Common use of Post-Closing Remedies Clause in Contracts

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 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 Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this 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, 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 $750,000 (the “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 the facts and circumstances with respect to such breach of a representation or warranty were disclosed in the Data Room, the estoppel certificate executed and delivered by Schwab, or disclosed in writing by Seller, its broker or its other agents, in each case prior to the Close of Escrow, in sufficient 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 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 After the Closing, but 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 Section 14.4 and Section 14.5Agreement, andonly be entitled to recover the amount of any actual, as applicable, the Survival Period, Seller shall be liable for losses (including reasonable attorneys’ fees), direct or out-of-pocket damages actually incurred by Buyer, to the extent arising out of, or relating to Buyer which shall not exceed Two Hundred Forty-Six Thousand and 00/100 Dollars (i$246,000.00) 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 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 Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this 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, 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 $750,000 (the “ThresholdLiability Limitation”). In no event shall Buyer shall be “deemed entitled to recover from Seller any lost profits, speculative, punitive, consequential or special damages. At the Closing, to secure any potential liability Seller may have known” at the time of the Close of Escrow that to a representation or warranty was untrue, inaccurate or incorrect when made if the facts and circumstances with respect to such Buyer for any claimed breach of a representation or warranty were disclosed in the Data Room, the estoppel certificate executed and delivered by Schwab, or disclosed in writing by Seller, its broker or its other agents, in each case prior to the Close of Escrow, in sufficient detail to identify the nature and scope of the matter disclosed. 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 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 Section 8.4 of this Agreement, references 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’s knowledge,, Seller and Escrow Holder in the form attached hereto as Exhibit “K” (the “the knowledge of Buyer,” or words of similar import Post-Closing Escrow Agreement”). The Holdback shall be deemed to refer solely to held and disbursed by Escrow Holder in compliance with the actual and not constructive knowledge of Buyer’s Knowledge PartyPost-Closing Escrow Agreement. This Section 8.3 shall survive the Closing.

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, Buyer had the right to terminate the Agreement, 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 $750,000 500,000 (the “ThresholdBasket”), 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 facts and circumstances with respect 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 breach of a representation or warranty were disclosed in the Data Room, the estoppel certificate executed and delivered by Schwab, or disclosed in writing by Seller, its broker or its other agents, in each case if prior to the Close of EscrowClosing Seller shall have notified Buyer in writing that such representation or warranty was untrue, in sufficient detail to identify the nature and scope of the matter disclosedinaccurate, 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 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 Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this 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, Buyer had the right to terminate the Agreement, 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 $750,000 (the “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 the facts any Seller Information listed on Exhibit D attached hereto and circumstances with respect posted to such breach of a representation or warranty were disclosed in the Data RoomSite on the Effective Date, the estoppel certificate executed Title Commitment and delivered by Schwabthe recorded documents identified therein, or disclosed in writing any estoppel certificates delivered to Buyer pursuant to Section 7.7, or any other information or materials obtained by Seller, its broker or its other agents, in each case Buyer prior to the Close of EscrowEscrow contains any information which contradicts such representation or warranty by Seller, or if Seller shall notify Buyer in sufficient detail writing prior to identify the nature and scope Close of the matter disclosedEscrow 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 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 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 Agreement to make a claim against Seller for damages that Buyer incurs or may incur, or to rescind this 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, Buyer had the right to terminate the Agreement, 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 $750,000 (full amount of Buyer’s claims shall be actionable from the “Threshold”)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 the facts and circumstances with respect to such breach of a representation or warranty were disclosed in the Data Roomany Seller Information listed on Exhibit D attached hereto, the PTR and the recorded documents identified therein, any estoppel certificate executed and delivered by Schwabto Buyer pursuant to Section 7.7, or disclosed in writing any other information or materials obtained by Seller, its broker or its other agents, in each case Buyer prior to the Close of EscrowEscrow contains any information which the Buyer’s Knowledge Party knows contradicts such representation or warranty by Seller, or if Seller shall notify Buyer in sufficient detail writing prior to identify the nature and scope Close of the matter disclosedEscrow 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 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.