THE EXCISE TAX ACT (CANADA) OR WILL BECOME REGISTERED PRIOR TO CLOSING.
11.6.
FINANCIAL CAPABILITY.
PURCHASER HAS, AND AT CLOSING WILL HAVE, THE
FINANCIAL CAPABILITY TO COMPLETE THE TRANSACTIONS CONTEMPLATED UNDER THIS
AGREEMENT.
11.7.
PURCHASER'S INVESTIGATIONS.
PURCHASER IS RELYING UPON PURCHASER'S
OWN INVESTIGATION OF THE ASSETS, AND EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, NOT UPON ANY OTHER
REPRESENTATIONS, WARRANTIES, GUARANTIES, PROMISES, STATEMENTS OR ASSURANCES OF
SELLER OR ANY OF SELLER'S EMPLOYEES OR AGENTS, WHETHER WRITTEN OR ORAL, EXPRESS
OR IMPLIED, OR OTHERWISE.
12.
SURVIVAL; KNOWLEDGE AND MATERIALITY.
(A)
SURVIVAL.
AS PROVIDED ABOVE, THE RESPECTIVE REPRESENTATIONS AND
WARRANTIES OF SELLER AND PURCHASER CONTAINED HEREIN, AND THE RIGHT TO COMMENCE
ANY CLAIM WITH RESPECT THERETO, SHALL SURVIVE CLOSING FOR A PERIOD OF TWENTY
FOUR (24) MONTHS (EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.1), AND THEREAFTER
SHALL EXPIRE AND TERMINATE, AND EACH PARTY SHALL BE FOREVER RELEASED FROM
LIABILITY TO THE OTHER BASED UPON SUCH REPRESENTATIONS AND WARRANTIES EXCEPT AS
TO MATTERS FOR WHICH THE OTHER PARTY HAS DULY COMMENCED A PROCEEDING AGAINST THE
DEFAULTING PARTY WITH REGARD TO THE ALLEGED BREACH OF REPRESENTATION OR WARRANTY
ON OR PRIOR TO SUCH TERMINATION DATE.
(B)
KNOWLEDGE DEFINED.
AS USED IN THIS AGREEMENT:
(I)
"SELLER'S KNOWLEDGE" SHALL MEAN THE ACTUAL CURRENT KNOWLEDGE (AS
OPPOSED TO CONSTRUCTIVE OR IMPUTED KNOWLEDGE) OF THE FACT OR MATTER IN QUESTION
OF STEVE RUTLEDGE, FORESTRY STRATEGIC PLANNING TEAM LEADER, AND BARRY YUILL,
FOREST OPERATIONS TEAM LEADER, WITHOUT ANY DUTY TO CONDUCT ANY INVESTIGATION OR
INQUIRY. EACH OF THE PERSONS LISTED IN THIS SECTION HAS BEEN EMPLOYED BY SELLER,
OR SELLER'S PREDECESSOR, WITHIN SELLER'S WOODLANDS OPERATION IN NOVA SCOTIA FOR
A PERIOD OF AT LEAST 10 YEARS.
(II)
"PURCHASER'S KNOWLEDGE" SHALL MEAN THE ACTUAL CURRENT KNOWLEDGE
(AS OPPOSED TO CONSTRUCTIVE OR IMPUTED KNOWLEDGE) OF THE FACT OR MATTER IN
QUESTION OF THOMAS COLGAN, PRESIDENT AND CEO OF PURCHASER, WITHOUT ANY DUTY TO
CONDUCT ANY INVESTIGATION OR INQUIRY.
(C)
LIMITATION AS TO CLAIMS.
IN THE EVENT OF ANY CLAIM BY PURCHASER AGAINST
SELLER FOR BREACH OF REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT, NO CLAIM
SHALL BE PAYABLE BY SELLER UNTIL THE AGGREGATE AMOUNT OF LOSS OR DAMAGE UNDER
SUCH CLAIMS EXCEEDS $500,000.00 (THE "FLOOR").
NOTWITHSTANDING THE FLOOR,
SELLER SHALL BE OBLIGATED ONLY TO PAY THE FULL AGGREGATE AMOUNT OF ALL SUCH
CLAIMS AFTER THE AGGREGATE CLAIMS BY PURCHASER EXCEED THE FLOOR.
THE AGGREGATE
AMOUNT PAID BY THE SELLER FOR BREACH OF WARRANTY SHALL NOT EXCEED $5,000,000.00
(THE "CEILING").
NOTWITHSTANDING THE FOREGOING FLOOR AND CEILING, NO SUCH
LIMITS SHALL APPLY OR BE EFFECTIVE WITH RESPECT TO ANY CLAIM ARISING FROM THE
FRAUD OF SELLER, OR FROM ANY MORTGAGE, SECURITY INTEREST, OR STATUTORY LIEN
AGAINST THE ASSETS.
13.
CONTINGENCIES.
(A)
SELLER'S OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY IS
SUBJECT TO THE FOLLOWING CONDITIONS, EACH OF WHICH MAY BE WAIVED IN THE SOLE AND
ABSOLUTE DISCRETION OF SELLER:
(I)
PURCHASER PERFORMING, IN ALL MATERIAL RESPECTS, ITS OBLIGATIONS
UNDER THE AGREEMENT;
(II)
PURCHASER'S REPRESENTATIONS AND WARRANTIES SHALL BE