Common use of Survival; Limitation of Liability Clause in Contracts

Survival; Limitation of Liability. Unless otherwise expressly stated in this Agreement, each of the covenants, obligations, representations, and agreements contained in this Agreement shall survive the Closing and the execution and delivery of the Closing documents required hereunder only for a period of 9 months immediately following the Closing Date, except in the event Buyer provides Seller with written notice of any claims prior to the end of such 9-month period, and commences an action with regard thereto within 60 days following the expiration of said 9-month period, in which event Seller’s liability hereunder shall continue with respect to such claims until such time as (i) such claim(s) have been adjudicated by a court of competent jurisdiction resulting in a final, non-appealable judgment (or, alternatively, the party entitled to appeal any judgment has waived the right to do so in writing), or (ii) such claims have been settled pursuant to a written settlement agreement between Seller and Buyer; provided, however the indemnification provisions of Sections 2.2, 6.3 and 6.5 and the provisions of Section 6.1(e) shall survive the termination of this Agreement or the Closing, whichever occurs, and shall not be merged, until the applicable statute of limitations with respect to any claim, cause of action, suit or other action relating thereto shall have fully and finally expired. Any claim based upon a misrepresentation or a breach of a warranty contained in Article 7 of this Agreement shall be actionable or enforceable if and only if: (i) notice of such claim is given to the party which allegedly made such misrepresentation or breached such covenant, obligation, warranty or agreement within 9 months after the Closing Date; (ii) the aggregate amount of damages or losses as a result of all such claims suffered or sustained by the party making such claim is estimated to exceed $30,000; provided, however, if such claims equal or exceed $30,000, Buyer shall have the right to prosecute claims in the full amount thereof, and provided further that the aggregate liability of Seller for any and all such breaches or misrepresentation shall be limited to an amount equal to 3% of the Purchase Price exclusive of fees, costs, charges and expenses due pursuant to Section 10.10 herein below.

Survival; Limitation of Liability. Unless otherwise expressly stated in this Agreement, each of the covenants, obligations, representations, and agreements contained in this Agreement shall survive the Closing and the execution and delivery of the Closing documents required hereunder only for a period of 9 nine (9) months immediately following the Closing Date, except in the event Buyer provides Seller with written notice of any claims prior to the end of such 9-month period, and commences an action with regard thereto within 60 sixty (60) days following the expiration of said 9-month period, in which event Seller’s liability hereunder shall continue with respect to such claims until such time as (i) such claim(s) have been adjudicated by a court of competent jurisdiction resulting in a final, non-appealable judgment (or, alternatively, the party entitled to appeal any judgment has waived the right to do so in writing), or (ii) such claims have been settled pursuant to a written settlement agreement between Seller and BuyerBuyer (said 9-month survival period, as same may be continued and extended hereunder, shall be referred to herein as the “Survival Period”); provided, however however, notwithstanding anything set forth in this Agreement to the contrary, the indemnification provisions of Sections 2.2, 6.3 6.5, 10.22 and 6.5 10.23 and the provisions of Section 6.1(eArticle 6 (except as otherwise expressly provided to the contrary therein) shall survive the termination of this Agreement or the Closing, whichever occurs, and shall not be merged, until the applicable statute of limitations with respect to any claim, cause of action, suit or other action relating thereto shall have fully and finally expired. Any claim based upon a misrepresentation or a breach of a warranty contained in Article 7 of this Agreement shall be actionable or enforceable if and only if: (i) notice of such claim is given to the party which allegedly made such misrepresentation or breached such covenant, obligation, warranty or agreement within 9 nine (9) months after the Closing Date; and (ii) the aggregate amount of damages or losses as a result of all such claims suffered or sustained by the party making such claim is estimated to exceed $30,00075,000; provided, however, if such claims equal or exceed $30,00075,000, Buyer shall have the right to prosecute claims in the full amount thereof, and provided further that the aggregate liability of Seller for any and all such breaches or misrepresentation shall be limited to an amount equal to 3% two percent (2%) of the Purchase Price exclusive of fees, costs, charges and expenses due pursuant to Section 10.10 herein below10,13 hereinbelow. Seller shall cause KPJV, LP, a Delaware limited partnership and the sole member of Seller, to retain and maintain a direct or indirect tangible net worth of not less than two percent (2%) of the Purchase Price through the expiration of the Survival Period, provided that the tangible net worth of KPJV, LP may be reduced following the initial nine (9) months of the Survival Period to that amount reasonably necessary to satisfy any claims made during such initial nine (9) month period, if any.

Survival; Limitation of Liability. Unless otherwise expressly stated in this Agreement, each of the covenants, obligations, representations, and agreements contained in this Agreement shall survive the Closing and the execution and delivery of the Closing documents required hereunder only for a period of 9 months immediately following the Closing Date, except in the event Buyer provides Seller with written notice of any claims prior to the end of such 9-month period, and commences an action with regard thereto within 60 days following the expiration of said 9-month period, in which event Seller’s liability hereunder shall continue with respect to such claims until such time as (i) such claim(s) have been adjudicated by a court of competent jurisdiction resulting in a final, non-appealable judgment (or, alternatively, the party entitled to appeal any judgment has waived the right to do so in writing), or (ii) such claims have been settled pursuant to a written settlement agreement between Seller and Buyer; provided, however the indemnification provisions of Sections 2.2, 6.3 and 6.5 6.4 and the provisions of Section Sections 5.10 and 6.1(e) shall survive the termination of this Agreement or the Closing, whichever occurs, and shall not be merged, until the applicable statute of limitations with respect to any claim, cause of action, suit or other action relating thereto shall have fully and finally expired. Any claim based upon a misrepresentation or a breach of a warranty contained in Article 7 of this Agreement shall be actionable or enforceable if and only if: (i) notice of such claim is given to the party which allegedly made such misrepresentation or breached such covenant, obligation, warranty or agreement within 9 months after the Closing Date; and (ii) the aggregate amount of damages or losses as a result of all such claims claim suffered or sustained by the party making such claim is estimated to exceed exceeds $30,000100,000; provided, however, if such claims equal or exceed $30,000, Buyer shall have the right to prosecute claims in the full amount thereof, and provided further that the aggregate liability of Seller for any and all such breaches or misrepresentation shall be limited to an amount equal to 34% of the Purchase Price exclusive (exclusive, however, of feesSeller’s obligations with respect to the Punch List Work as described in Section 5.10 above, costswhich shall be obligations of Seller separate and apart from Seller’s liability under this Section 10.6). The parties acknowledge and agree that, charges and expenses due pursuant with respect to Section 10.10 herein belowItem (ii) above, once the $100,000 claim threshold is met, Buyer shall be entitled to claim for the full amount of the loss, subject to Seller’s maximum liability limitation set forth in such Item (ii).