Survival and Limitations. (a) All representations and warranties in this Agreement and any other certificate or document delivered pursuant to this Agreement will survive the Closing until the later of the (A) first anniversary of the Closing Date and (B) August 31, 1998 (the "Sunset Period"); provided, however, that the representations and warranties set forth in (i) SECTIONS 4.1(c) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes). Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim for breach thereof has been made prior to the expiration of the applicable survival period and shall survive until such claim is resolved. The right to indemnification, reimbursement, or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the Closing and remain in effect indefinitely.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this SECTION 13.1), Seller shall not be liable hereunder to Buyer as a result any Breach of any representation, warranty, covenant or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations under this Agreement shall exceed, in the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap").
(c) Notwithstanding the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectly, to (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating to the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, (iii) any fraudulent acts committed by Sel...
Survival and Limitations. The provisions of this Section 5 shall survive the expiration or termination of Executive’s employment hereunder for any reason. Notwithstanding any other provision of this Agreement, the parties hereto acknowledge and agree that nothing in this Agreement shall prohibit Executive from reporting possible violations of Federal, State or other law or regulation to, or filing a charge or other complaint with, any governmental agency or entity, including but not limited to the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission, Congress, and any Inspector General, or making any other disclosures that are protected under any whistleblower provisions of Federal, State or other law or regulation or assisting in any investigation or proceeding. The parties hereto further acknowledge that nothing herein limits Executive’s ability to communicate with any such governmental agency or entity or otherwise participate in any such investigation or proceeding that may be conducted by any such governmental agency or entity, including providing documents or other information, without notice to the Company. Executive does not need the prior authorization of the Company to make any such reports or disclosures, and Executive is not required to notify the Company that Executive made any such reports or disclosures or is assisting in any such investigation. Additionally, Executive (a) does not waive any rights to any individual monetary recovery or other awards in connection with reporting any such information to any such governmental agency or entity, (b) does not breach any confidentiality or other provision hereunder in connection with any such reporting or disclosures, and (c) will not be prohibited from receiving any amounts hereunder as a result of making any such reports or disclosures or assisting with any such investigation or proceeding.
Survival and Limitations. Except as otherwise provided herein, the warranties and representations of the parties contained in this Agreement or in any instrument delivered pursuant hereto, as deemed to have been given as of the Effective Date or the Closing Date, as the case may be, pursuant to Section 8.1(b), will survive the Closing Date and will remain in full force and effect thereafter for a period of two years from the Closing Date; provided that the representations and warranties contained in (i) Sections 4.8 and 4.18 shall survive the Closing Date indefinitely and (ii) Sections 4.3, 4.10, 4.11, 4.16 and 4.21 which shall survive the Closing Date until 90 days following the expiration of any statute of limitations (or extensions thereof) applicable to the matters described therein; and provided further that in the event notice of any claim for indemnification is given within the applicable survival period, the representations and warranties that are the subject of such indemnification claim shall survive until such time as such claim is finally resolved. Anything to the contrary contained herein notwithstanding, (a) neither party shall assert any claim against the other for indemnification (not including indemnification for Taxes) hereunder with respect to any inaccuracy or breach of such warranties or representations unless and until the amount of such claim or claims, including any claims deemed made pursuant to Section 12.8, shall exceed $750,000 calculated on a cumulative basis and not a per item basis, and then only in respect to the excess over said $750,000; and (b) neither party shall be entitled to recover from the other more than 50% of the sum of (I) the Purchase Price hereunder and (II) the Purchase Price under the Facility Sale Agreement with respect to all claims for indemnity with respect to any inaccuracy or breach of such warranties or representations.
Survival and Limitations. Subject to the limitations set forth in this Article VI, the representations and warranties of Seller contained in this Agreement shall survive the Closing Date for a period of two (2) years. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or, if shorter, for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.
Survival and Limitations. (i) The parties agree that any representations and warranties contained in this Agreement shall expire and shall be of no further force or effect as of two hundred seventy (270) days following the Closing Date (the “Limitation Period”). If Buyer, within the Limitation Period, gives notice to Seller of any breach of such representations or warranties or any Post-Closing Default (the “Initial Notice”) (which Initial Notice shall concurrently be delivered to Title Company, as Escrow Holder under the Escrow Holdback Agreement), and the Seller or Individual Sellers fail to cure such breach or Post-Closing Default, as the case may be, within thirty (30) days following the giving of such Initial Notice (or, if such breach or Post-Closing Default cannot reasonably be cured within thirty (30) days, Seller shall be provided with an additional reasonable time period to cure such breach not to exceed sixty (60) days following the giving of such Initial Notice, so long as such cure has been commenced within such thirty (30) days and has been diligently pursued), then Buyer shall have the right to deliver a “Claim Notice” pursuant to the terms and conditions of the Escrow Holdback Agreement. The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties; provided that, consent to the Closing by Buyer shall be deemed to constitute a waiver of any breach of which Buyer had actual knowledge (exclusive of any constructive and imputed knowledge) as of the Closing Date. Buyer shall not have the right to bring a cause of action for a breach of a representation or warranty unless the damage to Buyer on account of such one or more breaches (individually or when combined with damages from other breaches) equals or exceeds $1,000 (the “Damages Floor”) (provided, however, that upon reaching such threshold amount, Seller shall be liable for the entire amount of such claim), and Buyer agrees that the post-Closing maximum aggregate liability of the Seller and Individual Sellers for the alleged breach of any or all representations or warranties set forth in this Agreement and/or any Post-Closing Default is limited to $200,000 as more particularly set forth in Section 13(t)(ii) immediately below (the “Damages Ceiling”). Notwithstanding the forgoing, the above described Damages Floor and Damages Ceiling shall not be applicable to instances of intentional fraud or misrepresentation by an Individual Seller.
Survival and Limitations. The Parties’ representations and warranties set forth in this Section 5 (and their respective liability for any breach thereof) shall survive Closing and shall not be deemed to merge into any of the Closing Documents; provided, however, that after Closing Seller shall have no liability to Buyer for any breach of such representations and warranties unless:
5.4.1 The facts constituting such breach are not within Buyer’s Knowledge prior to Closing or were not otherwise disclosed on the Electronic Data Site or in writing to Buyer in accordance with Section 15 of this Agreement;
5.4.2 Buyer has given Seller written notice claiming such breach, and stating in reasonable detail the factual basis for such claim, within 180 Days after the Closing Date and has commenced any action with respect to such claim within 210 Days after the Closing Date; and
5.4.3 Buyer’s actual out-of-pocket loss from all breaches of Seller’s representations, warranties and covenants herein exceeds Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate, in which case Buyer shall have a claim for the entire amount of loss suffered from such breaches but in no event shall Seller’s aggregate liability to Buyer for all such breaches exceed two percent (2%) of the Purchase Price. In the event of the breach or in accuracy of any representation or warranty set forth herein, the damaged Party shall, subject to the foregoing limitations, be entitled to recover all actual losses, damages, payments, cost or expense caused thereby (including, without limitation, attorneys’ fees and disbursements actually and reasonably incurred but excluding incidental, consequential, exemplary, special or punitive damages).
Survival and Limitations. Notwithstanding anything to the contrary contained in this Agreement (including without limitation the exhibits, appendices and schedules hereto, and the Disclosure Schedule):
a. Each representation, warranty, indemnity, covenant and agreement of each of the parties hereto shall survive the Closing; provided, however, that no party shall be entitled to assert any claim against the other for misrepresentation, breach of warranty, indemnity, covenant or agreement under, pursuant to or in respect of this Agreement, unless the party asserting such claim shall notify the other, as set forth in Section 10.3 below, of such claim, in reasonable detail, during the Survival Period applicable thereto, in which case the Indemnified Party's right to indemnification will survive, but only with respect to the matters so described in such notice. The Survival Period with respect to the following representations, covenants and agreements shall extend until the expiration of the applicable statute of limitations with respect thereto: Sections 2.1, 3.1 (including without limitation Schedule 3.1.a hereto), 5.1, 5.2, 5.3, 5.10, 5.13, 5.26, 5.27, 5.28, 6.1, 6.2, 8.4, clause (B) of Section 10.1.a, and covenants and agreements arising under the MTU Agreement. The Survival Period with respect to the representations and warranties set forth in Section 5.22 and the covenants and obligations set forth in clause (C)(iii) of Section 10.1.a and clause (B) of Section 10.1.c shall be thirty-six (36) months from the Closing Date. The Survival Period with respect to the covenants and obligations set forth in clauses (C)(i) and (C)(ii) of Section 10.1.a shall be sixty (60) months from the Closing Date. The Survival Period with respect to the covenants set forth in Section 7.4 and 12.4 hereof shall be as indicated therein. In all other instances for all other provisions for this Agreement, the Survival Period shall be thirty (30) months from the Closing Date.
b. Except for the Retained/Assumed Liabilities and except for the indemnity obligations under Section 10.1.b, or under clauses (i) or (ii) of Section 10.1.a(C) (the "Indemnified Liabilities"), Seller shall have no liability under this Article or otherwise under this Agreement or in connection with any of the transactions contemplated by this Agreement, unless and until the aggregate amount of Seller's liabilities under this Article, other than any in respect of any of the Indemnified Liabilities, exceeds $100,000 (the "Deductible"). In a...
Survival and Limitations. The Parties’ representations set forth in this Section 5 (and their respective liability for any breach thereof) shall survive Closing and shall not be deemed to merge into any of the Transfer Instruments; provided, however, that after Closing Seller shall have no liability to Buyer for any breach of such representations unless: 5.
4.1 The facts constituting such breach have not been disclosed in writing to, discovered by or otherwise become actually known to Buyer prior to Closing; 5.
4.2 Buyer has given Seller written notice claiming such breach, and stating in reasonable detail the factual basis for such claim, within 270 days after the Closing Date; 5.
4.3 Buyer’s actual out-of-pocket loss from all such breaches exceeds $150,000; and 5.
4.4 Buyer commences a legal action on such claim, and serves Seller with notice thereof in accordance with the applicable Law, within 365 days after the Closing Date.
5.5 Notice of Subsequent Event or Discovery. Prior to Closing, each Party shall give the other prompt notice of its discovery of any event or condition which has the effect of making any of Seller’s representations contained in Section 5 materially inaccurate. If it is reasonably likely that such event or condition can be remedied within 30 days, so as to remove such material inaccuracy, and if Seller undertakes in writing to Buyer, within ten Days after receiving such notice, to use all commercially reasonable efforts to effect such remedy, then so long as it is making such efforts Seller shall have the right to extend the Last Closing Date by no more than 30 days to complete such remedy and Buyer shall not be entitled, prior to the Last Closing Date (as so extended) or (if earlier) the cessation of such efforts, to terminate this Agreement by reason of such inaccuracy. 6.
Survival and Limitations. (a) All representations and warranties contained in this Agreement shall survive until the date that is two (2) years following the Closing Date.
(b) Notwithstanding anything herein to the contrary, Infinity shall indemnify and hold the Seller Indemnified Persons harmless pursuant to this Agreement to the extent that the Damages exceed in the aggregate Two Hundred Fifty Thousand Dollars ($250,000) (the "Basket Amount"); provided, that if ------------- -------- aggregate claims hereunder exceed the Basket Amount, then Infinity shall indemnify and hold the Seller Indemnified Persons harmless pursuant to this Agreement only for the amount exceeding the Basket Amount. Notwithstanding any other provisions of this Agreement in no event shall Infinity's liability to indemnify the Seller Indemnified Persons hereunder exceed Ten Million Dollars ($10,000,000) (the "Cap"). ---
Survival and Limitations. The Parties' representations set forth in this Section 5 (and their respective liability for any breach thereof) shall survive Closing and shall not be deemed to merge into any of the Transfer Instruments; provided, however, that after Closing Seller shall have no liability to Buyer for any breach of such representations unless:
5.4.1 The material facts constituting such breach have not come to Buyer's Knowledge prior to the Approval Date;
5.4.2 Buyer has given Seller written notice claiming such breach, and stating in reasonable detail the factual basis for such claim, prior to the first anniversary of the Closing Date; and
5.4.3 Buyer's actual out-of-pocket loss from such breach exceeds $25,000 and from all breaches of Seller's representations herein exceeds $1,000,000; and provided further, that in no event shall Seller's aggregate liability to Buyer for all such breaches exceed three percent of the Purchase Price.
