Common use of Survival; Exclusive Remedy Clause in Contracts

Survival; Exclusive Remedy. The representations and warranties of Transferor contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (other than the Transaction Agreements) shall survive the Closing until the later of (x) the first anniversary of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018, except that (i) the Transferor Fundamental Representations shall survive indefinitely or until the latest date permitted by Law and (ii) the representations and warranties contained in Section 3.11 shall survive until the third anniversary of the Closing Date. The covenants, obligations and agreements contained herein to be performed (a) prior to the Closing shall survive for, and a claim may be brought with respect to any breach thereof any time prior to the later of (x) the first anniversary of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018 and (b) following the Closing shall survive, and a claim may be brought with respect to any breach thereof, after the Closing in accordance with their respective terms, if specified, and otherwise, indefinitely. The indemnity contained in Section 8.2(b)(iv) shall survive until the fifth anniversary of the Closing Date. The parties hereby agree that the sole and exclusive remedy for any claim (whether such claim is framed in tort, contract or otherwise) arising out of a breach of this Agreement (other than with respect to any claim arising as a result of common law fraud) shall be asserted pursuant to this ARTICLE VIII, Section 10.13 or, with respect to Losses incurred in connection with any Transferred Business Guarantees or Transferor Guarantees (as the case may be) on or after the Closing Date, Section 5.16; provided that, the parties shall not be entitled to indemnity under this ARTICLE VIII with respect to any Current Assets and Current Liabilities solely to the extent of the amount of such items as were expressly and specifically included in Closing Date Working Capital. After the end of the applicable period set forth in this Section 8.1, no claim for breach of such representations, warranties, covenants, obligations or agreements may be brought, and no action with respect thereto may be commenced, and no party shall have any liability or obligation with respect thereto, unless the Indemnitee gave written notice to the Indemnifying Party, specifying in reasonable detail to the extent known the breach of the representation, warranty, covenant, obligation or agreement claimed, on or before the expiration of such period, as applicable, in which case the right of the party providing such written notice to assert its right to indemnification as to the matters so noticed shall not expire until the dispute is fully resolved and/or any applicable obligation to remedy such breach has been fully satisfied.

Survival; Exclusive Remedy. The representations and warranties of Transferor contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (other than the Transaction Agreements) shall survive the Closing until the later of (x) the first anniversary of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018, except that (i) the Transferor Fundamental Representations shall survive indefinitely or until the latest date permitted by Law and (ii) the representations and warranties contained in Section 3.11 shall survive until the third anniversary of the Closing Date. The covenants, obligations and agreements contained herein to be performed (a) prior to the Closing Effective Time shall survive for, and a claim may be brought with respect to any breach thereof any time prior to one year following the later of (x) the first anniversary of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018 Effective Time and (b) following the Closing Effective Time shall survive, and a claim may be brought with respect to any breach thereof, after the Closing Effective Time in accordance with their respective terms, if specified, and otherwise, indefinitely. The indemnity contained ; provided that, without limiting the foregoing, no claim may be asserted by any Spinco Indemnitee under this ARTICLE VI arising from any failure to transfer any Spinco Asset to Spinco unless such claim is asserted, if at all, prior to the date that is two years from the Distribution Date (such date, the “Cut-off Date”), except for claims (x) of which IP has been notified in Section 8.2(b)(ivwriting by the Surviving Corporation prior to the Cut-off Date or (y) shall survive until relating to or arising from any breach of any covenants, obligations and agreements to be performed after the fifth anniversary of the Closing Distribution Date. The parties Parties hereby agree that the sole and exclusive remedy for any claim (whether such claim is framed in tort, contract or otherwise) arising out of a breach of this Agreement (other than with respect to any claim arising as a result of common law fraud) shall be asserted pursuant to this ARTICLE VIIIVI, Section 10.13 10.16 or, with respect to Losses incurred in connection with any Transferred Business Spinco Guarantees or Transferor IP Guarantees (as the case may be) on or after the Closing DateEffective Time, Section 5.167.3; provided that, the parties Parties shall not be entitled to indemnity under this ARTICLE VIII VI with respect to any Current Assets and Current Liabilities solely to the extent of the amount of such items as were expressly and specifically included in Spinco Closing Date Working CapitalCapital or the Spinco Closing Net Debt. For the avoidance of doubt, to the extent any provision in this Agreement is deemed to be a representation or warranty, such provision shall not survive the Effective Time or termination of this Agreement. Notwithstanding anything to the contrary in this Agreement or the Merger Agreement, (x) the representations and warranties of IP set forth in Section 5.7 (“Information to be Supplied”) of the Merger Agreement, (y) the representations and warranties of UWWH set forth in Section 6.7 (“Information to be Supplied”) of the Merger Agreement, and (z) the covenant of IP set forth in Section 7.9 (“Sufficiency of Assets”) of this Agreement, shall survive the Effective Time, and a claim may be brought with respect to any breach thereof, during the two (2) year period immediately following the Effective Time. After the end of the applicable period set forth in this Section 8.16.1, no claim for breach of such representations, warranties, covenants, obligations or agreements may be brought, and no action with respect thereto may be commenced, and no party shall have any liability or obligation with respect thereto, unless the Indemnitee gave written notice to the Indemnifying Party, specifying in reasonable detail to the extent known the breach of the representation, warranty, covenant, obligation or agreement claimed, on or before the expiration of such period, as applicable, in which case the right of the party providing such written notice to assert its right to indemnification as to the matters so noticed shall not expire until the dispute is fully resolved and/or any applicable obligation to remedy such breach has been fully satisfied.

Survival; Exclusive Remedy. The representations and warranties of Transferor contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (other than the Transaction Agreements) shall survive the Closing until the later of (x) the first anniversary of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018, except that (i) the Transferor Fundamental Representations shall survive indefinitely or until the latest date permitted by Law and (ii) the representations and warranties contained in Section 3.11 shall survive until the third anniversary of the Closing Date. The covenants, obligations and agreements contained herein to be performed (ai) prior to the Closing Effective Time shall survive for, and a claim may be brought with respect to any breach thereof any time prior to fifteen (15) months following the later of (x) the first anniversary of the Closing Date Effective Time and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018 and (bii) following the Closing Effective Time shall survive, and a claim may be brought with respect to any breach thereof, after the Closing Effective Time in accordance with their respective terms, if specified, and otherwise, indefinitely. The indemnity contained ; provided that, without limiting the foregoing, no claim may be asserted by any Spinco Indemnitee under this ARTICLE VI arising from any failure to transfer any Spinco Asset to Spinco unless such claim is asserted, if at all, prior to the date that is eighteen (18) months from the Distribution Date (such date, the “Cut-off Date”), except for claims (x) of which Harbor has been notified in Section 8.2(b)(ivwriting by Spinco prior to the Cut-off Date or (y) shall survive until relating to or arising from any breach of any covenants, obligations and agreements to be performed after the fifth anniversary of the Closing Distribution Date. The parties Parties hereby agree that the sole and exclusive remedy for any claim (whether such claim is framed in tort, contract or otherwise) arising out of a breach of this Agreement (other than with respect to any claim arising as a result of common law fraud) shall be asserted pursuant to this ARTICLE VIIIVI, Section 10.13 10.16 or, with respect to Losses incurred in connection with any Transferred Business Spinco Guarantees or Transferor Harbor Guarantees (as the case may be) on or after the Closing DateEffective Time, Section 5.167.3; provided thatprovided, that the parties Parties shall not be entitled to indemnity under this ARTICLE VIII VI with respect to any Spinco Current Assets and Spinco Current Liabilities solely to the extent of the amount of such items as were expressly and specifically included in calculation of the Spinco Closing Date Working CapitalCapital or the Spinco Closing Date Net Debt (without regard to the limitations contained in Section 5.1(d)). For the avoidance of doubt, to the extent any provision in this Agreement is deemed to be a representation or warranty, such provision shall not survive the Effective Time or termination of this Agreement. Notwithstanding anything to the contrary in this Agreement or the Merger Agreement, (x) the representations and warranties of Harbor set forth in Section 4.7 (“Information to be Supplied”) of the Merger Agreement and (y) the representations and warranties of Voyager set forth in Section 5.7 (“Information to be Supplied”) of the Merger Agreement shall survive the Effective Time, and a claim may be brought by Spinco with respect to any breach thereof, during the two (2) year period immediately following the Effective Time. After the end of the applicable period set forth in this Section 8.16.1, no claim for breach of such representations, warranties, covenants, obligations or agreements may be brought, and no action with respect thereto may be commenced, and no party shall have any liability or obligation with respect thereto, unless the Indemnitee gave written notice to the Indemnifying Party, specifying in reasonable detail to the extent known the breach of the representation, warranty, covenant, obligation or agreement claimed, on or before the expiration of such period, as applicable, in which case the right of the party providing such written notice to assert its right to indemnification as to the matters so noticed shall not expire until the dispute is fully resolved and/or any applicable obligation to remedy such breach has been fully satisfied; provided, that, notwithstanding anything in this Section 6.1 to the contrary, the indemnification obligations for employee and employee benefits-related matters shall survive until the later of (i) the day following the expiration of the applicable statute of limitations or (ii) the last day of the applicable covenant period, as applicable.

Survival; Exclusive Remedy. The representations and warranties of Transferor contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (other than the Transaction Agreements) shall survive the Closing until the later of (x) the first anniversary of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018, except that (i) the Transferor Fundamental Representations shall survive indefinitely or until the latest date permitted by Law and (ii) the representations and warranties contained in Section 3.11 shall survive until the third anniversary of the Closing Date. The covenants, obligations and agreements contained herein to be performed (ai) prior to the Closing Effective Time shall survive for, and a claim may be brought with respect to any breach thereof any time prior to fifteen (15) months following the later of (x) the first anniversary of the Closing Date Effective Time and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018 and (bii) following the Closing Effective Time shall survive, and a claim may be brought with respect to any breach thereof, after the Closing Effective Time in accordance with their respective terms, if specified, and otherwise, indefinitely. The indemnity contained ; provided that, without limiting the foregoing, no claim may be asserted by any Spinco Indemnitee under this ARTICLE VI arising from any failure to transfer any Spinco Asset to Spinco unless such claim is asserted, if at all, prior to the date that is eighteen (18) months from the Distribution Date (such date, the “Cut-off Date”), except for claims (x) of which Harbor has been notified in Section 8.2(b)(ivwriting by Spinco prior to the Cut-off Date or (y) shall survive until relating to or arising from any breach of any covenants, obligations and agreements to be performed after the fifth anniversary of the Closing Distribution Date. The parties Parties hereby agree that the sole and exclusive remedy for any claim (whether such claim is framed in tort, contract or otherwise) arising out of a breach of this Agreement (other than with respect to any claim arising as a result of common law fraud) shall be asserted pursuant to this ARTICLE VIIIVI, Section 10.13 10.16 or, with respect to Losses incurred in connection with any Transferred Business Spinco Guarantees or Transferor Harbor Guarantees (as the case may be) on or after the Closing DateEffective Time, Section 5.167.3; provided thatprovided, that the parties Parties shall not be entitled to indemnity under this ARTICLE VIII VI with respect to any Spinco Current Assets and Spinco Current Liabilities solely to the extent of the amount of such items as were expressly and specifically included in calculation of the Spinco Closing Date Working CapitalCapital or the Spinco Closing Date Net Debt (without regard to the limitations contained in Section 5.1(d)). For the avoidance of doubt, to the extent any provision in this Agreement is deemed to be a representation or warranty, such provision shall not survive the Effective Time or termination of this Agreement. Notwithstanding anything to the contrary in this Agreement or the Merger Agreement, (x) the representations and warranties of Harbor set forth in Section 4.7 (“Information to be Supplied”) of the Merger Agreement and (y) the representations and warranties of Voyager set forth in Section 5.7 (“Information to be Supplied”) of the Merger Agreement shall survive the Effective Time, and a claim may be brought by Spinco with respect to any breach thereof, during the two (2) year period immediately following the Effective Time. After the end of the applicable period set forth in this Section 8.16.1, no claim for breach of such representations, warranties, covenants, obligations or agreements may be brought, and no action with respect thereto may be commenced, and no party shall have any liability or obligation with respect thereto, unless the Indemnitee gave written notice to the Indemnifying Party, specifying in reasonable detail to the extent known the breach of the representation, warranty, covenant, obligation or agreement claimed, on or before the expiration of such period, as applicable, in which case the right of the party providing such written notice to assert its right to indemnification as to the matters so noticed shall not expire until the dispute is fully resolved and/or any Confidential Treatment Requested by HS Spinco, Inc. Pursuant to 17 C.F.R. Section 200.83 applicable obligation to remedy such breach has been fully satisfied; provided, that, notwithstanding anything in this Section 6.1 to the contrary, the indemnification obligations for employee and employee benefits-related matters shall survive until the later of (i) the day following the expiration of the applicable statute of limitations or (ii) the last day of the applicable covenant period, as applicable.

Survival; Exclusive Remedy. The representations and warranties of Transferor contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (other than the Transaction Agreements) shall not survive the Closing until (except, for the later avoidance of (x) the first anniversary doubt, for purposes of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31, 2018, except that (i) the Transferor Fundamental Representations shall survive indefinitely or until the latest date permitted by Law and (ii) the representations and warranties contained in Section 3.11 shall survive until the third anniversary of the Closing DateR&W Insurance Policy). The covenants, obligations and agreements contained herein to be performed (a) prior to the Closing shall survive for, and a claim may be brought with respect to any breach thereof any time prior to the later of (x) thereof, until the first (1st) anniversary of the Closing Date and (y) sixty days following receipt by Issuer of its consolidated audit with respect to the business of Issuer and its Subsidiaries for the year ending December 31Date, 2018 and (b) following the Closing shall survive, and a claim may be brought with respect to any breach thereof, after the Closing in accordance with their respective terms, if specified, and otherwise, indefinitely. The indemnity contained in Section 8.2(b)(iv8.2(b)(iii) shall survive until the fifth (5th) anniversary of the Closing Date. The parties hereto hereby agree that the sole and exclusive remedy for any claim (whether such claim is framed in tort, contract or otherwise) arising out of a breach of this Agreement (other than with respect to any claim arising as a result of common law fraudFraud or that may be available to Buyer under the R&W Insurance Policy) shall be asserted pursuant to this ARTICLE Article VIII, Section 10.13 10.12 (Specific Performance; Damages Waiver) or, with respect to Losses incurred in connection with any Transferred Business Guarantees or Transferor Guarantees (as the case may be) on or after the Closing Date, Section 5.16; provided that, the parties shall not be entitled to indemnity under this ARTICLE Article VIII with respect to any Specified Current Assets and Assets, Specified Current Liabilities and Closing Date Indebtedness solely to the extent of the amount of such items as were expressly and specifically included in Closing Date Working Capitalthe calculation of the Final Purchase Price. After the end of the applicable period set forth in this Section 8.1, no claim for breach of such representations, warranties, covenants, obligations or agreements may be brought, and no action with respect thereto may be commenced, and no party shall have any liability or obligation with respect thereto, unless the Indemnitee gave written notice to the Indemnifying Party, specifying in reasonable detail to the extent known the breach of the representation, warranty, covenant, obligation or agreement claimed, on or before the expiration of such period, as applicable, in which case the right of the party providing such written notice to assert its right to indemnification as to the matters so noticed shall not expire until the dispute is fully resolved and/or any applicable obligation to remedy such breach has been fully satisfied.