Common use of Survival and Limitations Clause in Contracts

Survival and Limitations. Except as otherwise expressly provided herein, any claims for breach of the representations, warranties, covenants and claims under the indemnities of Seller contained herein shall be made within two hundred seventy (270) days following the Closing Date (the “Survival Period”), otherwise they shall irrevocably be deemed to have been waived by Buyer. Notwithstanding the foregoing or anything to the contrary herein, Seller acknowledges and agrees that the 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. Seller shall have no liability to Buyer for any breach of such representations, warranties, covenants or under any indemnities 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-of-pocket loss from such breach and/or under such indemnities (or aggregate losses from all such breaches and/or under such indemnities) exceeds $50,000 (at which point Seller shall be liable for the full amount of the damages, 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 set forth below in the penultimate sentence of this Section 12.2) exceed two percent (2%) of the Purchase Price. Buyer hereby acknowledges and 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 the limitations and restrictions set forth herein, shall be Buyer's sole and exclusive remedy against Seller (or any Affiliate of Seller) for 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 Transaction, and that in no event shall Buyer have the right to initiate any other action or remedy against Seller (or any Affiliate of Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for rescission of its acquisition of the Property. Except as set forth in the Side Letter, each party hereto hereby waives its rights to recover from the other party indirect, punitive, exemplary, and speculative damages. For the 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 the representations and warranties set forth in Section 15.11, any breach by Seller of any post-Closing 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 be made pursuant to Article XIV of this Agreement. This Section 12.2 shall survive Closing or Termination of this Agreement.

Survival and Limitations. Except as otherwise expressly provided herein, (i) The parties agree that any claims for breach of the representations, warranties, covenants representations and claims under the indemnities of Seller warranties contained herein in this Agreement shall expire and shall be made within of no further force or effect as of two hundred seventy (270) days following the Closing Date (the “Survival Limitation Period”). If Buyer, otherwise they 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 irrevocably concurrently be deemed delivered to Title Company, as Escrow Holder under the Escrow Holdback Agreement), and the Seller 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 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 giving of such Initial Notice, so long as such cure has been commenced within such thirty (30) days and has been diligently pursued), then Buyer shall have been waived by Buyer. Notwithstanding the foregoing or anything right to deliver a “Claim Notice” pursuant to the contrary herein, Seller acknowledges terms and agrees that conditions of the resolution Escrow Holdback Agreement. The Limitation Period shall apply to known as well as unknown breaches of such claim may not occur until after representations or warranties; provided that, consent to the expiration of the Survival Period and the Survival Period Closing by Buyer shall be deemed to be tolled with respect to (and only with respect to) any claim constitute a waiver of which Seller receives notice before the expiration of the Survival Period. Seller shall have no liability to Buyer for 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 Buyer on account of such representations, warranties, covenants one or under any indemnities of Seller contained herein more breaches (individually or when combined with damages from other than as set forth below in the penultimate sentence of this Section 12.2breaches) unless and until Buyer’s actual out-of-pocket loss from such breach and/or under such indemnities (equals or aggregate losses from all such breaches and/or under such indemnities) exceeds $50,000 1,000 (at which point the “Damages Floor”) (provided, however, that upon reaching such threshold amount, Seller shall be liable for the full entire amount of such claim), and Buyer agrees that the damages, including the $50,000); and provided further, that in no event shall Seller’s post-Closing maximum aggregate liability to Buyer for all such breaches and/or under such indemnities (other than as set forth below in the penultimate sentence of this Section 12.2) exceed two percent (2%) of the Purchase Price. Buyer hereby acknowledges Seller and agrees that if Individual Sellers for the Closing occurs under this Agreement, then Buyer's remedies alleged breach of any or all representations or warranties set forth in this Article XII, and subject in all events Agreement and/or any Post-Closing Default is limited to the limitations and restrictions set forth herein, shall be Buyer's sole and exclusive remedy against Seller (or any Affiliate of Seller) for 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 Transaction, and that in no event shall Buyer have the right to initiate any other action or remedy against Seller (or any Affiliate of Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for rescission of its acquisition of the Property. Except $200,000 as set forth in the Side Letter, each party hereto hereby waives its rights to recover from the other party indirect, punitive, exemplary, and speculative damages. For the 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 the representations and warranties more particularly set forth in Section 15.1113(t)(ii) immediately below (the “Damages Ceiling”). Notwithstanding the forgoing, any breach the above described Damages Floor and Damages Ceiling shall not be applicable to instances of intentional fraud or misrepresentation by Seller of any post-Closing 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 be made pursuant to Article XIV of this Agreement. This Section 12.2 shall survive Closing or Termination of this Agreementan Individual Seller.

Survival and Limitations. Except as otherwise expressly provided herein, any claims for breach of the representations, warranties, covenants (i) The Parties agree that Seller's Representations shall expire and claims under the indemnities of Seller contained herein shall be made within two hundred seventy of no further force or effect as of nine (2709) days months following the Closing Date (the “Survival "Limitation Period”"). If Buyer, within the Limitation Period, gives notice to Seller of any breach of such Seller's Representations or any Post-Closing Default (the "Notice"), otherwise they which Notice shall irrevocably not be deemed 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 have been waived by Buyer. Notwithstanding cure such breach or Post-Closing Default, as the foregoing case may be, within thirty (30) days following the giving of such Notice, or, if such breach or anything to the contrary hereinPost-Closing Default cannot reasonably be cured within thirty (30) days, Seller acknowledges shall be provided with an additional reasonable time period to cure such breach, so long as such cure has been commenced within such thirty (30) days and agrees that has been diligently pursued and is concluded within one hundred twenty (120) days following the resolution giving of such claim may not occur until after Notice, 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 Survival Overall Limitation Period. The Limitation Period and shall apply to known as well as unknown breaches of such Seller's Representations; provided that, the Survival Period Closing shall be deemed to be tolled with respect to (and only with respect to) any claim constitute a waiver of which Seller receives notice before the expiration of the Survival Period. Seller shall have no liability to Buyer for any breach of such representations, warranties, covenants which Buyer is deemed to know or under any indemnities of Seller contained herein (other than had actual knowledge as set forth below in the penultimate sentence of this Section 12.2) unless and until Buyer’s actual out-of-pocket loss from such breach and/or under such indemnities (or aggregate losses from all such breaches and/or under such indemnities) exceeds $50,000 (at which point Seller shall be liable for the full amount of the damages, 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 set forth below in the penultimate sentence of this Section 12.2) exceed two percent (2%) of the Purchase PriceClosing Date. Buyer hereby acknowledges and 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 the limitations and restrictions set forth herein, shall be Buyer's sole and exclusive remedy against Seller (or any Affiliate of Seller) for 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 Transaction, and that in no event shall Buyer not have the right to initiate any bring a cause of action for a breach of a Seller's Representation unless the damage to Buyer on account of such breach (individually or when combined with damages from other action breaches) equals or remedy against Seller ./-/5-2-19// 21 3285553_2 exceeds Twenty-Five Thousand and No/100 Dollars (or any Affiliate of Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for rescission of its acquisition of the Property. Except as set forth in the Side Letter, each party hereto hereby waives its rights to recover from the other party indirect, punitive, exemplary$25,000.00), and speculative damages. For Buyer agrees that the avoidance post-Closing maximum liability of doubt, Seller for the Survival Period alleged breach of any or all Seller's Representation and/or any Post-Closing Default is limited to One Million and the foregoing 2% liability cap and No/100 Dollars ($50,000 basket shall not apply to any breach by Seller of the representations and warranties 1,000,000.00) as more particularly set forth in Section 15.11, any breach by Seller of any post-Closing covenant or agreement set forth in Section 4.28(b14(m)(ii), Section 6.2, Section 15.13, Section 15.14, Section 15.19 or any Closing adjustments or prorations to be made pursuant to Article XIV of this Agreement. This Section 12.2 shall survive Closing or Termination of this Agreement.

Survival and Limitations. Except as otherwise expressly provided herein, (i) The parties agree that Seller’s representations and warranties contained in this Agreement and in any claims for breach of the representations, warranties, covenants document executed by Seller pursuant to this Agreement shall expire and claims under the indemnities of Seller contained herein shall be made within two of no further force or effect as of one hundred seventy twenty (270120) days following the Closing Date (the “Survival Limitation Period”). If Buyer, otherwise they shall irrevocably 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 deemed to have been waived by Buyer. Notwithstanding the foregoing or anything to the contrary hereincured within thirty (30) days, Seller acknowledges and agrees that the resolution of shall be provided with an additional reasonable time period to cure such claim may breach not occur until after to exceed the expiration of the Survival 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 and (defined below). The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties, provided that consent to the Survival Period Closing by Buyer or Seller shall be deemed to be tolled with respect to (and only with respect to) any claim constitute a waiver of which Seller receives notice before the expiration of the Survival Period. Seller shall have no liability to Buyer for 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 representationsparty on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $50,000.00, warranties, covenants or under any indemnities and Buyer agrees that the post-Closing maximum liability 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-of-pocket loss from such breach and/or under such indemnities (or aggregate losses from all such breaches and/or under such indemnities) exceeds $50,000 (at which point Seller shall be liable for the full amount alleged breach of the damages, including the $50,000); and provided further, that in no event shall Seller’s aggregate liability to Buyer for any or all such breaches and/or under such indemnities (other than as set forth below in the penultimate sentence of this Section 12.2) exceed two percent (2%) of the Purchase Price. Buyer hereby acknowledges and agrees that if the Closing occurs under this Agreement, then Buyer's remedies representations or warranties set forth in this Article XII, and subject in all events to the limitations and restrictions set forth herein, shall be Buyer's sole and exclusive remedy against Seller (or Agreement and/or any Affiliate of Seller) for 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 Transaction, and that in no event shall Buyer have the right to initiate any other action or remedy against Seller (or any Affiliate of Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for rescission of its acquisition of the Property. Except as set forth in the Side Letter, each party hereto hereby waives its rights to recover from the other party indirect, punitive, exemplary, and speculative damages. For the 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 the representations and warranties set forth in Section 15.11, any breach by Seller of any postPost-Closing 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 Default is limited to be made pursuant to Article XIV of this Agreement. This Section 12.2 shall survive Closing or Termination of this Agreement$250,000.00.

Survival and Limitations. Except as otherwise expressly provided herein, any claims for breach The provisions of this Article 14 shall survive the representations, warranties, covenants Closing. The warranties and claims under the indemnities representations of Seller contained herein in this Agreement 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 made within two hundred seventy (270) days following the Closing Date (the “Survival Period”)effective with respect to any inaccuracy therein or breach thereof, otherwise they notice of which shall irrevocably be deemed to have been waived by Buyerduly 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. Notwithstanding the foregoing or anything Anything to the contrary hereincontained herein notwithstanding, (i) Purchaser shall not assert any claim against Seller acknowledges for indemnification hereunder unless and agrees that until the resolution amount of such claim may or claims shall exceed One Hundred Thousand Dollars ($100,000) calculated on a cumulative basis and not occur until after the expiration of the Survival Period and the Survival Period a per item basis, in which event Purchaser shall be deemed entitled to be tolled with respect to (and claim only with respect to) any claim of which Seller receives notice before the expiration of the Survival Period. Seller shall have no liability to Buyer for any breach amount of such representations, warranties, covenants or under any indemnities of excess; (ii) Purchaser shall not be entitled to recover from Seller contained herein (other more than as set forth below in the penultimate sentence of this Section 12.2) unless and until Buyer’s actual out-of-pocket loss from such breach and/or under such indemnities (or an aggregate losses from all such breaches and/or under such indemnities) exceeds $50,000 (at which point Seller shall be liable for the full amount of the damages, including the $50,000); and provided further, that in no event shall Seller’s aggregate liability equal to Buyer for all such breaches and/or under such indemnities (other than as set forth below in the penultimate sentence of this Section 12.2) exceed two twenty five percent (225%) of the total Purchase Price. Buyer hereby acknowledges and agrees that if the Closing occurs Price with respect to all claims for indemnity or damages whether such claims are brought under this Agreement, then Buyer's remedies set forth in this Article XII, and subject in all events to the limitations and restrictions set forth herein, shall be Buyer's sole and exclusive remedy against Seller (14 or any Affiliate of Seller) for 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 Transaction, and that in no event shall Buyer have the right to initiate any other action or remedy against Seller (or any Affiliate of Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for rescission of its acquisition otherwise. The terms of the Property. Except as set forth in the Side Letter, each party hereto hereby waives its rights to recover from the other party indirect, punitive, exemplary, and speculative damages. For the avoidance of doubt, the Survival Period and the foregoing 2% liability cap and $50,000 basket sentence shall not apply to any breach by Seller of Seller's' obligation to provide indemnification to Purchaser with respect to the representations and warranties matters set forth in Section 15.113.2 (Retained Liabilities), Article 6 (Employees and Employee Benefits) and Section 14.6 (Environmental) and any breach matter to be performed by Seller of any post-subsequent to the Closing covenant Date or agreement set forth in Section 4.28(b)Inventory Closing Date, Section 6.2as applicable, Section 15.13, Section 15.14, Section 15.19 pursuant to this Agreement or any Closing adjustments or prorations to be made document delivered by Seller pursuant to Article XIV of this Agreement. This Section 12.2 shall survive Closing or Termination of this Agreement1.2.

Survival and Limitations. Except as otherwise expressly provided herein, (i) The parties agree that Seller’s representations and warranties contained in this Agreement and in any claims for breach of the representations, warranties, covenants document executed by Seller pursuant to this Agreement shall expire and claims under the indemnities of Seller contained herein shall be made within two hundred seventy of no further force or effect as of twelve (27012) days months following the Closing Date (the “Survival Limitation Period”). If Buyer, otherwise they shall irrevocably 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 sixty (60) days following the giving of such Notice (or, if such breach or Post-Closing Default cannot reasonably be deemed to have been waived by Buyer. Notwithstanding the foregoing or anything to the contrary hereincured within sixty (60) days, Seller acknowledges shall be provided with an additional reasonable time period to cure such breach, so long as such cure has been commenced within such sixty (60) days and agrees that the resolution of such claim may not occur until after has been diligently pursued), 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 Survival Overall Limitation Period and (defined below). The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties; provided that, consent to the Survival Period Closing by Buyer or Seller shall be deemed to be tolled with respect to (and only with respect to) any claim constitute a waiver of which Seller receives notice before the expiration of the Survival Period. Seller shall have no liability to Buyer for 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 claim against Buyer on account of such representations, warranties, covenants breach (individually or under any indemnities when combined with claims from other breaches) equals or exceeds $250,000.00 and Buyer agrees that the post-Closing maximum liability 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-of-pocket loss from such breach and/or under such indemnities (or aggregate losses from all such breaches and/or under such indemnities) exceeds $50,000 (at which point Seller shall be liable for the full amount alleged breach of the damages, including the $50,000); and provided further, that in no event shall Seller’s aggregate liability to Buyer for any or all such breaches and/or under such indemnities (other than as set forth below in the penultimate sentence of this Section 12.2) exceed two percent (2%) of the Purchase Price. Buyer hereby acknowledges and agrees that if the Closing occurs under this Agreement, then Buyer's remedies representations or warranties set forth in this Article XII, and subject in all events Agreement and/or any Post-Closing Default is limited to the limitations and restrictions set forth herein, shall be Buyer's sole and exclusive remedy against Seller (or any Affiliate of Seller) for 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 Transaction, and that in no event shall Buyer have the right to initiate any other action or remedy against Seller (or any Affiliate of Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for rescission of its acquisition of the Property. Except $10,470,000.00 as set forth in the Side Letter, each party hereto hereby waives its rights to recover from the other party indirect, punitive, exemplary, and speculative damages. For the 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 the representations and warranties more particularly set forth in Section 15.11, any breach by Seller of any post-Closing 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 be made pursuant to Article XIV of this Agreement. This Section 12.2 shall survive Closing or Termination of this Agreement14(q)(ii) immediately below.