Common use of Survival of Seller’s Representations Clause in Contracts

Survival of Seller’s Representations. Seller and Purchaser agree that Seller’s Representations shall survive Closing for a period of nine (9) months (the “Survival Period”). Seller shall have no liability after the Survival Period with respect to Seller’s Representations contained herein except to the extent that Purchaser has delivered notice to Seller during the Survival Period for breach of any of Seller’s Representations. Under no circumstances shall Seller be liable to Purchaser for more than $300,000.00 in any individual instance or in the aggregate for all representations, warranties, liabilities, covenants, indemnities and/or obligations of Seller under this Contract and/or any documents executed and delivered by Seller in connection with the Closing, including, without limitation, any breaches of Seller’s Representations, nor shall Purchaser be entitled to bring any claim for such matters unless the claim for damages (either in the aggregate or as to any individual claim) by Purchaser exceeds $25,000.00. In the event that Seller breaches any representation contained in Section 6.1 and Purchaser had knowledge of such breach prior to the Closing Date, and elected to close regardless, Purchaser shall be deemed to have waived any right of recovery, and Seller shall not have any liability in connection therewith. To secure the Seller liability contemplated by this Section 6.3, Seller shall deposit a cash amount at Closing in escrow equal to $300,000.00 (the “Escrow Funds”) to be held by Escrow Agent pursuant to the terms of a post-closing escrow agreement in a form reasonably acceptable to Seller and Purchaser (the “Post-Closing Escrow Agreement”), which Post-Closing Escrow Agreement shall state that the Escrow Funds shall be made available to Purchaser on account of any liability with respect to Seller’s Representations contained herein to the extent Purchaser has delivered notice to Escrow Agent on or before the ninetieth (90th) day following the Closing Date, it being understood that if Purchaser fails to deliver such notice within such ninety-day period, Escrow Agent shall disburse the Escrow Funds to Seller; provided, however, that the failure to deliver such notice within such ninety-day period and/or the disbursement of the Escrow Funds to Seller shall not reduce, diminish or otherwise be deemed to reduce or diminish Purchaser’s right to pursue any action against Seller that is otherwise noticed during the Survival Period as otherwise contemplated by this Section 6.3.

Survival of Seller’s Representations. Seller and Purchaser agree that (i) Seller’s Representations (other than the Fundamental Representations) shall survive the Closing for a period of nine six (96) months (the “General Representations Survival Period”); and (ii) the Fundamental Representations shall survive the Closing for a period of three (3) years, except that (A) the Fundamental Representation set forth in Section 6.1.9 shall survive Closing for the applicable statute of limitations and (B) the Fundamental Representations set forth in Sections 6.1.12 shall survive the Closing for a period of three (3) years (as applicable, the “Fundamental Representations Survival Period”) (the General Representations Survival Period and the Fundamental Representations Survival Period, as applicable to the Seller’s Representations covered thereby as set forth in this Section 6.3 above, the “Applicable Survival Period”). Seller shall not have no any liability after the Applicable Survival Period with respect to any of Seller’s Representations contained herein (which are subject to such Applicable Survival Period) except to the extent that (a) Purchaser has delivered written notice to Seller during the such Applicable Survival Period alleging that Seller is in breach of any such Seller’s Representations (which are subject to such Applicable Survival Period) and specifying in reasonable detail the nature of such breach, and (b) Purchaser has commenced litigation against Seller by filing and serving a lawsuit, for breach of any such Seller’s Representations (which are subject to such Applicable Survival Period) within thirty (30) days following the expiration of the Applicable Survival Period. Purchaser shall not be entitled to bring any Claim arising out of (A) any breaches of any of Seller’s Representations. Under no circumstances shall Seller be liable to Purchaser for more than $300,000.00 in any individual instance or in the aggregate for , and/or (B) all other representations, warranties, liabilities, covenants, indemnities and/or obligations of Seller under this Contract and/or any documents executed and delivered by Seller in connection with the Closing, including, without limitation, any breaches of Seller’s Representations, nor shall Purchaser be entitled to bring any claim for such matters unless the claim Claim for damages Losses (either in the aggregate or as to any individual claimClaim) by Purchaser for all such matters exceeds $25,000.0050,000.00 (in which case Seller shall be liable back to the first dollar). In the event that Seller breaches any representation contained in Section 6.1 of Seller’s Representations and Purchaser had actual knowledge of such breach (i) upon Purchaser’s execution and delivery of this Contract, and Purchaser nevertheless executes and delivers this Contract, or (ii) at or prior to the Closing DateClosing, and elected Purchaser nevertheless elects to close regardlessclose, then in each case Purchaser shall be deemed to have waived any right of recovery, its rights in connection therewith and Seller shall not have any liability in connection therewith. To secure the Seller liability contemplated by this Section 6.3, Seller shall deposit a cash amount at Closing in escrow equal to $300,000.00 (the “Escrow Funds”) to be held by Escrow Agent pursuant to the terms of a post-closing escrow agreement in a form reasonably acceptable to Seller and Purchaser (the “Post-Closing Escrow Agreement”), which Post-Closing Escrow Agreement shall state that the Escrow Funds shall be made available to Purchaser on account of any liability with respect to Seller’s Representations contained herein to the extent Purchaser has delivered notice to Escrow Agent on or before the ninetieth (90th) day following the Closing Date, it being understood that if Purchaser fails to deliver such notice within such ninety-day period, Escrow Agent shall disburse the Escrow Funds to Seller; provided, however, that the failure to deliver such notice within such ninety-day period and/or the disbursement of the Escrow Funds to Seller shall not reducehave any liability in connection with a breach of any of Seller’s Representation which is due to the acts or omissions of Purchaser, diminish Tenant, or otherwise be deemed to reduce any affiliate of either Purchaser or diminish Purchaser’s right to pursue any action against Seller that is otherwise noticed during Tenant. PURCHASER IS FAMILIAR WITH, AND HEREBY WAIVES ITS RIGHTS, IF ANY, AT LAW OR IN EQUITY TO COMMENCE A LEGAL ACTION OR PROCEEDING AGAINST SELLER RELATING TO THE PROPERTY OR THE ISTAR MEMBER INTERESTS OR A BREACH OF A REPRESENTATION, WARRANTY, COVENANT OR CONDITION MADE IN THIS CONTRACT BY SELLER OR IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREIN, AT ANY TIME AFTER THE EXPIRATION OF THE APPLICABLE SURVIVAL PERIOD (OR THE EXPIRATION OF THE THIRTY (30) DAY PERIOD FOLLOWING THE EXPIRATION OF THE APPLICABLE SURVIVAL PERIOD IF PROPER WRITTEN NOTICE IS DELIVERED PURSUANT TO THIS SECTION 6.3). Purchaser indicates its acknowledgment of the Survival Period as otherwise contemplated by foregoing provisions of this Section 6.3.6.3 by initialing below: Purchaser Initials: ___________

Survival of Seller’s Representations. Seller and Purchaser agree that Seller’s Representations (and any warranties, liabilities, covenants, indemnities, and/or obligations of Seller under this Contract that expressly survive Closing or under any of the Closing Documents) shall survive Closing for a period of nine (9) months (the “Survival Period”). Seller shall have no liability after the Survival Period with respect to Seller’s Representations (or any warranties, liabilities, covenants, indemnities, and/or obligations of Seller under this Contract that expressly survive Closing or under any of the Closing Documents) contained herein except to the extent that Purchaser has delivered written notice to Seller during prior to the end of the Survival Period and has commenced litigation against Seller by filing and serving a lawsuit within ninety (90) days after the end of the Survival Period for breach of any of Seller’s RepresentationsRepresentations (or any such warranties, liabilities, covenants, indemnities, and/or obligations of Seller under this contract that expressly survive Closing or under any of the Closing Documents). The Survival Period and the obligation to bring a lawsuit within ninety (90) days after the end of the Survival Period shall not apply to or limit Seller’s liability with respect to Seller’s obligations with respect to the prorations provided for in Section 5.4, Section 5.5 and/or Article IX. Under no circumstances shall Seller be liable to Purchaser for more than $300,000.00 one percent (1%) of the Purchase Price in any individual instance or in the aggregate for all any representations, warranties, liabilities, covenants, indemnities indemnities, and/or obligations of Seller under this Contract and/or that expressly survive Closing or under any documents executed and delivered by Seller in connection with Closing (the Closing“Closing Documents”), including, without limitation, any breaches of Seller’s Representations, nor shall Purchaser be entitled to bring any claim for such matters unless the claim for damages (either in the aggregate or as to any individual claim) by Purchaser exceeds Fifty Thousand and No/100 Dollars ($25,000.00. In the event that Seller breaches any representation contained in Section 6.1 and Purchaser had knowledge of such breach prior to the Closing Date, and elected to close regardless, Purchaser shall be deemed to have waived any right of recovery, and Seller shall not have any liability in connection therewith. To secure the Seller liability contemplated by this Section 6.3, Seller shall deposit a cash amount at Closing in escrow equal to $300,000.00 (the “Escrow Funds”) to be held by Escrow Agent pursuant to the terms of a post-closing escrow agreement in a form reasonably acceptable to Seller and Purchaser (the “Post-Closing Escrow Agreement”50,000.00), which Post-Closing Escrow Agreement shall state that the Escrow Funds shall be made available to Purchaser on account of any liability with respect to Seller’s Representations contained herein to the extent Purchaser has delivered notice to Escrow Agent on or before the ninetieth (90th) day following the Closing Date, it being understood that if Purchaser fails to deliver such notice within such ninety-day period, Escrow Agent shall disburse the Escrow Funds to Seller; provided, however, that the failure to deliver such notice within such ninety-day period and/or the disbursement of the Escrow Funds to Seller foregoing cap on Seller’s liability shall not reduceapply to any obligations of Seller pursuant to Section 5.4, diminish or otherwise be deemed to reduce or diminish Purchaser’s right to pursue any action against Seller that is otherwise noticed during the Survival Period as otherwise contemplated by this Section 6.3.5.5,

Survival of Seller’s Representations. Seller and Purchaser agree that (i) Seller’s Representations (other than the Fundamental Representations and the Tax Representations) shall survive the Closing for a period of nine six (96) months (the “General Representations Survival Period”); (ii) the Fundamental Representations shall survive the Closing for a period of three (3) years, except that (A) the Fundamental Representation set forth in Section 6.1.9 shall survive Closing for the applicable statute of limitations and (B) the Fundamental Representations set forth in Sections 6.1.12 shall survive the Closing for a period of three (3) years (as applicable, the “Fundamental Representations Survival Period”), and (iii) the Tax Representations shall survive the Closing for a period of thirty (30) days following the expiration of the applicable statute of limitations (the “Tax Representations Survival Period”) (the General Representations Survival Period, the Fundamental Representations Survival Period and the Tax Representations Survival Period, as applicable to the Seller’s Representations covered thereby as set forth in this Section 6.3 above, the “Applicable Survival Period”). Seller shall not have no any liability after the Applicable Survival Period with respect to any of Seller’s Representations contained herein (which are subject to such Applicable Survival Period) except to the extent that (a) Purchaser has delivered written notice to Seller during the such Applicable Survival Period alleging that Seller is in breach of any such Seller’s Representations (which are subject to such Applicable Survival Period) and specifying in reasonable detail the nature of such breach, and (b) Purchaser has commenced litigation against Seller by filing and serving a lawsuit, for breach of any such Seller’s Representations (which are subject to such Applicable Survival Period) within thirty (30) days following the expiration of the Applicable Survival Period. Purchaser shall not be entitled to bring any Claim arising out of (A) any breaches of any of Seller’s Representations. Under no circumstances shall Seller be liable to Purchaser for more than $300,000.00 in any individual instance or in the aggregate for , and/or (B) all other representations, warranties, liabilities, covenants, indemnities and/or obligations of Seller under this Contract and/or any documents executed and delivered by Seller in connection with the Closing, including, without limitation, any breaches of Seller’s Representations, nor shall Purchaser be entitled to bring any claim for such matters unless the claim Claim for damages Losses (either in the aggregate or as to any individual claimClaim) by Purchaser for all such matters exceeds $25,000.0050,000.00 (in which case Seller shall be liable back to the first dollar). In the event that Seller breaches any representation contained in Section 6.1 of Seller’s Representations and Purchaser had actual knowledge of such breach (i) upon Purchaser’s execution and delivery of this Contract, and Purchaser nevertheless executes and delivers this Contract, or (ii) at or prior to the Closing DateClosing, and elected Purchaser nevertheless elects to close regardlessclose, then in each case Purchaser shall be deemed to have waived any right of recovery, its rights in connection therewith and Seller shall not have any liability in connection therewith. To secure the Seller liability contemplated by this Section 6.3, Seller shall deposit not have any liability in connection with a cash amount at Closing in escrow equal to $300,000.00 (the “Escrow Funds”) to be held by Escrow Agent pursuant breach of any of Seller’s Representation which is due to the terms acts or omissions of a post-closing escrow agreement in a form reasonably acceptable to Seller and Purchaser, Tenant, or any affiliate of either Purchaser (the “Post-Closing Escrow Agreement”), which Post-Closing Escrow Agreement shall state that the Escrow Funds shall be made available to Purchaser on account of any liability with respect to Seller’s Representations or Tenant. Notwithstanding anything contained herein to the contrary, (1) Seller shall have no obligation or liability hereunder to the extent that Purchaser or any of its agents or affiliates has delivered notice taken, or failed to Escrow Agent take, any action that, in Seller’s sole discretion, would prevent the REIT from qualifying as a REIT for U.S. federal income tax purposes, (2) Seller’s obligations to Purchaser pursuant to this Section 6.3 with respect to the Tax Representations (x) shall not apply to any Taxes that are to be prorated between Seller and Purchaser pursuant to Sections 5.4.1, 5.4.4 and 7.6.1.2, and (y) shall be handled solely pursuant to Section 7.6.6, and (3) Seller shall have no obligation nor liability hereunder for any Claims, liabilities, Taxes, costs, losses or obligations incurred by Purchaser in connection with any action, or inaction, taken by the Purchaser or any of its agents or affiliates on or before the ninetieth (90th) day following the Closing Date, it being understood that if Purchaser fails to deliver such notice within such ninety-day period, Escrow Agent shall disburse the Escrow Funds to Seller; provided, however, that the failure to deliver such notice within such ninety-day period and/or the disbursement behalf of the Escrow Funds to Seller shall not reduceREIT or taken by the REIT or any of its agents or affiliates while the REIT is owned by Purchaser. PURCHASER IS FAMILIAR WITH, diminish or otherwise be deemed to reduce or diminish Purchaser’s right to pursue any action against Seller that is otherwise noticed during AND HEREBY WAIVES ITS RIGHTS, IF ANY, AT LAW OR IN EQUITY TO COMMENCE A LEGAL ACTION OR PROCEEDING AGAINST SELLER RELATING TO THE PROPERTY OR THE INTERESTS OR A BREACH OF A REPRESENTATION, WARRANTY, COVENANT OR CONDITION MADE IN THIS CONTRACT BY SELLER OR IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREIN, AT ANY TIME AFTER THE EXPIRATION OF THE APPLICABLE SURVIVAL PERIOD (OR THE EXPIRATION OF THE THIRTY (30) DAY PERIOD FOLLOWING THE EXPIRATION OF THE APPLICABLE SURVIVAL PERIOD IF PROPER WRITTEN NOTICE IS DELIVERED PURSUANT TO THIS SECTION 6.3). Purchaser indicates its acknowledgment of the Survival Period as otherwise contemplated by foregoing provisions of this Section 6.3.6.3 by initialing below: Purchaser Initials: ___________