APPLICABLE SURVIVAL DATE, TO SUE
SUCH SELLER FOR ACTUAL DIRECT DAMAGES INCURRED BY BUYER AS A RESULT OF SUCH
BREACH OR BREACHES.
HOWEVER, IN THE EVENT OF A CLAIM FOR A BREACH OF
REPRESENTATION OR WARRANTY, NO INDIVIDUAL SELLER SHALL HAVE ANY LIABILITY TO
BUYER FOR ALL OR ANY OF SUCH MATTERS IN EXCESS OF *** ******* (**) OF THE
******* ***** ALLOCATED TO SUCH ******** ******** (THE "************ ******
***") AND NO CLAIM FOR BREACH OF A REPRESENTATION OR WARRANTY MAY BE MADE UNLESS
THE CLAIMS, INDIVIDUALLY OR IN THE AGGREGATE, SHALL BE IN EXCESS OF **** ** ***
**** ******* ****** *** *** **** ******** (THE "******* ******") AFTER TAKING
INTO ACCOUNT ALL PRIOR CLAIMS AND THEN ONLY TO THE EXTENT SUCH CLAIMS ARE IN
EXCESS OF THE ******* ******, AND THEN ONLY TO THE EXTENT OF THE EXCESS OVER THE
******* ******.
BUYER SHALL NOT ENTER ANY JUDGMENT OR COLLECT AN AMOUNT IN
EXCESS OF THE ************ ****** *** FOR A BREACH OF A REPRESENTATION OR
WARRANTY.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF BUYER
HAD KNOWLEDGE OF A DEFAULT BY A SELLER ON THE CLOSING DATE AND BUYER ELECTS TO
CLOSE THE TRANSACTION CONTEMPLATED HEREIN, BUYER SHALL BE DEEMED TO HAVE
IRREVOCABLY WAIVED SUCH DEFAULT AND SELLERS SHALL NOT HAVE ANY LIABILITY WITH
RESPECT TO SUCH DEFAULT.
FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, THE ************ ****** *** AND THE MINIMUM AMOUNT SHALL NOT
APPLY TO A BREACH OF ANY SELLER COVENANTS TO APPORTION OR PAY FUNDS AFTER
CLOSING PURSUANT TO ARTICLES VI, XI AND XVI HEREIN OR SELLER INDEMNITIES FOR
INVESTMENT BANKER BROKER CLAIMS PURSUANT TO ARTICLE XVIII BELOW OR PAY FOR
ATTORNEYS' FEES PURSUANT TO SECTION 24.10 BELOW.
SECTION 14.5.
LIMITATION ON SELLER'S DEFAULT.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY, A SELLER'S INABILITY TO SATISFY A CONDITION OF THIS AGREEMENT
SHALL NOT BE CONSIDERED A DEFAULT BY SUCH SELLER HEREUNDER UNLESS SUCH INABILITY
RESULTS FROM THE BREACH OF SUCH SELLER'S EXPRESS OBLIGATIONS HEREUNDER.
SECTION 14.6.
TERMINATION OF THE RELATED PURCHASE AGREEMENTS.
IN THE
EVENT EITHER BUYER OR AN AFFILIATE OF SELLER TERMINATES ANY RELATED PURCHASE
AGREEMENT PURSUANT TO THE TERMS THEREOF OTHER THAN BY REASON OF A DEFAULT BY
SELLERS OR SELLERS' AFFILIATES
44
THEREUNDER, SELLERS SHALL HAVE THE RIGHT EITHER TO TERMINATE THIS AGREEMENT WITH
RESPECT TO ONE OR MORE PORTFOLIOS, OR TO TERMINATE THIS AGREEMENT IN ITS
ENTIRETY, AND NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATION TO THE OTHER,
EXCEPT (I) AS PROVIDED IN SECTION 14.1 HEREOF, (II) AND THOSE OBLIGATIONS THAT
EXPRESSLY SURVIVE TERMINATION.
SECTION 14.7.
SELLERS' POST CLOSING OBLIGATIONS.
AT CLOSING BUYER AND
EACH SELLER SHALL ENTER INTO AN ESCROW HOLDBACK AGREEMENT (EACH A "POST CLOSING
ESCROW HOLDBACK AGREEMENT") PURSUANT TO WHICH EACH SELLER SHALL DEPOSIT AN
AMOUNT EQUAL TO *** ******* (****) ** *** ******** ***** ALLOCABLE TO SUCH
SELLER'S PROPERTY WITH ESCROW HOLDER, TO BE HELD IN A SEPARATE INTEREST-BEARING
ACCOUNT UNTIL ******** **, ****.
NO ACCOUNT OF ANY SELLER SHALL BE AVAILABLE TO
SATISFY CLAIMS