Common use of Limitation of Seller's Representations Clause in Contracts

Limitation of Seller's Representations. The representations and warranties of Sellers contained in Section 7.1 are made as of the Effective Date. Prior to the date of the Closing, Sellers shall notify Buyer of any modifications to such representations that are required to make such representations true in all material respects, including any modifications arising from actions taken in compliance with Section 14. If any representation of Sellers herein, although true as of the Effective Date, is no longer true at the Closing as a result of a matter, event or circumstance beyond Sellers’ reasonable control, Buyer may not consider same as an event of default hereunder; but rather, in such case, Buyer may, at Buyer’s option and as Buyer’s sole and exclusive remedy, terminate this Agreement and have the Deposit refunded by Escrow Agent, whereupon the parties hereto shall have no further rights, obligations or liabilities with respect to each other hereunder, except for the any rights and obligations that expressly survive herein. The representations and warranties set forth in Section 7.1 and in Sellers’ Documents shall survive the Closing to the date (the “Representation Termination Date”) occurring six (6) months after the date of the Closing, at which time such representations and warranties shall terminate and be of no further force or effect, except for any claims made prior to the Representation Termination Date as hereinafter set forth; provided, however, that the representations and warranties set forth in Section 7.1.1 through 7.1.3 shall survive the Closing for a period of one (1) year after the Closing Date. All other representations and warranties made by Sellers in this Agreement, unless expressly provided otherwise, shall not survive the Closing. In order to make a claim for damages based on the inaccuracy of any of the representations or warranties of Sellers contained in Section 6.1 or in Sellers’ Documents, promptly after discovery of any such inaccuracy (but in any event prior to the Representation Termination Date), Buyer shall notify Sellers in writing (a “Misrepresentation Notice”) that Buyer has discovered the existence of an inaccuracy in a warranty or representation (such Misrepresentation Notice to describe the inaccuracy in reasonable detail). Thereupon, the claim set forth in such Misrepresentation Notice shall continue to survive until final resolution or settlement thereof. No post-Closing claim for breach of any representation or warranty of Sellers shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter that was known to Buyer prior to the Closing (from whatever source as a result of Buyer’s due diligence tests, investigations and inspections of the Property, or otherwise disclosed in the Review Materials or other reports or studies obtained by Buyer, or from a disclosure by Sellers or Sellers’ agents and employees). Where representations and warranties are made in this Agreement to “Sellers’ knowledge,” such phrase shall mean and be limited to the current actual knowledge of Xxxxxx X. Xxxxxx, the Executive Vice President of each of Sellers and Xxxxxx Xxxxx, a Vice President of each of Sellers, such individuals having responsibility for oversight of the management, leasing and operation of the Property (collectively, “Sellers’ Representatives”); provided, however, that neither Xxxxxx X. Xxxxxx or Xxxxxx Xxxxx shall have any personal liability in connection with, or arising out of, any representation made by Sellers in this Agreement. For purposes of the representations and warranties made by Sellers in this Agreement and/or Sellers’ Documents, (1) “Sellers’ knowledge” shall not include that of any independent contractor hired by Sellers and (2) notices received by any independent contractor hired by Sellers and not delivered by such contractor to Sellers shall not be deemed to have been received by Sellers. Furthermore, Sellers’ knowledge shall not include any implied, imputed or constructive knowledge of Sellers’ Representatives (or either of them) and shall not constitute any representation that Sellers’ Representatives have made or are obligated to make any independent investigation or have any implied duty to investigate any matters relating to this Agreement.

Limitation of Seller's Representations. The representations and warranties of Sellers Seller contained in Section 7.1 are made as of the Effective Datedate hereof. Prior to the date of the ClosingClosing and promptly upon learning of same, Sellers Seller shall notify Buyer of any modifications to such representations that or any other representation, warranty or covenant contained elsewhere in this Agreement and the schedules and exhibits annexed hereto which are required required, as the result of additional information coming to the knowledge of Seller or on account of the operation and management of the Property between the date hereof and the Closing, in order to make such representations representations, warranty or covenant and/or the schedules and exhibits annexed hereto true in all material respects, including any modifications . In the event the resulting cost or liability as required to be borne by Buyer arising from actions taken or in compliance connection with Section 14. If any representation such modification can, in the reasonable opinion of Sellers hereinSeller and Buyer, although true as of be estimated to exceed, in the Effective Dateaggregate, is no longer true at Five Million Dollars ($5,000,000.00) (the Closing as a result of a matter"Representation Modification Excess"), event in cost or circumstance beyond Sellers’ reasonable controlliability to Buyer, Buyer may not consider same elect to terminate this Agreement unless Seller agrees to either (x) deduct the Representation Modification Excess from the Purchase Price or (y) reflect the Representation Modification Excess as an a liability on the Closing Net Non-Cash Working Capital Statement. In the event that Buyer and Seller are unable to mutually agree on a determination of default hereunder; but ratherthe resulting cost or liability required to be borne by Buyer arising from or in connection with such modifications within fifteen (15) days from the date Buyer is notified of such modification, Buyer and Seller shall promptly submit all documents necessary to enable the Bankruptcy Court to make such determination pursuant to Section 18.7 hereof. If Buyer terminates this Agreement pursuant to the immediately preceding sentence, the Down Payment and all interest earned thereon shall be delivered to Buyer and the parties shall be released from all further obligations and liabilities under this Agreement, except with respect to the covenants, representations, warranties and indemnifications set forth in Sections 4, 6.5 and 13. Notwithstanding the foregoing, in the event that such casemodification to representations, schedules and exhibits was known to Seller on the date hereof and not disclosed to Buyer, and the resulting cost or liability required to be borne by Buyer arising from or in connection with any such modification can, in the reasonable opinion of Seller and Buyer (subject to the Bankruptcy Court's right, if necessary, to make such determination as set forth above), be estimated to exceed, in the aggregate, Two Million Five Hundred Thousand Dollars ($2,500,000.00) (the "Nondisclosed Modification Excess"), and should Seller not agree to either (x) deduct such Nondisclosed Modification Excess from the Purchase Price or (y) reflect the Nondisclosed Modification Excess as a liability on the Closing Net Non-Cash Working Capital Statement, Buyer may, at Buyer’s option and as Buyer’s its sole and exclusive remedyoption, terminate the Agreement. In the event that Buyer terminates this Agreement pursuant to the immediately proceeding sentence, in addition to the return of the Down Payment and have accrued interest thereon, Buyer shall also be entitled to reimbursement from CPPI of all reasonable costs and expenses, including reasonable attorneys' fees, that Buyer incurred during the Deposit refunded by Escrow Agent, whereupon Pre-Closing Period in connection with the Transaction and the parties hereto shall have no be released from all further rights, obligations or and liabilities with respect to each other hereunderthis Agreement, except for with respect to the any rights covenants, representations , warranties and obligations that expressly survive herein. The representations and warranties indemnifications set forth in Section 7.1 Sections 4, 6.5 and in Sellers’ Documents shall survive the Closing to the date (the “Representation Termination Date”) occurring six (6) months after the date of the Closing, at which time such representations and warranties shall terminate and be of no further force or effect, except for any claims made prior to the Representation Termination Date as hereinafter set forth; provided, however, that the representations and warranties set forth in Section 7.1.1 through 7.1.3 shall survive the Closing for a period of one (1) year after the Closing Date. All other representations and warranties made by Sellers in this Agreement, unless expressly provided otherwise, shall not survive the Closing. In order to make a claim for damages based on the inaccuracy of any of the representations or warranties of Sellers contained in Section 6.1 or in Sellers’ Documents, promptly after discovery of any such inaccuracy (but in any event prior to the Representation Termination Date), Buyer shall notify Sellers in writing (a “Misrepresentation Notice”) that Buyer has discovered the existence of an inaccuracy in a warranty or representation (such Misrepresentation Notice to describe the inaccuracy in reasonable detail). Thereupon, the claim set forth in such Misrepresentation Notice shall continue to survive until final resolution or settlement thereof. No post-Closing claim for breach of any representation or warranty of Sellers shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter that was known to Buyer prior to the Closing (from whatever source as a result of Buyer’s due diligence tests, investigations and inspections of the Property, or otherwise disclosed in the Review Materials or other reports or studies obtained by Buyer, or from a disclosure by Sellers or Sellers’ agents and employees)13. Where representations and warranties are made in this Agreement that are expressly to “Sellers’ the "best of Seller's knowledge,” " such phrase shall mean and be limited to the current statement that there is no fact or circumstance contrary to such representation or warranty within the actual knowledge of Xxxxxx of, or included in a written notice received or sent by Xxxxx X. Xxxxxx, Xx., Xxxxxx X. Xxxxxxx, Xxxx Xxxxxx or Xxxxx X. Xxxxxxx or the Executive Vice President of each of Sellers and Xxxxxx Xxxxx, a Vice President of each of Sellers, such individuals having responsibility for oversight directors of the management, leasing and operation board of the Property (collectively, “Sellers’ Representatives”); provided, however, that neither Xxxxxx X. Xxxxxx or Xxxxxx Xxxxx shall have any personal liability in connection with, or arising out of, any representation made by Sellers in this Agreement. For purposes of the representations and warranties made by Sellers in this Agreement and/or Sellers’ Documents, (1) “Sellers’ knowledge” shall not include that of any independent contractor hired by Sellers and (2) notices received by any independent contractor hired by Sellers and not delivered by such contractor to Sellers shall not be deemed to have been received by Sellers. Furthermore, Sellers’ knowledge shall not include any implied, imputed or constructive knowledge of Sellers’ Representatives (or either of them) and shall not constitute any representation that Sellers’ Representatives have made or are obligated to make any independent investigation or have any implied duty to investigate any matters relating to this AgreementCPPI.

Limitation of Seller's Representations. The (a) In the event Purchaser obtains actual knowledge of any breach of Seller's representations and or warranties of Sellers contained in Section 7.1 are made as of the Effective Date. Prior under Article 5 prior to Closing, Purchaser shall give written notice thereof to Seller at or prior to the date Closing. Upon receipt of such notice, Seller may elect to extend the Closing for as long as sixty (60) days to enable Seller to attempt to cure the condition that gives rise to such breach or otherwise provide evidence to Purchaser that the same does not exist. If Seller either does not elect to extend or, at or prior to the extended Closing, Sellers shall notify Buyer of any modifications be unable to cure such representations that are required condition or provide such evidence to make such representations true in all material respectsPurchaser, including any modifications arising from actions taken in compliance with Section 14. If any representation of Sellers herein, although true as of the Effective Date, is no longer true at the Closing as a result of a matter, event or circumstance beyond Sellers’ reasonable control, Buyer may not consider same as an event of default hereunder; but rather, in such case, Buyer may, at Buyer’s option and as Buyer’s sole and exclusive remedy, then Purchaser shall elect either (a) to terminate this Agreement on account thereof or (b) to close the purchase of the Property and have pay the Deposit refunded by Escrow AgentPurchase Price in accordance with the terms of this Agreement, whereupon but in the parties hereto case of an election under clause (b), Purchaser shall have no further rights, obligations or liabilities with respect be entitled to each other hereunder, except for indemnification under Section 5.05 on account of such breach subject to the any rights and obligations that expressly survive hereinlimitations on Seller's liability under Section 2.03. The representations and warranties set forth in provisions of this Section 7.1 and in Sellers’ Documents 5.06(a) shall survive the Closing to the date (the “Representation Termination Date”) occurring six (6) months after the date closing of the purchase of the Property. (b) Notwithstanding the foregoing, if during the course of Purchaser's tests and studies during the Inspection Period Purchaser obtains knowledge based upon review of written information from any reports, documents, test results, or other written materials or written information provided to Purchaser by Purchaser's consultants, by Seller or any other party, that contain facts or disclosure of circumstances that are at variance with any of Seller's representations or warranties, and if Purchaser thereafter consummates Closing, at which time Purchaser shall be deemed to have accepted such variant facts and circumstances and Seller's representations and warranties shall terminate and be of no further force or effect, except for any claims made prior to the Representation Termination Date as hereinafter set forth; provided, however, that the representations and warranties set forth in Section 7.1.1 through 7.1.3 shall survive the Closing for a period of one (1) year after the Closing Date. All other representations and warranties made by Sellers in this Agreement, unless expressly provided otherwise, shall not survive the Closing. In order to make a claim for damages based on the inaccuracy of any of the representations or warranties of Sellers contained in Section 6.1 or in Sellers’ Documents, promptly after discovery of any such inaccuracy (but in any event prior to the Representation Termination Date), Buyer shall notify Sellers in writing (a “Misrepresentation Notice”) that Buyer has discovered the existence of an inaccuracy in a warranty or representation (such Misrepresentation Notice to describe the inaccuracy in reasonable detail). Thereupon, the claim set forth in such Misrepresentation Notice shall continue to survive until final resolution or settlement thereof. No post-Closing claim for breach of any representation or warranty of Sellers shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter that was known to Buyer prior to the Closing (from whatever source as a result of Buyer’s due diligence tests, investigations and inspections of the Property, or otherwise disclosed in the Review Materials or other reports or studies obtained by Buyer, or from a disclosure by Sellers or Sellers’ agents and employees). Where representations and warranties are made in this Agreement to “Sellers’ knowledge,” such phrase shall mean and be limited to the current actual knowledge of Xxxxxx X. Xxxxxx, the Executive Vice President of each of Sellers and Xxxxxx Xxxxx, a Vice President of each of Sellers, such individuals having responsibility for oversight of the management, leasing and operation of the Property (collectively, “Sellers’ Representatives”); provided, however, that neither Xxxxxx X. Xxxxxx or Xxxxxx Xxxxx shall have any personal liability in connection with, or arising out of, any representation made by Sellers in this Agreement. For purposes of the representations and warranties made by Sellers in this Agreement and/or Sellers’ Documents, (1) “Sellers’ knowledge” shall not include that of any independent contractor hired by Sellers and (2) notices received by any independent contractor hired by Sellers and not delivered by such contractor to Sellers shall not be deemed excised or modified to have been received by Sellers. Furthermore, Sellers’ knowledge shall not include any implied, imputed or constructive knowledge of Sellers’ Representatives (or either of them) comport with such variant facts and shall not constitute any representation that Sellers’ Representatives have made or are obligated to make any independent investigation or have any implied duty to investigate any matters relating to this Agreementcircumstances.

Limitation of Seller's Representations. The representations and warranties of Sellers contained in Section 7.1 are made as of the Effective Date. Prior to the date of the Closing, Sellers shall notify Buyer of any modifications to such representations that are required to make such representations true in all material respects, including any modifications arising from actions taken in compliance with Section 14. If any representation of Sellers herein, although true as of the Effective Date, is no longer true at the Closing as a result of a matter, event or circumstance beyond Sellers’ reasonable control, Buyer may not consider same as an event of default hereunder; but rather, in such case, Buyer may, at Buyer’s option and as Buyer’s sole and exclusive remedy, terminate this Agreement and have the Deposit refunded by Escrow Agent, whereupon the parties hereto shall have no further rights, obligations or liabilities with respect to each other hereunder, except for the any rights and obligations that expressly survive herein. The representations and warranties set forth in Section 7.1 and in Sellers’ Documents shall survive the Closing to the date (the “Representation Termination Date”) occurring six (6) months after the date of the Closing, at which time such representations and warranties shall terminate and be of no further force or effect, except for any claims made prior to the Representation Termination Date as hereinafter set forth; provided, however, that the representations and warranties set forth in Section 7.1.1 through 7.1.3 shall survive the Closing for a period of one (1) year after the Closing Date. All other representations and warranties made by Sellers in this Agreement, unless expressly provided otherwise, shall not survive the Closing. In order to make a claim for damages based on the inaccuracy of any of the representations or warranties of Sellers contained in Section 6.1 7.1 or in Sellers’ Documents, promptly after discovery of any such inaccuracy (but in any event prior to the Representation Termination Date), Buyer shall notify Sellers in writing (a “Misrepresentation Notice”) that Buyer has discovered the existence of an inaccuracy in a warranty or representation (such Misrepresentation Notice to describe the inaccuracy in reasonable detail). Thereupon, the claim set forth in such Misrepresentation Notice shall continue to survive until final resolution or settlement thereof. No post-Closing claim for breach of any representation or warranty of Sellers shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter that was known to Buyer prior to the Closing (from whatever source as a result of Buyer’s due diligence tests, investigations and inspections of the Property, or otherwise disclosed in the Review Materials or other reports or studies obtained by Buyer, or from a disclosure by Sellers or Sellers’ agents and employees). Where representations and warranties are made in this Agreement to “Sellers’ knowledge,” such phrase shall mean and be limited to the current actual knowledge of Xxxxxx X. Xxxxxx, the Executive Vice President of each of Sellers and Xxxxxx Xxxxx, a Vice President of each of Sellers, such individuals having responsibility for oversight of the management, leasing and operation of the Property (collectively, “Sellers’ Representatives”); provided, however, that neither Xxxxxx X. Xxxxxx or Xxxxxx Xxxxx shall have any personal liability in connection with, or arising out of, any representation made by Sellers in this Agreement. For purposes of the representations and warranties made by Sellers in this Agreement and/or Sellers’ Documents, (1) “Sellers’ knowledge” shall not include that of any independent contractor hired by Sellers and (2) notices received by any independent contractor hired by Sellers and not delivered by such contractor to Sellers shall not be deemed to have been received by Sellers. Furthermore, Sellers’ knowledge shall not include any implied, imputed or constructive knowledge of Sellers’ Representatives (or either of them) and shall not constitute any representation that Sellers’ Representatives have made or are obligated to make any independent investigation or have any implied duty to investigate any matters relating to this Agreement.