Common use of Expiration of Representations, Warranties and Covenants Clause in Contracts

Expiration of Representations, Warranties and Covenants. All of the representations and warranties of the Seller set forth in this Agreement and the other Transaction Documents shall terminate and expire, and shall cease to be of any force or effect, at 5:00 P.M. (Eastern U.S. time) on the date that is two (2) years after the Closing Date (except with respect to the representations and warranties contained in Section 5.19, which shall survive until the applicable statute of limitations expires), and all liability with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Seller by the Purchaser before such date; provided, that claims by the Purchaser Indemnitees for indemnification pursuant to Section 10.6(c)(i) due to the breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Seller in Sections 5.1, 5.2 and 5.3(a) shall not be subject to any such limitation. All of the representations and warranties of the Purchaser set forth in this Agreement and the other Transaction Documents shall terminate and expire, and shall cease to be of any force or effect, at 5:00 P.M. (Eastern U.S. time) on the date that is two (2) years after the Closing Date, and all liability with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Purchaser by the Seller before such date; provided, that claims by the Seller Indemnitees for indemnification pursuant to Section 10.6(a)(i) due to the breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Purchaser in Sections 6.1, 6.2 and 6.3(a) shall not be subject to any such limitation. No claim or cause of action arising out of the inaccuracy or breach of any representation or warranty may be made following the termination of the applicable survival period referred to in this Section 10.5.

Expiration of Representations, Warranties and Covenants. All Acquiror’s right to indemnification pursuant to Section 9.2 will expire on the date eighteen (18) months after the Closing Date (the “Initial Claim Termination Date”); provided, however, that Acquiror’s right to indemnification pursuant to Sections 9.2(b)(iii) and 9.2(b)(v) will expire on the third anniversary of the Closing Date (the “Final Claim Termination Date”) (except with respect to any Claims pending on that date); and provided, further, that if at any time prior to the Initial Claim Termination Date or the Final Claim Termination Date, as applicable, Acquiror delivers to the Stakeholders’ Agent a notice (a “Claim Notice”) stating (i) the existence of an inaccuracy in any of the representations and warranties made by Target or a breach of a covenant made by Target (and setting forth in reasonable detail the basis for Acquiror’s determination that such an inaccuracy or breach exists and the amount of the Seller set forth in this Agreement and Damages incurred or Acquiror’s good faith estimate of the other Transaction Documents shall terminate and expire, and shall cease Damages to be incurred by Acquiror as a result of any force such inaccuracy or effect, at 5:00 P.M. breach) or (Eastern U.S. timeii) on the date a set of facts that have been alleged by a Third Party that is two (2) years after the Closing Date (except with respect reasonably believed to be true and, if ultimately determined to be true, would constitute an inaccuracy in any of the representations and warranties made by Target or the breach of a covenant made by Target (and setting forth in reasonable detail Acquiror’s good faith estimate of the Damages to be incurred by Acquiror as a result of such inaccuracy or breach) and asserting a claim for recovery under this Section 9.2 based on such inaccuracy or breach, then the claim asserted in such notice will survive the Initial Claim Termination Date or the Final Claim Termination Date, as applicable, until the earlier of such time as (i) such claim is fully and finally resolved or (ii) a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. All obligations of the Parties under the covenants contained in Section 5.19, which shall survive until this Agreement (including the applicable statute of limitations expires), covenants set forth in Sections 5 and all liability with respect to such representations and warranties shall thereupon be extinguished6) will expire at the Effective Time, except to the extent that notice of an alleged breach of any such representations covenant expressly specifies that it is to be (or warranties has been provided is otherwise required by this Agreement to be) performed after the Seller by the Purchaser before such dateEffective Time; provided, further, however, that notwithstanding the expiration of the Parties’ obligations under such covenants, claims by the Purchaser Indemnitees for indemnification pursuant breaches of any covenants of Target prior to their expiration, other than relating to Section 10.6(c)(i9.2(b)(iii) due to the breach or inaccuracy of any representation and warranty as of 9.2(b)(v) may be brought after the Effective Date or Time and until the Closing Date by Initial Claim Termination Date. The Parties acknowledge that the Seller in Sections 5.1, 5.2 and 5.3(a) shall not be subject to any such limitation. All of the representations and warranties of the Purchaser time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the other Transaction Documents shall terminate result of arms’-length negotiation among the Parties and expire, and shall cease that they intend for the time periods to be of any force or effect, at 5:00 P.M. (Eastern U.S. time) on the date that is two (2) years after the Closing Date, and all liability with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Purchaser enforced as agreed by the Seller before such date; provided, Parties. The Parties further acknowledge that claims by the Seller Indemnitees for indemnification pursuant to Section 10.6(a)(i) due to the breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Purchaser in Sections 6.1, 6.2 and 6.3(a) shall not be subject to any such limitation. No claim or cause of action arising out of the inaccuracy or breach of any representation or warranty may be made following the termination of the applicable survival period referred to time periods set forth in this Section 10.59 and elsewhere in the Agreement may be shorter than otherwise provided by Law.

Expiration of Representations, Warranties and Covenants. All of the representations and warranties of made by the Seller set forth Company in this Agreement and will expire on the other Transaction Documents shall terminate and expire, and shall cease earlier of (A) the date Purchaser completes 36 Confidential Treatment Requested an audit of the Company for 2014 (such date to be of any force confirmed in writing by Purchaser to the Shareholders’ Agent), or effect(B) April 1, at 5:00 P.M. (Eastern U.S. time) on the date 2015; provided, however, that is two (2) years after the Closing Date (except with respect to the representations and warranties contained in (i) Section 5.193.3 (Power and Authorization), which 3.8(a) (Capitalization), 3.8(c) (Consideration Spreadsheet) and 3.26 (Brokers’ and Finders’ Fees) (collectively, the “Special Representations”) shall survive indefinitely, (ii) Section 3.21 (Taxes) shall survive the Closing until sixty (60) days after the expiration of the longest applicable statute of limitations expires(including any extensions or waivers thereof) for the Taxes involved and (iii) Section 3.22 (Employee Benefit Plans) shall survive the Closing for a period of three (3) years (the date of termination of any representation or warranty in this Agreement being a “Representation Termination Date”), and all liability with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Seller by the Purchaser before such date; provided, however, that claims by the Purchaser Indemnitees for indemnification pursuant to Section 10.6(c)(i) due if at any time prior to the relevant Representation Termination Date, Purchaser delivers to the Shareholders’ Agent a notice stating the existence of a breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Seller in Sections 5.1, 5.2 and 5.3(a) shall not be subject to any such limitation. All of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for Purchaser’s determination that such breach exists and the amount of the Damages incurred by Purchaser set forth as a result of such breach, if known) and asserting a claim for recovery under this Section 9.2 based on such breach, then the claim asserted in such notice will survive such applicable Representation Termination Date until such time as such claim is fully and finally resolved. If the claim, demand or other matter with respect to which a claim notice or demand for indemnification under this Section 9 has been given is definitively withdrawn or resolved, the party that provided such notice or demand shall promptly so notify the party that received such notice or demand; and if Purchaser has delivered a copy of such notification or demand to the Escrow Agent and funds have been retained in the Escrow Fund after the first anniversary of the Closing with respect to any claim, demand or other matter reflected in or relating to such notice or demand, Purchaser shall promptly deliver to the Escrow Agent a written notice instructing the Escrow Agent to disburse such retained funds to the Company Holders in accordance with Section 2.11. All covenants and agreements of the parties contained in this Agreement shall remain in full force and the other Transaction Documents shall terminate and expire, and shall cease to be of any force or effect, at 5:00 P.M. effect in accordance with their terms. (Eastern U.S. time) on the date that is two (2) years after the Closing Date, and all liability with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Purchaser by the Seller before such date; provided, that claims by the Seller Indemnitees for indemnification pursuant to Section 10.6(a)(i) due to the breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Purchaser in Sections 6.1, 6.2 and 6.3(a) shall not be subject to any such limitation. No claim or cause of action arising out of the inaccuracy or breach of any representation or warranty may be made following the termination of the applicable survival period referred to in this Section 10.5.b)

Expiration of Representations, Warranties and Covenants. All of the representations and warranties of made by the Seller set forth Company in this Agreement and will expire on the other Transaction Documents shall terminate and expire, and shall cease earlier of (A) the date Purchaser completes 36 Confidential Treatment Requested an audit of the Company for 2014 (such date to be of any force confirmed in writing by Purchaser to the Shareholders’ Agent), or effect(B) April 1, at 5:00 P.M. (Eastern U.S. time) on the date 2015; provided, however, that is two (2) years after the Closing Date (except with respect to the representations and warranties contained in (i) Section 5.193.3 (Power and Authorization), which 3.8(a) (Capitalization), 3.8(c) (Consideration Spreadsheet) and 3.26 (Brokers’ and Finders’ Fees) (collectively, the “Special Representations”) shall survive indefinitely, (ii) Section 3.21 (Taxes) shall survive the Closing until sixty (60) days after the expiration of the longest applicable statute of limitations expires(including any extensions or waivers thereof) for the Taxes involved and (iii) Section 3.22 (Employee Benefit Plans) shall survive the Closing for a period of three (3) years (the date of termination of any representation or warranty in this Agreement being a “Representation Termination Date”), and all liability with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Seller by the Purchaser before such date; provided, however, that claims by the Purchaser Indemnitees for indemnification pursuant to Section 10.6(c)(i) due if at any time prior to the relevant Representation Termination Date, Purchaser delivers to the Shareholders’ Agent a notice stating the existence of a breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Seller in Sections 5.1, 5.2 and 5.3(a) shall not be subject to any such limitation. All of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for Purchaser’s determination that such breach exists and the amount of the Damages incurred by Purchaser set forth as a result of such breach, if known) and asserting a claim for recovery under this Section 9.2 based on such breach, then the claim asserted in such notice will survive such applicable Representation Termination Date until such time as such claim is fully and finally resolved. If the claim, demand or other matter with respect to which a claim notice or demand for indemnification under this Section 9 has been given is definitively withdrawn or resolved, the party that provided such notice or demand shall promptly so notify the party that received such notice or demand; and if Purchaser has delivered a copy of such notification or demand to the Escrow Agent and funds have been retained in the Escrow Fund after the first anniversary of the Closing with respect to any claim, demand or other matter reflected in or relating to such notice or demand, Purchaser shall promptly deliver to the Escrow Agent a written notice instructing the Escrow Agent to disburse such retained funds to the Company Holders in accordance with Section 2.11. All covenants and agreements of the parties contained in this Agreement shall remain in full force and the other Transaction Documents shall terminate and expire, and shall cease to be of any force or effect, at 5:00 P.M. (Eastern U.S. time) on the date that is two (2) years after the Closing Date, and all liability effect in accordance with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Purchaser by the Seller before such date; provided, that claims by the Seller Indemnitees for indemnification pursuant to Section 10.6(a)(i) due to the breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Purchaser in Sections 6.1, 6.2 and 6.3(a) shall not be subject to any such limitation. No claim or cause of action arising out of the inaccuracy or breach of any representation or warranty may be made following the termination of the applicable survival period referred to in this Section 10.5their terms.

Expiration of Representations, Warranties and Covenants. All of the representations and warranties of made by the Seller set forth Company in this Agreement Agreement, all representations and warranties made by the other Transaction Documents shall terminate Company Stockholders in any Letter of Transmittal, all representations and expirewarranties made by the Cashed-Out Optionholders in any Option Termination Agreement, and shall cease to be of all representations and warranties made by the Company Warrantholders in any force or effectWarrant Termination Agreement, at 5:00 P.M. (Eastern U.S. time) survive the Closing for a period beginning on the date that is two (2) years after the Closing Date (except with respect to and ending on the representations and warranties contained in Section 5.1912-month anniversary of the Closing Date, at which shall survive until the applicable statute of limitations expires), and all liability with respect to time such representations and warranties shall thereupon expire and terminate and be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Seller by the Purchaser before such dateno further force and effect; provided, however, that claims by the Purchaser Indemnitees for indemnification pursuant to Section 10.6(c)(i) due to representations in any Option Termination Agreement, Warrant Termination Agreement and Letter of Transmittal survive the breach or inaccuracy Closing indefinitely (the date of expiration of any representation and or warranty as of the Effective Date in this Agreement, being a “Representation 62 Termination Date”). The covenants or the Closing Date by the Seller in Sections 5.1, 5.2 and 5.3(a) shall not be subject to any such limitation. All of the representations and warranties of the Purchaser set forth agreements contained in this Agreement that by their terms are to be performed solely between the date hereof and the other Transaction Documents shall terminate and expire, and shall cease Closing do not survive the Closing. The covenants or agreements contained in this Agreement that by their terms are to be of any force performed at or effect, at 5:00 P.M. (Eastern U.S. time) on the date that is two (2) years after the Closing Date, continue in full force and all liability effect after the Closing until performed or waived in accordance with respect to such representations and warranties shall thereupon be extinguished, except to their terms (the extent that notice date of an alleged breach of such representations or warranties has been provided to the Purchaser by the Seller before such date; provided, that claims by the Seller Indemnitees for indemnification pursuant to Section 10.6(a)(i) due to the breach or inaccuracy expiration of any representation and warranty as of the Effective Date or the Closing Date by the Purchaser covenant in Sections 6.1, 6.2 and 6.3(a) shall not be subject to any such limitationthis Agreement being a “Covenant Termination Date”). No claim or cause of person may bring action arising out of the inaccuracy or for a breach of any representation or warranty may be made following contained in this Agreement after the termination expiration of the Representation Termination Date of such representation or warranty, and no person may bring an action for a breach of any covenant contained in this Agreement after the expiration of the Covenant Termination Date of such covenant, in each case except for claims of which a party has received written notification (each, a “Indemnification Claim Notice”) prior to such expiration setting forth in reasonable detail the nature of such claim (including a reasonable specification of the basis for such claim and the amount of the Damages incurred by Parent as a result of such breach, if known or ascertainable), in which case such claim asserted in such notice shall survive such Representation Termination Date or Covenant Termination Date, as applicable, until such time as such claim is fully and finally resolved as provided by this Agreement and the Escrow Agreement. It is the express intent of the parties that, if the Representation Termination Date or Covenant Termination Date, as applicable, for an item as contemplated by this Section 8.1(a) is shorter than the statute of limitations that would otherwise have been applicable to such item, then, by contract, the applicable statute of limitations with respect to such item is reduced to the shortened survival period referred to contemplated by this Agreement. The parties further acknowledge that the time periods set forth in this Section 10.58.1(a) for the assertion of claims under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed by the parties. Following the delivery of any Indemnification Claim Notice, the Parent shall give, and shall cause its Affiliates and Representatives to give, the Securityholders’ Representative and its Representatives reasonable access (including electronic access, to the extent available) as the Securityholders’ Representative may reasonably require to the books and records of the Company and the Parent and reasonable access to such personnel or representatives of the Company and the Parent, including to the individuals responsible for the matters subject to the Indemnification Claim Notice, as the Securityholders’ Representative may reasonably require for the purposes of resolving any disputes or responding to any matters or inquiries raised in the Indemnification Claim Notice.

Expiration of Representations, Warranties and Covenants. All representations and warranties (except for those representations and warranties set forth in Section 2.6, the Capitalization Certificate, Section 2.16 and Section 2.20, each of which shall survive until the date on which the last Contingent Payment, if any, is made) by Target in this Agreement shall expire on the one year anniversary of the Closing Date (as applicable to any representation or warranty, the “Representation Termination Date”); provided, however, that if at any time prior to the applicable Representation Termination Date, Acquiror delivers to the Stockholders’ Committee a notice stating the existence of an inaccuracy in any of the representations and warranties made by Target (and setting forth in reasonable detail the basis for Acquiror’s determination that such inaccuracy exists and the amount of the Seller Damages incurred by Acquiror as a result of such inaccuracy) and asserting a claim for recovery under this Section 8.2 based on such inaccuracy, then the claim asserted in such notice shall survive the applicable Representation Termination Date until such time as such claim is fully and finally resolved. All obligations of the parties under the covenants contained herein (including the covenants set forth in this Agreement Sections 4 and 5) shall expire at the other Transaction Documents shall terminate and expire, and shall cease to be of any force or effect, at 5:00 P.M. (Eastern U.S. time) on the date that is two (2) years after the Closing Date (except with respect to the representations and warranties contained in Section 5.19, which shall survive until the applicable statute of limitations expires), and all liability with respect to such representations and warranties shall thereupon be extinguishedEffective Time, except to the extent that notice of an alleged breach of any such representations covenant expressly specifies that it is to be (or warranties has been provided is otherwise required by this Agreement to be) performed after the Seller by the Purchaser before such dateEffective Time; provided, however, that notwithstanding the expiration of the parties’ obligations under such covenants, claims by for breaches of any covenants of Target prior to their expiration may be brought after the Purchaser Indemnitees for indemnification pursuant to Section 10.6(c)(i) due Effective Time and until the date on which the last Contingent Payment, if any, is made. Notwithstanding anything to the breach contrary expressed or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Seller in Sections 5.1, 5.2 and 5.3(a) shall not be subject to any such limitation. All of the representations and warranties of the Purchaser set forth in this Agreement and the other Transaction Documents shall terminate and expire, and shall cease to be of any force or effect, at 5:00 P.M. (Eastern U.S. time) on the date that is two (2) years after the Closing Date, and all liability with respect to such representations and warranties shall thereupon be extinguished, except to the extent that notice of an alleged breach of such representations or warranties has been provided to the Purchaser by the Seller before such date; provided, that claims by the Seller Indemnitees for indemnification pursuant to Section 10.6(a)(i) due to the breach or inaccuracy of any representation and warranty as of the Effective Date or the Closing Date by the Purchaser in Sections 6.1, 6.2 and 6.3(a) shall not be subject to any such limitation. No claim or cause of action arising out of the inaccuracy or breach of any representation or warranty may be made following the termination of the applicable survival period referred to implied in this Section 10.58.2(a), nothing in this Section 8.2(a) shall limit Acquiror’s ability to assert a Fraud Claim at any time prior to the date on which the last Contingent Payment, if any, is paid.