certificate delivered to Buyer prior to Closing pursuant to Section 7.7 but only to the extent the estoppel certificate confirms, without qualification, a fact to which a Seller has represented in Section 8.1, or any other information or materials contained in the certificate delivered by Seller at Closing pursuant to Section 10.1.6, contains any information which contradicts such representation or warranty by Seller, or if prior to Closing Seller shall have notified Buyer in writing that such representation or warranty was untrue, inaccurate, or incorrect when made. Seller’s representations and warranties contained in Section 8.1, as reaffirmed and restated by Seller at Closing, shall survive the Close of Escrow for the Survival Period, unless Buyer asserts a breach of any such representation or warranty in a written notice delivered to Seller prior to the expiration of the Survival Period, in which case such applicable representation or warranty shall survive until Buyer’s claims set forth in such written notice have been resolved. For purposes of this Restated Agreement, references to “Buyer’s knowledge,” “the knowledge of Buyer,” or words of similar import shall be deemed to refer solely to the actual and not constructive knowledge of Buyer’s Knowledge Party.

Post-Closing Remedies. Notwithstanding anything contained in this Restated Agreement to the contrary, in the event the Close of Escrow occurs, Buyer hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Restated Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this Restated Agreement and the transactions contemplated hereby, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect when made if (1) Buyer Buyer’s Knowledge Party had knowledge or is “deemed to have known” at the time of the Close of Escrow that such representation or warranty was untrue, inaccurate or incorrect when made and Buyer nevertheless consummates the purchase of the Property hereunder. In addition, or (2) Buyer’s damages no post-Closing claim by Buyer against Seller as a result of such representations or warranties being so untrue, inaccurate or incorrect areshall be actionable unless the valid claims for all such breaches collectively aggregate more than $200,000, in which event the aggregate, less than $500,000 (the “Basket”), provided that once the Basket has been exceeded, Seller full amount of Buyer’s claims shall be responsible on a joint and several basis for actionable from the entirety of all claims (not just the amount in excess of the Basket)first dollar. Buyer shall be “deemed to have known” at the time of the Close of Escrow that a representation or warranty was untrue, inaccurate or incorrect when made if any Data Site InformationSeller Information listed on Exhibit D attached hereto, the PTR and the recorded documents identified therein, any Acceptable Estoppel Certificate estoppel certificate delivered to Buyer prior to Closing pursuant to Section 7.7 but only to the extent the estoppel certificate confirms, without qualification, a fact to which a Seller has represented in Section 8.17.7, or any other information or materials contained in obtained by Buyer prior to the certificate delivered by Seller at Closing pursuant to Section 10.1.6, Close of Escrow contains any information which the Buyer’s Knowledge Party knows contradicts such representation or warranty by Seller, or if prior to Closing Seller shall have notified notify Buyer in writing prior to the Close of Escrow that such representation or warranty was untrue, inaccurate, or incorrect when made. Seller’s representations and warranties contained in Section 8.1, as reaffirmed and restated by Seller at Closing, shall survive the Close of Escrow for the Survival Period, unless Buyer asserts a breach of any such representation or warranty in a written notice delivered to Seller prior to the expiration of the Survival Period, in which case such applicable representation or warranty shall survive until Buyer’s claims set forth in such written notice have been resolved. For purposes of this Restated Agreement, references to “Buyer’s knowledge,” “the knowledge of Buyer,” or words of similar import shall be deemed to refer solely to the actual and not constructive knowledge of Buyer’s Knowledge Party.

Post-Closing Remedies. Notwithstanding anything contained After the Closing, Buyer shall, subject to the terms and conditions of this Agreement, have such rights and remedies with respect to this Agreement (or with respect to any document executed and delivered in connection with this Agreement) as are available at law or in equity, except that Buyer shall, subject to any limitations on the parties’ liabilities set forth in this Restated Agreement Agreement, only be entitled to recover the contrary, in the event the Close of Escrow occurs, Buyer hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Restated Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this Restated Agreement and the transactions contemplated hereby, as the result amount of any of Seller’s representations actual, direct or warranties being untrue, inaccurate or incorrect when made if out-of-pocket damages actually incurred by Buyer which shall not exceed Two Hundred Forty-Six Thousand and 00/100 Dollars (1$246,000.00) Buyer had knowledge or is “deemed to have known” at the time of the Close of Escrow that such representation or warranty was untrue, inaccurate or incorrect when made and Buyer nevertheless consummates the purchase of the Property hereunder, or (2) Buyer’s damages as a result of such representations or warranties being so untrue, inaccurate or incorrect are, in the aggregate, less than $500,000 (the “BasketLiability Limitation”). In no event shall Buyer be entitled to recover from Seller any lost profits, provided that once speculative, punitive, consequential or special damages. At the Basket has been exceededClosing, to secure any potential liability Seller shall be responsible on may have to a joint and several basis Buyer for the entirety any claimed breach of all claims (not just the amount in excess of the Basket). Buyer shall be “deemed to have known” at the time of the Close of Escrow that a representation or warranty was untrue, inaccurate or incorrect when made if any Data Site Information, any Acceptable Estoppel Certificate delivered to Buyer prior to Closing pursuant to Section 7.7 but only to the extent the estoppel certificate confirms, without qualification, a fact to which a Seller has represented in Section 8.1, or any other information or materials contained in the certificate delivered by Seller at Closing pursuant to Section 10.1.6, contains any information which contradicts such representation or warranty by Seller, or if prior to Closing Seller shall have notified Buyer in writing that such representation or warranty was untrue, inaccurate, or incorrect when made. Seller’s representations and warranties contained in made pursuant to Section 8.17.2 of this Agreement (“Claimed Breach of Seller’s Representations”), as reaffirmed such potential liability is limited by this Section 8.3 and restated Section 8.4 of this Agreement, Seller shall deposit a sum equal to the Liability Limitation (the “Holdback”), set forth above, into an interest-bearing escrow account to be held by Escrow Holder pursuant to a post-closing escrow agreement to be executed and delivered at Closing by Buyer, Seller at Closing, and Escrow Holder in the form attached hereto as Exhibit “K” (the “Post-Closing Escrow Agreement”). The Holdback shall be held and disbursed by Escrow Holder in compliance with the Post-Closing Escrow Agreement. This Section 8.3 shall survive the Close of Escrow for the Survival Period, unless Buyer asserts a breach of any such representation or warranty in a written notice delivered to Seller prior to the expiration of the Survival Period, in which case such applicable representation or warranty shall survive until Buyer’s claims set forth in such written notice have been resolved. For purposes of this Restated Agreement, references to “Buyer’s knowledge,” “the knowledge of Buyer,” or words of similar import shall be deemed to refer solely to the actual and not constructive knowledge of Buyer’s Knowledge PartyClosing.

Post-Closing Remedies. Notwithstanding anything contained in this Restated Agreement to the contrary, in the event the Close of Escrow occurs, Buyer hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Restated Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this Restated Agreement and the transactions contemplated hereby, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect when made if (1) Buyer had actual knowledge or is “deemed to have known” at the time of the Close of Escrow that such representation or warranty was untrue, inaccurate or incorrect when made and Buyer nevertheless consummates the purchase of the Property hereunder, or (2) Buyer’s damages as a result of such representations or warranties being so untrue, inaccurate or incorrect are, in the aggregateaggregate (which aggregate amount shall take into account the repetitive nature of any damages suffered by Buyer as a result of such breach), less than $500,000 (the “Basket”), provided that once the Basket has been exceeded, Seller shall be responsible on a joint and several basis for the entirety of all claims (not just the amount in excess of the Basket)Threshold. Buyer shall be “deemed to have known” at the time of the Close of Escrow that a representation or warranty was untrue, inaccurate or incorrect when made if any Seller Information listed on Exhibit D attached hereto and posted to the Data Site Informationon the Effective Date, the Title Commitment and the recorded documents identified therein, or any Acceptable Estoppel Certificate estoppel certificates delivered to Buyer prior to Closing pursuant to Section 7.7 but only to the extent the estoppel certificate confirms, without qualification, a fact to which a Seller has represented in Section 8.17.7, or any other information or materials contained in obtained by Buyer prior to the certificate delivered by Seller at Closing pursuant to Section 10.1.6, Close of Escrow contains any information which contradicts such representation or warranty by Seller, or if prior to Closing Seller shall have notified notify Buyer in writing prior to the Close of Escrow that such representation or warranty was untrue, inaccurate, or incorrect when made. Seller’s representations and warranties contained in Section 8.1, as reaffirmed and restated by Seller at Closing, shall survive the Close of Escrow for the Survival Period, unless Buyer asserts a breach of any such representation or warranty in a written notice delivered to Seller prior to the expiration of the Survival Period, in which case such applicable representation or warranty shall survive until Buyer’s claims set forth in such written notice have been resolved. For purposes of this Restated Agreement, references to “Buyer’s knowledge,” “the knowledge of Buyer,” or words of similar import shall be deemed to refer solely to the actual and not constructive knowledge of Buyer’s Knowledge Party.

Post-Closing Remedies. From and after the Closing, but subject to the limitations set forth in this Section 14.4 and Section 14.5, and, as applicable, the Survival Period, Seller shall be liable for losses (including reasonable attorneys’ fees), incurred by Buyer, to the extent arising out of, or relating to (i) any breach of of a representation of warranty of Seller contained in this Agreement or in any document delivered by Seller in connection with Closing, and (ii) any breach of a covenant of Seller contained in this Agreement or any document delivered by Seller in connection with Closing. Notwithstanding anything contained in this Restated Agreement to the contrary, in the event the Close of Escrow occurs, Buyer hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Restated Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this Restated Agreement and the transactions contemplated hereby, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect when made if (1) Buyer had knowledge or is “deemed to have known” at the time of the Close of Escrow that such representation or warranty was untrue, inaccurate or incorrect when made made, Buyer had the right to terminate the Agreement, and Buyer nevertheless consummates the purchase of the Property hereunder, or (2) Buyer’s damages as a result of such representations or warranties being so untrue, inaccurate or incorrect are, in the aggregate, less than $500,000 750,000 (the “BasketThreshold”), provided that once the Basket has been exceeded, Seller shall be responsible on a joint and several basis for the entirety of all claims (not just the amount in excess of the Basket). Buyer shall be “deemed to have known” at the time of the Close of Escrow that a representation or warranty was untrue, inaccurate or incorrect when made if any the facts and circumstances with respect to such breach of a representation or warranty were disclosed in the Data Site InformationRoom, any Acceptable Estoppel Certificate delivered to Buyer prior to Closing pursuant to Section 7.7 but only to the extent the estoppel certificate confirms, without qualification, a fact to which a Seller has represented in Section 8.1executed and delivered by Schwab, or any other information or materials contained disclosed in the certificate delivered by Seller at Closing pursuant to Section 10.1.6, contains any information which contradicts such representation or warranty writing by Seller, its broker or if its other agents, in each case prior to Closing Seller shall have notified Buyer the Close of Escrow, in writing that such representation or warranty was untrue, inaccurate, or incorrect when madesufficient detail to identify the nature and scope of the matter disclosed. Seller’s representations and warranties contained in Section 8.1, as reaffirmed and restated by Seller at Closing, shall survive the Close of Escrow for the Survival Period, unless Buyer asserts a breach of any such representation or warranty in a written notice delivered to Seller prior to the expiration of the Survival Period, in which case such applicable representation or warranty shall survive until Buyer’s claims set forth in such written notice have been resolved. For purposes of this Restated Agreement, references to “Buyer’s knowledge,” “the knowledge of Buyer,” or words of similar import shall be deemed to refer solely to the actual and not constructive knowledge of Buyer’s Knowledge Party.