Common use of Knowledge; Breach Clause in Contracts

Knowledge; Breach. (a) For all purposes of this Agreement, including Section 7.2, “knowledge” with respect to Seller or the CLSB II Assignor shall mean matters as to which Dxxxx Xxxx, Rxxxxx X. Xxxxx or Gxxxxx Xxxxxxxxx have actual knowledge without any duty or responsibilities to make any inquiry, review or investigation. (b) As used in this Agreement the phrase “deemed to know” (or words of similar import) shall have the following meaning: Purchaser shall be “deemed to know” that a representation or warranty of Seller or CLSB II Assignor (other than the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), or (b)(iv)(a) of Section 7.2) is untrue, inaccurate or incorrect to the extent that this Agreement, the Reports, Due Diligence Materials, documents, studies, reports and other information made available by Seller or CLSB II Assignor to Purchaser or its agents prior to the commencement of the Restricted Period, or any Certificate contains information which is inconsistent with such representation or warranty. (c) Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and the Schedules and Exhibits attached hereto and amend and otherwise modify the representations and warranties made by Seller and the CLSB II Assignor prior to the commencement of the Restricted Period by written notice thereof to Purchaser, and if Purchaser fails to terminate this Agreement as provided in Section 5.2, this Agreement shall conclusively be deemed amended to incorporate all such amendments and modifications. Following the commencement of the Restricted Period and prior to the Closing, Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and the Schedules and Exhibits attached hereto and amend and otherwise modify the representations and warranties made by Seller and CLSB II Assignor by written notice thereof to Purchaser (an “Update”). With respect to any Update, Purchaser shall have five (5) Business Days (the “Update Termination Period”) commencing upon Purchaser’s receipt of written notice of such Update, during which Purchaser may terminate this Agreement (except for the Surviving Obligations), but only on account of such Update, by written notice to Seller and receive a refund of the Deposit. In the event that any Update Termination Period commences less than five (5) Business Days prior to the Closing, then the Closing may be adjourned by Purchaser for a period of up to five (5) Business Days such that Purchaser may review such Update and the Closing shall be adjourned until the next Business Day following the expiration of such period. In the event that Purchaser does not terminate this Agreement during an applicable Update Termination Period, then Purchaser shall have no right to terminate this Agreement on account of such Update, and this Agreement shall conclusively be deemed amended to incorporate such Update. (d) Seller, CLSB II Assignor and Purchaser agree that, each shall, subject always to Article 10 and the limitations set forth therein, be liable for the direct, but not consequential or punitive, damages resulting from any breach of its representations and warranties expressly set forth in Article 7 hereof or in any document or certificate delivered in connection herewith; provided, however, that: (i) such representations and warranties are personal to Seller, CLSB II Assignor and Purchaser and, notwithstanding any other provision of this Agreement, may not be assigned to or enforced by any other Person; provided, however, that Purchaser may assign the Seller Representations and Purchaser’s rights under this Article 7 to any Permitted Assignee; and (ii) the representations and warranties of Seller and CLSB II Assignor set forth in this Agreement or expressly set forth as such in any document or certificate delivered by Seller or CLSB II Assignor in connection herewith shall survive the Closing for a period of nine (9) months such period of time being the “Claim Period”), and no action or proceeding thereon shall be valid or enforceable, at law or in equity, unless (x) Purchaser provides written notice of any potential claim to Seller and CLSB II Assignor within the Claim Period, which notice shall describe such potential claim in reasonable detail based upon the information available to Purchaser at such time and (y) a legal proceeding is commenced within forty-five (45) days after Seller’s or CLSB II Assignor’s, as the case may be, receipt of such notice. Notwithstanding the foregoing, Seller and CLSB II Assignor shall have no liability for any such breach: (a) regarding which Purchaser or its attorneys, agents or consultants are deemed to know the facts or circumstances prior to Closing; or (b) that was disclosed in this Agreement or any exhibit hereto, in the Due Diligence Materials, or in any other document, study or report delivered or made available by Seller or CLSB II Assignor to Purchaser or its attorneys, consultants or agents at or before the Closing (provided that the provisions of this clause (b) shall not apply to the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), or (b)(iv)(a) of Section 7.2). Purchaser further agrees that no claim may or shall be made for any alleged breach of any representations or warranties made by Seller or CLSB II Assignor under or relating to this Agreement unless the amount of such claim or claims, individually or in the aggregate, exceeds the Threshold Amount, and such claim or claims shall never, individually or in the aggregate shall never exceed the Damage Cap.

Knowledge; Breach. (a) For all purposes of this Agreement, including Section 7.2Sections 7.3 and 7.4, “knowledge” with respect to either Seller or the CLSB II Assignor shall mean matters as to which Dxxxx Xxxx, Rxxxxx Xxxxxx X. Xxxxx or Gxxxxx Xxxxxxxxx have Xxxxxx has actual knowledge without any duty or responsibilities to make any inquiry, review or investigation. (b) As used in this Agreement the phrase “deemed to know” (or words of similar import) shall have the following meaning: Purchaser shall be “deemed to know” that a representation or warranty of Seller or CLSB II Assignor (other than the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), or (b)(iv)(a) of Section 7.2) is untrue, inaccurate or incorrect to the extent that this Agreement, the Reports, the Due Diligence Materials, documents, studies, reports and other information Materials made available by Seller or CLSB II Assignor to Purchaser or its agents before the Effective Date, any materials available on Vertex’s website (the homepage of which is accessible at xxx.xxxx.xxx) prior to the commencement of the Restricted Period, Effective Date or any Certificate contains information which is inconsistent with such representation or warranty. (c) The representations and warranties contained in this Agreement shall be deemed remade as of the Closing Date as if first made on and as of the Closing Date. Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and Certificates, the Schedules and Exhibits attached hereto and amend and otherwise modify Rent Roll and/or the representations and warranties made by Seller and the CLSB II Assignor prior to the commencement of the Restricted Period by written notice thereof to Purchaser, and if Purchaser fails to terminate this Agreement as provided in Section 5.2, this Agreement shall conclusively be deemed amended to incorporate all such amendments and modifications. Following the commencement of the Restricted Period and prior to the Closing, Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and the Schedules and Exhibits attached hereto and amend and otherwise modify the representations and warranties made by Seller and CLSB II Assignor by written notice thereof to Purchaser (an “Update”). With respect to any UpdateUpdate that has or is reasonably likely to have an adverse effect in any material respect on the Property or the Purchaser, as determined in Purchaser’s reasonable discretion, Purchaser shall have five (5) Business Days (the “Update Termination Period”) commencing upon Purchaser’s receipt of written notice of such Update, Update during which Purchaser may terminate this Agreement (except for the Surviving Obligations), but only on account of such Update, by written notice to Seller and Seller, in which event Purchaser shall receive a refund of the Deposit. In the event that any Update Termination Period commences less than five (5) Business Days prior to the Closing, then the Closing may be adjourned by Purchaser for a period of up to five (5) Business Days such that Purchaser may review such Update and the Closing shall be adjourned until the next Business Day following the expiration of such period. In the event that Purchaser has a right to terminate this Agreement on account of an Update and Purchaser does not terminate this Agreement during an the applicable Update Termination Period, then Purchaser shall have no further right to terminate this Agreement on account of such Update, Update and this Agreement shall conclusively be deemed amended to incorporate such Update; provided, however, if Purchaser does not have a right to terminate the Agreement on account of such Update, Purchaser shall have all rights and remedies available to it under this Agreement as though no such Update were provided notwithstanding anything in this Agreement to the contrary. (d) Seller, CLSB II Assignor Seller and Purchaser agree that, that each shall, subject always to Article 10 11 and the limitations set forth therein, be liable for the direct, but not consequential consequential, special, punitive or punitiveindirect, damages resulting from any breach of its representations and warranties expressly set forth in Article 7 hereof this Agreement or in any document or certificate delivered in connection herewith; provided, however, that: (A) (i) such representations and warranties are personal to Seller, CLSB II Assignor Seller and Purchaser and, notwithstanding any other provision of this Agreement, may not be assigned to or enforced by any other Person; provided, however, that Purchaser may assign the Seller Representations and Purchaser’s rights under this Article 7 to any Permitted Assignee; and (ii) the representations and warranties of Seller and CLSB II Assignor set forth in this Agreement or expressly set forth as such in any document or certificate delivered by Seller or CLSB II Assignor Purchaser in connection herewith shall survive the Closing for a period of nine (9) months (such period of time being the “Claim Period”) (provided that the non-breaching Party shall be entitled to continue to pursue a claim after the Claim Period if (1) the non-breaching Party asserts such claim pursuant to this Section 7.5(d) prior to the expiration of the Claim Period and (2) thereafter diligently prosecutes such claim in accordance with this Section 7.5(d)), and (B) no action or proceeding thereon shall be valid or enforceable, at law or in equity, by the non-breaching Party unless (xy) Purchaser with respect to any claim of which the non-breaching Party or its attorneys, consultants or agents has or obtains actual knowledge (or is deemed to have knowledge) prior to Closing but for which the non-breaching Party does not have a right to terminate this Agreement or otherwise not proceed with Closing pursuant to this Agreement on account thereof, (i) the non-breaching Party provides written notice of any such potential claim to Seller the breaching Party not less than ten (10) Business Days prior to Closing (or, with respect to any claim of which the non-breaching Party first has or obtains actual knowledge less than ten (10) Business Days prior to Closing, the non-breaching Party provides such written notice to the breaching Party at Closing), which notice shall describe such potential claim in reasonable detail based upon the information available to the non-breaching Party at such time, (ii) the breaching Party does not cure such breach or failure to perform, (iii) the Closing is consummated and CLSB II Assignor (iv) a legal proceeding is commenced by the non-breaching Party with respect to such potential claim within forty-five (45) days after the Claim Period, or (z) with respect to any other claim, the non-breaching Party provides written notice of such potential claim to the breaching Party within the Claim Period, which notice shall describe such potential claim in reasonable detail based upon the information available to Purchaser the non-breaching Party at such time time, and (y) a legal proceeding is commenced by the non-breaching Party with respect to such potential claim within forty-five (45) days after Seller’s or CLSB II Assignor’s, as the case may be, receipt of such noticeClaim Period. Notwithstanding the foregoing, Seller and CLSB II Assignor the breaching Party shall have no liability for any such breach: (a) regarding which Purchaser the non-breaching Party or its attorneys, agents or consultants are deemed to know the facts or circumstances prior to Closing; Closing and for which the non-breaching Party has a right to terminate this Agreement or otherwise not proceed to Closing or (b) that was disclosed in this Agreement or any exhibit Exhibit or Schedule hereto, in the Due Diligence Materials, in any materials available on Vertex’s website (the homepage of which is accessible at xxx.xxxx.xxx) prior to the Effective Date, in the Title Commitment or Title Policy, or in any other document, study consultant reports prepared for the non-breaching Party or report in any Certificate or Updated Certificates delivered or made available by Seller or CLSB II Assignor to Purchaser or its attorneys, consultants or agents at or before the Closing (provided that the provisions of in accordance with this clause (b) shall not apply to the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), or (b)(iv)(a) of Section 7.2)Agreement. Purchaser The non-breaching Party further agrees that no claim may or shall be made for any alleged breach of any representations or warranties made by Seller or CLSB II Assignor the breaching Party under or relating to this Agreement unless the amount of such claim or claims, individually or in the aggregate, exceeds the Threshold Amount, and such claim or claims shall never, individually or in the aggregate shall never aggregate, exceed the Damage Cap.

Knowledge; Breach. (a) For all purposes of this Agreement, including Section 7.2, “knowledge” with respect to each of the entities included in the term Seller or the CLSB II Assignor shall mean matters as to which Dxxxx Xxxx, Rxxxxx X. Xxxxx or Gxxxxx Xxxxxxxxx have actual knowledge without any duty or responsibilities to make any inquiry, review or investigation. (b) As used in this Agreement the phrase “deemed to know” (or words of similar import) shall have the following meaning: Purchaser shall be “deemed to know” that a representation or warranty of Seller or CLSB II Assignor (other than the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii), (b)(viii) or (b)(iv)(ac)(v) of Section 7.2) is untrue, inaccurate or incorrect to the extent that this Agreement, the Reports, Due Diligence Materials, documents, studies, reports and other information made available by Seller or CLSB II Assignor to Purchaser or its agents prior to the commencement of the Restricted Period, or any Certificate contains information which is inconsistent with such representation or warranty. (c) Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and the Schedules and Exhibits attached hereto and amend and otherwise modify the representations and warranties made by Seller and the CLSB II Assignor prior to the commencement of the Restricted Period by written notice thereof to Purchaser, and if Purchaser fails to terminate this Agreement as provided in Section 5.2, this Agreement shall conclusively be deemed amended to incorporate all such amendments and modifications. Following the commencement of the Restricted Period and prior to the Closing, Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and the Schedules and Exhibits attached hereto and amend and otherwise modify the representations and warranties made by Seller and CLSB II Assignor by written notice thereof to Purchaser (an “Update”). With respect to any Update, Purchaser shall have five (5) Business Days (the “Update Termination Period”) commencing upon Purchaser’s receipt of written notice of such Update, during which Purchaser may terminate this Agreement (except for the Surviving Obligations), but only on account of such Update, by written notice to Seller and receive a refund of the Deposit. In the event that any Update Termination Period commences less than five (5) Business Days prior to the Closing, then the Closing may be adjourned by Purchaser for a period of up to five (5) Business Days such that Purchaser may review such Update and the Closing shall be adjourned until the next Business Day following the expiration of such period. In the event that Purchaser does not terminate this Agreement during an applicable Update Termination Period, then Purchaser shall have no right to terminate this Agreement on account of such Update, and this Agreement shall conclusively be deemed amended to incorporate such Update. (d) Seller, CLSB II Assignor Seller and Purchaser agree that, each shall, subject always to Article 10 and the limitations set forth therein, be liable for the direct, but not consequential or punitive, damages resulting from any breach of its representations and warranties expressly set forth in Article 7 hereof or in any document or certificate delivered in connection herewith; provided, however, that: (i) such representations and warranties are personal to Seller, CLSB II Assignor Seller and Purchaser and, notwithstanding any other provision of this Agreement, may not be assigned to or enforced by any other Person; provided, however, that Purchaser may assign the Seller Representations and Purchaser’s rights under this Article 7 to any Permitted Assignee; and (ii) the representations and warranties of Seller and CLSB II Assignor set forth in this Agreement or expressly set forth as such in any document or certificate delivered by Seller or CLSB II Assignor in connection herewith shall survive the Closing for a period of time expiring on the earlier of (x) nine (9) months following the Closing or (y) December 31, 2007 (such period of time being the “Claim Period”), and no action or proceeding thereon shall be valid or enforceable, at law or in equity, unless (x) Purchaser provides written notice of any potential claim to Seller and CLSB II Assignor within the Claim Period, which notice shall describe such potential claim in reasonable detail based upon the information available to Purchaser at such time and (y) a legal proceeding is commenced within forty-five (45) days after Seller’s or CLSB II Assignor’s, as the case may be, receipt of such notice. Notwithstanding the foregoing, Seller and CLSB II Assignor shall have no liability for any such breach: (a) regarding which Purchaser or its attorneys, agents or consultants are deemed to know the facts or circumstances prior to Closing; or (b) that was disclosed in this Agreement or any exhibit hereto, in the Due Diligence Materials, or in any other document, study or report delivered or made available by Seller or CLSB II Assignor to Purchaser or its attorneys, consultants or agents at or before the Closing (provided that the provisions of this clause (b) shall not apply to the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii), (b)(viii) or (b)(iv)(ac)(v) of Section 7.2). Purchaser further agrees that no claim may or shall be made for any alleged breach of any representations or warranties made by Seller or CLSB II Assignor under or relating to this Agreement unless the amount of such claim or claims, individually or in the aggregate, exceeds the Threshold Amount, and such claim or claims shall never, individually or in the aggregate shall never exceed the Damage Cap.

Knowledge; Breach. (a) For all purposes of this Agreement, including Section 7.2, “knowledge” with respect to each of the entities included in the term Seller or the CLSB II Assignor shall mean matters as to which Dxxxx Xxxx, Rxxxxx X. Xxxxx or Gxxxxx Xxxxxxxxx have actual knowledge without any duty or responsibilities to make any inquiry, review or investigation. (b) As used in this Agreement the phrase “deemed to know” (or words of similar import) shall have the following meaning: Purchaser shall be “deemed to know” that a representation or warranty of Seller or CLSB II Assignor (other than the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(vi), (b)(vii) or (b)(iv)(ac)(v) of Section 7.2) is untrue, inaccurate or incorrect to the extent that this Agreement, the Reports, Due Diligence Materials, documents, studies, reports and other information made available by Seller or CLSB II Assignor to Purchaser or its agents prior to the commencement of the Restricted Period, or any Certificate contains information which is inconsistent with such representation or warranty. (c) Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and the Schedules and Exhibits attached hereto and amend and otherwise modify the representations and warranties made by Seller and the CLSB II Assignor prior to the commencement of the Restricted Period by written notice thereof to Purchaser, and if Purchaser fails to terminate this Agreement as provided in Section 5.2, this Agreement shall conclusively be deemed amended to incorporate all such amendments and modifications. Following the commencement of the Restricted Period and prior to the Closing, Seller and CLSB II Assignor shall have the right to amend and otherwise modify the Certificates and the Schedules and Exhibits attached hereto and amend and otherwise modify the representations and warranties made by Seller and CLSB II Assignor by written notice thereof to Purchaser (an “Update”). With respect to any Update, Purchaser shall have five (5) Business Days (the “Update Termination Period”) commencing upon Purchaser’s receipt of written notice of such Update, during which Purchaser may terminate this Agreement (except for the Surviving Obligations), but only on account of such Update, by written notice to Seller and receive a refund of the Deposit. In the event that any Update Termination Period commences less than five (5) Business Days prior to the Closing, then the Closing may be adjourned by Purchaser for a period of up to five (5) Business Days such that Purchaser may review such Update and the Closing shall be adjourned until the next Business Day following the expiration of such period. In the event that Purchaser does not terminate this Agreement during an applicable Update Termination Period, then Purchaser shall have no right to terminate this Agreement on account of such Update, and this Agreement shall conclusively be deemed amended to incorporate such Update. (d) Seller, CLSB II Assignor Seller and Purchaser agree that, each shall, subject always to Article 10 and the limitations set forth therein, be liable for the direct, but not consequential or punitive, damages resulting from any breach of its representations and warranties expressly set forth in Article 7 hereof or in any document or certificate delivered in connection herewith; provided, however, that: (i) such representations and warranties are personal to Seller, CLSB II Assignor Seller and Purchaser and, notwithstanding any other provision of this Agreement, may not be assigned to or enforced by any other Person; provided, however, that Purchaser may assign the Seller Representations and Purchaser’s rights under this Article 7 to any Permitted Assignee; and (ii) the representations and warranties of Seller and CLSB II Assignor set forth in this Agreement or expressly set forth as such in any document or certificate delivered by Seller or CLSB II Assignor in connection herewith shall survive the Closing for a period of time expiring on the earlier of (x) nine (9) months following the Closing or (y) December 31, 2007 (such period of time being the “Claim Period”), and no action or proceeding thereon shall be valid or enforceable, at law or in equity, unless (x) Purchaser provides written notice of any potential claim to Seller and CLSB II Assignor within the Claim Period, which notice shall describe such potential claim in reasonable detail based upon the information available to Purchaser at such time and (y) a legal proceeding is commenced within forty-five (45) days after Seller’s or CLSB II Assignor’s, as the case may be, receipt of such notice. Notwithstanding the foregoing, Seller and CLSB II Assignor shall have no liability for any such breach: (a) regarding which Purchaser or its attorneys, agents or consultants are deemed to know the facts or circumstances prior to Closing; or (b) that was disclosed in this Agreement or any exhibit hereto, in the Due Diligence Materials, or in any other document, study or report delivered or made available by Seller or CLSB II Assignor to Purchaser or its attorneys, consultants or agents at or before the Closing (provided that the provisions of this clause (b) shall not apply to the representations or warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(vi), (b)(vii) or (b)(iv)(ac)(v) of Section 7.2). Purchaser further agrees that no claim may or shall be made for any alleged breach of any representations or warranties made by Seller or CLSB II Assignor under or relating to this Agreement unless the amount of such claim or claims, individually or in the aggregate, exceeds the Threshold Amount, and such claim or claims shall never, individually or in the aggregate shall never exceed the Damage Cap.