Common use of Survival and Limitations Clause in Contracts

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. Except as otherwise provided herein, The provisions of this Article 14 shall survive the Closing. The warranties and representations of the parties Seller 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), hereto will survive the Closing Date and will remain in full force and effect thereafter for a period of two years from one year after 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 4.3be effective with respect to any inaccuracy therein or breach thereof, 4.10, 4.11, 4.16 and 4.21 notice of 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 have been duly given within the applicable survival such one year period, the representations and warranties that are the subject of such indemnification claim shall survive until such time as such claim is finally resolvedin accordance with Section 14.3 hereof. Anything to the contrary contained herein notwithstanding, (ai) neither party Purchaser shall not assert any claim against the other Seller 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 Two Hundred Thousand Dollars ($750,000 200,000) calculated on a cumulative basis and not a per item basis, and then only in respect to the excess over said $750,000; and (bii) neither party Purchaser shall not be entitled to recover from the other Seller more than 50% an aggregate of an amount equal to twenty-five percent (25%) of the sum of (I) the total Purchase Price hereunder and (II) the Purchase Price under the Facility Sale Agreement with respect to all claims for indemnity or damages whether such claims are brought under this Article 14 or otherwise. The terms of the foregoing sentence shall not apply to Seller's obligation to provide indemnification to Purchaser with respect to the matters set forth in Section 3.2 (Non-Assumed Liabilities), Article 6 (Employees and Employee Benefits), Section 4.5 (Title), Section 4.6 (Taxes), Section 4.10 (Environmental), and Section 4.11 (Employees and Benefit Plans) and any inaccuracy matter to be performed by Sellers subsequent to the applicable Closing pursuant to this Agreement or breach of such warranties or representationsany document delivered by Sellers pursuant to Section 12.

Survival and Limitations. Except as otherwise provided herein, the (a) All representations and warranties and representations of the parties contained in this Agreement or in any instrument delivered pursuant hereto, as deemed to have been given as shall survive the consummation of the Effective Date or transactions contemplated by this Agreement and remain in force and effect until the date that is eighteen (18) months from the Closing Date, at which time they shall expire; provided, however, that the representations and warranties contained in Sections 5.1, 5.3, 5.4, 5.8, 5.12, and the first sentence of Section 5.10 of this Agreement (the "Fundamental Representations") shall survive and remain in full force until the expiration of the statute of limitations with respect to the underlying claim. Notwithstanding the foregoing (but subject to the other limitations in this Agreement), any claim relating to fraud by the Seller, any Seller's Member, or Buyer may be made at any time without any time limitation. 21471555v.18 (b) All covenants and agreements set forth herein requiring performance following the Closing shall survive the Closing in accordance with their respective terms until fully performed. (c) An Indemnitor shall not be liable to any Indemnitee for indemnification with respect to any claim capable of being made pursuant to Section 9.1(a) or 9.2(a) until the aggregate amount of all Losses in respect of indemnification pursuant to Section 9.1(a) or 9.2(a), as the case may be, pursuant to Section 8.1(bexceeds $35,000 (the "Deductible"), will survive in which event the Closing Date and will remain Indemnitor shall only be required to pay or be liable for Losses in full force and effect thereafter for a period excess 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 resolvedDeductible. 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 With respect to any inaccuracy or breach claim capable of such warranties or representations unless and until the amount of such claim or claims, including any claims deemed being made pursuant to Section 12.89.1(a) or 9.2(a), the Indemnitor shall not be liable for any individual or series or related Losses which do not exceed $750,000 calculated on a cumulative basis and 2,500 (which Losses shall not a per item basis, and then only in respect be counted towards the Deductible). The provisions of this Section 9.4(c) shall not apply to claims of breach of the excess over said $750,000; and Fundamental Representations. (bd) neither party The aggregate amount of all Losses for which an Indemnitor shall be entitled to recover from liable in the other more than 50% of the sum of (I) the Purchase Price hereunder and (II) the Purchase Price under the Facility Sale Agreement aggregate with respect to all claims capable of being made pursuant to Section 9.1(a) Section 9.2(a), as the case may be (other than claims arising from breach of the Fundamental Representations or fraud on the part of a party hereto in connection with the transactions contemplated by this Agreement), shall not exceed $1,125,000.00. (e) Payments by an Indemnitor pursuant to Section 9.1 or Section 9.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds received by the Indemnitee (net of any applicable deductible or retention and adjustment for indemnity reasonably anticipated premium increase resulting therefrom). The Indemnitor shall use its commercially reasonable efforts to recover under insurance policies for any Losses prior to seeking indemnification under this Agreement (but in no event shall an Indemnitee be required to commence or pursue any legal action to pursue coverage or otherwise collect on any such policy). (f) Except for with respect to Losses payable to an unrelated third party, in no event shall any inaccuracy Indemnitor be liable to any Indemnitee for any punitive, incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of such warranties this Agreement, or representationsdiminution of value or any damages based on any type of multiple. (g) Each Indemnitee shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that has given rise thereto.