Common use of Seller’s Maximum Aggregate Liability Clause in Contracts

Seller’s Maximum Aggregate Liability. Notwithstanding any provision to the contrary contained in this Agreement or any documents executed by Seller pursuant hereto or in connection herewith, the maximum aggregate liability of Seller, and the maximum aggregate amount which may be awarded to and collected by Buyer, for any breach of this Agreement by Seller (including, without limitation, the breach of any representations and warranties contained herein) and any and all documents executed pursuant hereto or in connection herewith for which a claim is timely made, within and before thirteen (13) months after the Closing Date, by Buyer shall not exceed Two Hundred Thousand Dollars ($200,000). The representations and warranties made by Seller in this Agreement (or any and all documents executed pursuant hereto or in connection herewith) shall survive the Close of Escrow and not be merged therein for a period of thirteen (13) months and Seller shall only be liable to Buyer hereunder for a breach of representation and warranty made herein or in any of the documents executed by Seller at the Closing with respect to which a claim is made by Buyer against Seller on or before the last day of the thirteenth (13th) month after the date of the Closing. Anything in this Agreement to the contrary notwithstanding, the maximum aggregate liability of Seller for Seller’s breaches of representations and warranties herein or in any documents executed by Seller at Closing shall be limited as set forth in this Section. Notwithstanding the foregoing, however, if 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 may incur, or to rescind this Agreement and the transaction, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect if (a) Buyer knew or is deemed to know that such representation or warranty was untrue, inaccurate or incorrect at the time of the Close of Escrow, or (b) Buyer’s damages as a result of such representations or warranties being untrue, inaccurate or incorrect are reasonably estimated to aggregate less than Ten Thousand Dollars ($10,000.00). In no event shall the Ten Thousand Dollars ($10,000.00) addressed in the immediately preceding sentence be construed to act or function as a deductible. The provisions of this section shall survive the Closing and shall not be merged therein.

Seller’s Maximum Aggregate Liability. Notwithstanding any provision to the contrary contained in this Agreement or any documents executed by Seller pursuant hereto or in connection herewith, after Closing (i) Seller shall have no liability for any breach of this Agreement unless all losses resulting therefrom shall exceed, in the aggregate, the amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) (the "Threshold Liability Amount"), in which event, Seller’s liability respecting any final judgment concurring such claim(s) shall be for the entire amount thereof, subject to the "Maximum Liability Amount" (as defined below), and (ii) the maximum aggregate liability of Seller, and the maximum aggregate amount which may be awarded to and collected by Buyer, for any breach of this Agreement by Seller (including, without limitation, the breach of any representations and warranties contained herein) and any and all documents executed pursuant hereto or in connection herewith for which a claim is timely made, made (which claim must be made within and before thirteen the date that is twelve (1312) months after the Closing Date, ) by Buyer shall not exceed Two Hundred Thousand Dollars one and one half percent ($200,0001.5%) of the Purchase Price ("Maximum Liability Amount"). The representations Notwithstanding anything herein to the contrary, in no event shall the limitations and warranties made restrictions of Seller's liabilities set forth in this Section 9.3 apply to any covenant or obligation of Seller that expressly survives the Closing. If Seller sells or otherwise disposes of its entire fee interest in all real estate assets owned by Seller prior to the last day of the Survival Period, then starting on the date of such sale (the "Final Sale Date") and continuing until the expiration of the Survival Period, Seller shall retain liquid assets in excess of the Maximum Liability Amount; provided, however, if Buyer notifies Seller, in writing and in reasonable detail, during the Survival Period of any pending claim against Seller (with the date of delivery of such notice being referred to herein as the "Buyer's Claim Notice Date"), then Seller shall retain liquid assets in excess of total amount of such claim until such claim is resolved. The provisions of this Agreement (or any and all documents executed pursuant hereto or in connection herewith) Section 9.3 shall survive the Close of Escrow and not be merged therein for a period of thirteen (13) months and Seller shall only be liable to Buyer hereunder for a breach of representation and warranty made herein or in any of the documents executed by Seller at the Closing with respect to which a claim is made by Buyer against Seller on or before the last day of the thirteenth (13th) month after the date of the Closing. Anything in this Agreement to the contrary notwithstanding, the maximum aggregate liability of Seller for Seller’s breaches of representations and warranties herein or in any documents executed by Seller at Closing shall be limited as set forth in this Section. Notwithstanding the foregoing, however, if 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 may incur, or to rescind this Agreement and the transaction, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect if (a) Buyer knew or is deemed to know that such representation or warranty was untrue, inaccurate or incorrect at the time of the Close of Escrow, or (b) Buyer’s damages as a result of such representations or warranties being untrue, inaccurate or incorrect are reasonably estimated to aggregate less than Ten Thousand Dollars ($10,000.00). In no event shall the Ten Thousand Dollars ($10,000.00) addressed in the immediately preceding sentence be construed to act or function as a deductible. The provisions of this section shall survive the Closing and shall not be merged thereinwith the Deed.

Seller’s Maximum Aggregate Liability. Notwithstanding any provision to the contrary contained in this Agreement or any documents executed by Seller pursuant hereto or in connection herewith, the maximum aggregate representations and warranties of Seller set forth in Section 6.1, together with Seller’s liability of Seller, and the maximum aggregate amount which may be awarded to and collected by Buyer, for any breach of this Agreement by any of Seller’s interim operating covenants under Article 8, shall survive the Closing and not be merged into the deed for a period of nine (9) months. Buyer shall have no right to bring any action against Seller as a result of any untruth or inaccuracy of such representations and warranties, or any such breach, unless (a) Buyer serves a written claim on Seller within such nine (9) month period, (b) Buyer commences and serves an action against Seller within thirty (30) days after Buyer gives such notice, and (c) the aggregate amount of all liability and losses arising out of any such untruth or inaccuracy, or any such breach, exceeds $25,000. In addition, in no event shall Seller’s liability for all such breaches exceed, in the aggregate, $750,000. Seller shall have no liability with respect to any of Seller’s representations, warranties and covenants herein if, prior to the Closing, Buyer has actual knowledge of any breach of a representation, warranty or covenant of Seller herein, or Buyer obtains actual knowledge (from whatever source, including, without limitation, any of the breach Due Diligence Items, as a result of Buyer’s Due Diligence, the inclusion of any information in or written disclosure by Seller or Seller’s agents and employees) that contradicts any of Seller’s representations and warranties contained herein) , and any and all documents executed pursuant hereto or in connection herewith for which a claim is timely made, within and before thirteen (13) months after Buyer nevertheless consummates the Closing Date, transaction contemplated by Buyer shall not exceed Two Hundred Thousand Dollars ($200,000)this Agreement. The representations and warranties made by Seller in provisions of this Agreement (or any and all documents executed pursuant hereto or in connection herewith) Section 6.3 shall expressly survive the Close of Escrow and shall not be merged therein for a period of thirteen (13) months and Seller shall only be liable to Buyer hereunder for a breach of representation and warranty made herein merge into the Deed or in any of the other closing documents executed by Seller at the Closing with respect to which a claim is made by Buyer against Seller on or before the last day of the thirteenth (13th) month after the date of the Closing. Anything in this Agreement to the contrary notwithstanding, the maximum aggregate liability of Seller for Seller’s breaches of representations and warranties herein or in any documents executed by Seller at Closing shall be limited as set forth in this Section. Notwithstanding the foregoing, however, if 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 may incur, or to rescind this Agreement and the transaction, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect if (a) Buyer knew or is deemed to know that such representation or warranty was untrue, inaccurate or incorrect at the time of the Close of Escrow, or (b) Buyer’s damages as a result of such representations or warranties being untrue, inaccurate or incorrect are reasonably estimated to aggregate less than Ten Thousand Dollars ($10,000.00). In no event shall the Ten Thousand Dollars ($10,000.00) addressed in the immediately preceding sentence be construed to act or function as a deductible. The provisions of this section shall survive the Closing and shall not be merged thereinhereunder.

Seller’s Maximum Aggregate Liability. Notwithstanding any provision to the contrary contained in this Agreement or any documents executed by Seller pursuant hereto or in connection herewith, the maximum aggregate representations and warranties of Seller set forth in Section 6.1, together with Seller’s liability of Seller, and the maximum aggregate amount which may be awarded to and collected by Buyer, for any breach of this Agreement by any of Seller’s interim operating covenants under Article 8, shall survive the Closing and not be merged into the deed for a period of nine (9) months. Buyer shall have no right to bring any action against Seller as a result of any untruth or inaccuracy of such representations and warranties, or any such breach, unless (a) Buyer serves a written claim on Seller within such nine (9) month period, (b) Buyer commences and serves an action against Seller within thirty (30) days after Buyer gives such notice, and (c) the aggregate amount of all liability and losses arising out of any such untruth or inaccuracy, or any such breach, exceeds $25,000. In addition, in no event shall Seller’s liability for all such breaches exceed, in the aggregate, $500,000. Seller shall have no liability with respect to any of Seller’s representations, warranties and covenants herein if, prior to the Closing, Buyer has actual knowledge of any breach of a representation, warranty or covenant of Seller herein, or Buyer obtains actual knowledge (from whatever source, including, without limitation, any of the breach Due Diligence Items, as a result of Buyer’s Due Diligence, the inclusion of any information in or written disclosure by Seller or Seller’s agents and employees) that contradicts any of Seller’s representations and warranties contained herein) , and any and all documents executed pursuant hereto or in connection herewith for which a claim is timely made, within and before thirteen (13) months after Buyer nevertheless consummates the Closing Date, transaction contemplated by Buyer shall not exceed Two Hundred Thousand Dollars ($200,000)this Agreement. The representations and warranties made by Seller in provisions of this Agreement (or any and all documents executed pursuant hereto or in connection herewith) Section 6.3 shall expressly survive the Close of Escrow and shall not be merged therein for a period of thirteen (13) months and Seller shall only be liable to Buyer hereunder for a breach of representation and warranty made herein merge into the Deed or in any of the other closing documents executed by Seller at the Closing with respect to which a claim is made by Buyer against Seller on or before the last day of the thirteenth (13th) month after the date of the Closing. Anything in this Agreement to the contrary notwithstanding, the maximum aggregate liability of Seller for Seller’s breaches of representations and warranties herein or in any documents executed by Seller at Closing shall be limited as set forth in this Section. Notwithstanding the foregoing, however, if 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 may incur, or to rescind this Agreement and the transaction, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect if (a) Buyer knew or is deemed to know that such representation or warranty was untrue, inaccurate or incorrect at the time of the Close of Escrow, or (b) Buyer’s damages as a result of such representations or warranties being untrue, inaccurate or incorrect are reasonably estimated to aggregate less than Ten Thousand Dollars ($10,000.00). In no event shall the Ten Thousand Dollars ($10,000.00) addressed in the immediately preceding sentence be construed to act or function as a deductible. The provisions of this section shall survive the Closing and shall not be merged thereinhereunder.