This office lease guaranty states that until all obligations of the tenant are fully performed and the lease has expired or terminated, all claims that the guarantor may have against the tenant are subordinated to the landlord's claims against the tenant.
Delaware Subordination and Deferral of the Guarantors Claims Against the Tenant
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§ 5308. Essential services; landlord obligation and tenant remedies. (2) Upon written notice to the landlord, keep 2/3 per diem rent accruing during any period when hot water, heat, water, electricity or equivalent substitute housing is not supplied.
Generally, these clauses are enforceable. Parties can generally exclude their liability for certain acts or types of damages, as Linda explained.
You may have limits on your liability such as "Company will not be liable for more than $200 in the event of a breach," or "Company will not be liable for more than three times the yearly subscription fee."
A limitation of liability clause serves to limit the amount and types of compensation one party can recover from the other party. It caps the liability incurred by one party and reduces the risk of a claim by the other party.
A landlord often includes an exculpation clause to limit its liability under the lease to the landlord's interest in the property. A pro-landlord lease may also disclaim any landlord liability except for cases of the landlord's gross negligence or willful misconduct.
The High Court said that the effect of the law was that tenants are precluded by law from assigning their lease to their guarantor.
The primary effect of an SNDA is that the tenant agrees to subordinate its lease to the mortgage in exchange for the lender agreeing not to disturb the tenant if the lender forecloses its superior security interest in the real property.
Negotiating limitation of liability clauses requires a comprehensive understanding of each party's risk exposure and a careful balance between risk allocation and maintaining a mutually beneficial agreement.
