Common use of Survival and Limitations Clause in Contracts

Survival and Limitations. (i) The parties agree that Seller’s representations and warranties contained in this Agreement and in any document executed by Seller pursuant to this Agreement shall expire and shall be of no further force or effect as of one hundred twenty (120) days following the Closing Date (the “Limitation Period”). If Buyer, within the Limitation Period, gives notice to Seller of any breach of such representations or warranties or any Post-Closing Default (the “Notice”) and if Seller fails to cure such breach within thirty (30) days following the giving of such notice, or, if such breach cannot reasonably be cured within thirty (30) days, Seller shall be provided with an additional reasonable time period to cure such breach not to exceed the expiration of the Limitation Period, so long as such cure has been commenced within such thirty (30) days and has been diligently pursued. If Seller fails to cure such breach after actual written notice and within such cure periods, Buyer’s sole remedy shall be an action at law for damages as a consequence thereof, which must be commenced, if at all, prior to the expiration of the Overall Limitation Period (defined below). The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties, provided that consent to the Closing by Buyer or Seller shall be deemed to constitute a waiver of any breach of which Buyer had actual knowledge as of the Closing Date. Buyer shall not have the right to bring a cause of action for a breach of a representation or warranty unless the damage to such party on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $50,000.00, and Buyer agrees that the post-Closing maximum liability of Seller for the alleged breach of any or all representations or warranties set forth in this Agreement and/or any Post-Closing Default is limited to $250,000.00.

Survival and Limitations. (i) The parties agree that Seller’s any representations and warranties contained in this Agreement and in any document executed by Seller pursuant to this Agreement shall expire and shall be of no further force or effect as of one two hundred twenty seventy (120270) days following the Closing Date (the “Limitation Period”). If Buyer, within the Limitation Period, gives notice to Seller of any breach of such representations or warranties or any Post-Closing Default (the “Initial Notice”) (which Initial Notice shall concurrently be delivered to Title Company, as Escrow Holder under the Escrow Holdback Agreement), and if the Seller fails or Individual Sellers fail to cure such breach or Post-Closing Default, as the case may be, within thirty (30) days following the giving of such notice, Initial Notice (or, if such breach or Post-Closing Default cannot reasonably be cured within thirty (30) days, Seller shall be provided with an additional reasonable time period to cure such breach not to exceed sixty (60) days following the expiration giving of the Limitation Periodsuch Initial Notice, so long as such cure has been commenced within such thirty (30) days and has been diligently pursued. If Seller fails ), then Buyer shall have the right to cure such breach after actual written notice and within such cure periods, Buyer’s sole remedy shall be an action at law for damages as deliver a consequence thereof, which must be commenced, if at all, prior “Claim Notice” pursuant to the expiration terms and conditions of the Overall Limitation Period (defined below)Escrow Holdback Agreement. The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties; provided that, provided that consent to the Closing by Buyer or Seller shall be deemed to constitute a waiver of any breach of which Buyer had actual knowledge (exclusive of any constructive and imputed knowledge) as of the Closing Date. Buyer shall not have the right to bring a cause of action for a breach of a representation or warranty unless the damage to such party Buyer on account of such breach one or more breaches (individually or when combined with damages from other breaches) equals or exceeds $50,000.001,000 (the “Damages Floor”) (provided, however, that upon reaching such threshold amount, Seller shall be liable for the entire amount of such claim), and Buyer agrees that the post-Closing maximum aggregate liability of the Seller and Individual Sellers for the alleged breach of any or all representations or warranties set forth in this Agreement and/or any Post-Closing Default is limited to $250,000.00200,000 as more particularly set forth in Section 13(t)(ii) immediately below (the “Damages Ceiling”). Notwithstanding the forgoing, the above described Damages Floor and Damages Ceiling shall not be applicable to instances of intentional fraud or misrepresentation by an Individual Seller.

Survival and Limitations. (i) The parties agree that Seller’s representations and warranties contained in this Agreement and in any document executed by Seller pursuant to this Agreement shall expire and shall be of no further force or effect as of one hundred twenty twelve (12012) days months following the Closing Date (the “Limitation Period”). If Buyer, within the Limitation Period, gives notice to Seller of any breach of such representations or warranties or any Post-Closing Default (the “Notice”) ), and if Seller fails to cure such breach or Post-Closing Default, as the case may be, within thirty sixty (3060) days following the giving of such notice, Notice (or, if such breach or Post-Closing Default cannot reasonably be cured within thirty sixty (3060) days, Seller shall be provided with an additional reasonable time period to cure such breach not to exceed the expiration of the Limitation Periodbreach, so long as such cure has been commenced within such thirty sixty (3060) days and has been diligently pursued. If Seller fails to cure such breach after actual written notice and within such cure periods), then Buyer’s sole remedy shall be an action at law for damages as a consequence thereof, which must be commenced, if at all, prior to the expiration of the Overall Limitation Period (defined below). The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties; provided that, provided that consent to the Closing by Buyer or Seller shall be deemed to constitute a waiver of any breach of which Buyer had actual knowledge as of the Closing Date. Buyer shall not have the right to bring a cause of action for a breach of a representation or warranty unless the damage to such party claim against Buyer on account of such breach (individually or when combined with damages claims from other breaches) equals or exceeds $50,000.00, 250,000.00 and Buyer agrees that the post-Closing maximum liability of Seller for the alleged breach of any or all representations or warranties set forth in this Agreement and/or any Post-Closing Default is limited to $250,000.0010,470,000.00 as more particularly set forth in Section 14(q)(ii) immediately below.

Survival and Limitations. (i) The parties agree that Seller’s representations Except as otherwise expressly provided herein, any claims for breach of the representations, warranties, covenants and warranties claims under the indemnities of Seller contained in this Agreement and in any document executed by Seller pursuant to this Agreement shall expire and herein shall be of no further force or effect as of one made within two hundred twenty seventy (120270) days following the Closing Date (the “Limitation Survival Period”), otherwise they shall irrevocably be deemed to have been waived by Buyer. If BuyerNotwithstanding the foregoing or anything to the contrary herein, within Seller acknowledges and agrees that the Limitation resolution of such claim 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 of which Seller receives notice before the expiration of the Survival Period, gives notice . Seller shall have no liability to Seller of Buyer for any breach of such representations representations, warranties, covenants or warranties or under any Postindemnities of Seller contained herein (other than as set forth below in the penultimate sentence of this Section 12.2) unless and until Buyer’s actual out-Closing Default (the “Notice”) and if Seller fails to cure of-pocket loss from such breach within thirty and/or under such indemnities (30or aggregate losses from all such breaches and/or under such indemnities) days following the giving of such notice, or, if such breach cannot reasonably be cured within thirty exceeds $50,000 (30) days, at which point Seller shall be provided with an additional reasonable time period to cure such breach not to exceed liable for the expiration full amount of the Limitation Perioddamages, so long including the $50,000); and provided further, that in no event shall Seller’s aggregate liability to Buyer for all such breaches and/or under such indemnities (other than as such cure has been commenced within such thirty set forth below in the penultimate sentence of this Section 12.2) exceed two percent (302%) days of the Purchase Price. Buyer hereby acknowledges and has been diligently pursued. If Seller fails agrees that if the Closing occurs under this Agreement, then Buyer's remedies set forth in this Article XII, and subject in all events to cure such breach after actual written notice the limitations and within such cure periodsrestrictions set forth herein, Buyer’s sole remedy shall be an action at law Buyer's sole and exclusive remedy against Seller (or any Affiliate of Seller) for damages as a consequence thereof, which must be commenced, if at all, prior any breach or default or alleged breach or default by Seller (or any Affiliate of Seller) or claim for indemnification against Seller (or any Affiliate of Seller) under this Agreement or in connection with any matter related to the expiration of the Overall Limitation Period (defined below). The Limitation Period Transaction, and that in no event shall apply to known as well as unknown breaches of such representations or warranties, provided that consent to the Closing by Buyer or Seller shall be deemed to constitute a waiver of any breach of which Buyer had actual knowledge as of the Closing Date. Buyer shall not have the right to bring a cause initiate any other action or remedy against Seller (or any Affiliate of action Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for a breach rescission of a representation or warranty unless its acquisition of the damage Property. Except as set forth in the Side Letter, each party hereto hereby waives its rights to such recover from the other party on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $50,000.00indirect, punitive, exemplary, and Buyer agrees that speculative damages. For the post-Closing maximum avoidance of doubt, the Survival Period and the foregoing 2% liability cap and $50,000 basket shall not apply to any breach by Seller of Seller for the alleged breach of any or all representations or and warranties set forth in this Agreement and/or Section 15.11, any Postbreach by Seller of any post-Closing Default is limited covenant or agreement set forth in Section 4.28(b), Section 6.2, Section 15.13, Section 15.14, Section 15.19 or any Closing adjustments or prorations to $250,000.00be made pursuant to Article XIV of this Agreement. This Section 12.2 shall survive Closing or Termination of this Agreement.

Survival and Limitations. (i) The parties Parties agree that Seller’s representations and warranties contained in this Agreement and in any document executed by Seller pursuant to this Agreement 's Representations shall expire and shall be of no further force or effect as of one hundred twenty nine (1209) days months following the Closing Date (the “"Limitation Period”"). If Buyer, within the Limitation Period, gives notice to Seller of any breach of such representations or warranties Seller's Representations or any Post-Closing Default (the “"Notice”) "), which Notice shall not be effective unless it sets forth, in detail and with particularity, the breach or default and the factual basis for asserting the same, and if Seller fails to cure such breach or Post-Closing Default, as the case may be, within thirty (30) days following the giving of such noticeNotice, or, if such breach or Post-Closing Default cannot reasonably be cured within thirty (30) days, Seller shall be provided with an additional reasonable time period to cure such breach not to exceed the expiration of the Limitation Periodbreach, so long as such cure has been commenced within such thirty (30) days and has been diligently pursued. If Seller fails to cure pursued and is concluded within one hundred twenty (120) days following the giving of such breach after actual written notice and within such cure periodsNotice, then Buyer’s 's sole remedy shall be an action at law for damages as a consequence thereof, which must be commenced, if at all, prior to the expiration of the Overall Limitation Period (defined below)Period. The Limitation Period shall apply to known as well as unknown breaches of such representations or warrantiesSeller's Representations; provided that, provided that consent to the Closing by Buyer or Seller shall be deemed to constitute a waiver of any breach of which Buyer is deemed to know or had actual knowledge as of the Closing Date. Buyer shall not have the right to bring a cause of action for a breach of a representation or warranty Seller's Representation unless the damage to such party Buyer on account of such breach (individually or when combined with damages from other breaches) equals or ./-/5-2-19// 21 3285553_2 exceeds Twenty-Five Thousand and No/100 Dollars ($50,000.0025,000.00), and Buyer agrees that the post-Closing maximum liability of Seller for the alleged breach of any or all representations or warranties set forth in this Agreement Seller's Representation and/or any Post-Closing Default is limited to One Million and No/100 Dollars ($250,000.001,000,000.00) as more particularly set forth in Section 14(m)(ii).

Survival and Limitations. (i) The parties agree that Seller’s provisions of this Article 14 shall survive the Closing. The warranties and representations and warranties of Seller contained in this Agreement and or in any instrument delivered pursuant hereto will survive the Closing and will remain in full force and effect thereafter for a period of one year after the Inventory Closing Date and shall be effective with respect to any inaccuracy therein or breach thereof, notice of which shall have been duly given within such one year period, in accordance with Section 14.3 hereof, except that the representations of Seller in Section 4.6 shall survive until the end of the applicable statute of limitations. Anything to the contrary contained herein notwithstanding, (i) Purchaser shall not assert any claim against Seller for indemnification hereunder unless and until the amount of such claim or claims shall exceed One Hundred Thousand Dollars ($100,000) calculated on a cumulative basis and not a per item basis, in which event Purchaser shall be entitled to claim only the amount of such excess; (ii) Purchaser shall not be entitled to recover from Seller more than an aggregate amount equal to twenty five percent (25%) of the total Purchase Price with respect to all claims for indemnity or damages whether such claims are brought under this Article 14 or otherwise. The terms of the foregoing sentence shall not apply to Seller's' obligation to provide indemnification to Purchaser with respect to the matters set forth in Section 3.2 (Retained Liabilities), Article 6 (Employees and Employee Benefits) and Section 14.6 (Environmental) and any matter to be performed by Seller subsequent to the Closing Date or Inventory Closing Date, as applicable, pursuant to this Agreement or any document executed delivered by Seller pursuant to this Agreement shall expire and shall be of no further force or effect as of one hundred twenty (120) days following the Closing Date (the “Limitation Period”). If Buyer, within the Limitation Period, gives notice to Seller of any breach of such representations or warranties or any Post-Closing Default (the “Notice”) and if Seller fails to cure such breach within thirty (30) days following the giving of such notice, or, if such breach cannot reasonably be cured within thirty (30) days, Seller shall be provided with an additional reasonable time period to cure such breach not to exceed the expiration of the Limitation Period, so long as such cure has been commenced within such thirty (30) days and has been diligently pursued. If Seller fails to cure such breach after actual written notice and within such cure periods, Buyer’s sole remedy shall be an action at law for damages as a consequence thereof, which must be commenced, if at all, prior to the expiration of the Overall Limitation Period (defined below). The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties, provided that consent to the Closing by Buyer or Seller shall be deemed to constitute a waiver of any breach of which Buyer had actual knowledge as of the Closing Date. Buyer shall not have the right to bring a cause of action for a breach of a representation or warranty unless the damage to such party on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $50,000.00, and Buyer agrees that the post-Closing maximum liability of Seller for the alleged breach of any or all representations or warranties set forth in this Agreement and/or any Post-Closing Default is limited to $250,000.00Section 1.2.