Common use of Survival; Exclusive Remedy Clause in Contracts

Survival; Exclusive Remedy. The covenants, obligations and agreements contained herein to be performed (i) prior to the 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 Effective Time and (ii) following the Effective Time shall survive, and a claim may be brought with respect to any breach thereof, after the Effective Time in accordance with their respective terms, if specified, and otherwise, indefinitely; 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 writing by Spinco prior to the Cut-off Date or (y) relating to or arising from any breach of any covenants, obligations and agreements to be performed after the Distribution 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 fraud) shall be asserted pursuant to this ARTICLE VI, Section 10.16 or, with respect to Losses incurred in connection with any Spinco Guarantees or Harbor Guarantees (as the case may be) on or after the Effective Time, Section 7.3; provided, that the Parties shall not be entitled to indemnity under this ARTICLE 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 Capital 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 6.1, 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 covenants, obligations and agreements contained herein to be performed (ia) prior to the Effective Time shall survive for, and a claim may be brought with respect to any breach thereof any time prior to fifteen (15) months one year following the Effective Time and (iib) following the Effective Time shall survive, and a claim may be brought with respect to any breach thereof, after the Effective Time in accordance with their respective terms, if specified, and otherwise, indefinitely; 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 two years from the Distribution Date (such date, the “Cut-off Date”), except for claims (x) of which Harbor IP has been notified in writing by Spinco the Surviving Corporation prior to the Cut-off Date or (y) relating to or arising from any breach of any covenants, obligations and agreements to be performed after the Distribution 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 fraud) shall be asserted pursuant to this ARTICLE VI, Section 10.16 or, with respect to Losses incurred in connection with any Spinco Guarantees or Harbor IP Guarantees (as the case may be) on or after the Effective Time, Section 7.3; providedprovided that, that the Parties shall not be entitled to indemnity under this ARTICLE 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 Capital or the Spinco Closing Date Net Debt (without regard to the limitations contained in Section 5.1(d))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 Harbor set forth in Section 4.7 (“Information to be Supplied”) of the Merger Agreement and (y) the representations and warranties of Voyager IP set forth in Section 5.7 (“Information to be Supplied”) of the Merger Agreement 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 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 6.1, 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 (ia) prior to the Effective Time Closing shall survive for, and a claim may be brought with respect to any breach thereof any time prior to fifteen the later of (15x) months following the Effective Time first anniversary of the Closing Date and (iiy) 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 Effective Time Closing shall survive, and a claim may be brought with respect to any breach thereof, after the Effective Time Closing in accordance with their respective terms, if specified, and otherwise, indefinitely; provided that, without limiting . The indemnity contained in Section 8.2(b)(iv) shall survive until 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 fifth anniversary of 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 writing by Spinco prior to the Cut-off Date or (y) relating to or arising from any breach of any covenants, obligations and agreements to be performed after the Distribution Closing 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 VIVIII, Section 10.16 10.13 or, with respect to Losses incurred in connection with any Spinco Transferred Business Guarantees or Harbor Transferor Guarantees (as the case may be) on or after the Effective TimeClosing Date, Section 7.35.16; providedprovided that, that the Parties parties shall not be entitled to indemnity under this ARTICLE VI VIII 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 Capital 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 TimeCapital. After the end of the applicable period set forth in this Section 6.18.1, 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 Parties, intending to modify any applicable statute of limitations, agree that (a) the representations and warranties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall terminate and be of no further force and effect as of the Closing and shall not survive beyond the Closing for any purpose, and thereafter except in the case of Fraud, there shall be no Losses (whether in contract or in tort, in law or equity, or granted by statute) on the part of, nor shall any claim be made by, any Party or any of their respective Affiliates in respect thereof (provided that the foregoing shall not limit any claim or recovery that may be available to Buyer under any representation and warranty insurance policy that may be procured by Buyer at its sole expense in connection with the Contemplated Transactions), and (b) after the Closing, there shall be no Losses on the part of, nor shall any claim be made by, any Party or any of their respective Affiliates in respect of any covenant or agreement to be performed or to apply prior to the Closing. The covenants, obligations and or agreements contained herein to be performed (i) prior to the 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 Effective Time and (ii) following the Effective Time Closing shall survive, and a claim may be brought with respect to any breach thereof, after the Effective Time Closing in accordance with their respective terms, if specified, and otherwise, indefinitely; provided that, without limiting . The indemnity contained in Section 5.2(b)(iii) shall survive until 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 fifth (5th) anniversary of 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 writing by Spinco prior to the Cut-off Date or (y) relating to or arising from any breach of any covenants, obligations and agreements to be performed after the Distribution Closing Date. The Parties hereby agree that the sole and exclusive remedy for any claim following the Closing (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 fraudFraud) shall be asserted pursuant to this ARTICLE VI, Article V or Section 10.16 or, with respect to Losses incurred in connection with any Spinco Guarantees or Harbor Guarantees 10.18 of the MIPA (as the case may beSpecific Performance) on or after the Effective Time, Section 7.3Closing Date; provided, provided that the Parties shall not be entitled to indemnity under this ARTICLE VI Article V 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 the calculation of the Spinco Closing Date Working Capital 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 TimeFinal Purchase Price. After the end of the applicable period set forth in this Section 6.15.1, no claim for breach of such representationsany covenant, warranties, covenants, obligations obligation or agreements agreement may be brought, and no action Action with respect thereto may be commenced, and no party 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 covenant claimed, on or before the expiration of such period, as applicable, in which case the right of the party 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 covenants, obligations and agreements contained herein All covenants of the parties required to be performed completed following the Closing Date shall survive Closing indefinitely except for covenants which expressly provide for a shorter term. The representations and warranties of the parties contained in or made pursuant to this Agreement shall be terminated and extinguished upon the earlier of the end of the applicable statute of limitation or the end of the applicable survival period set forth in Section 9.5 above. Thereafter, except with respect to (i) fraud, willful misconduct, intentional misrepresentation, (ii) the Excluded Liabilities (including all Litigation Obligations), (iii) for claims raised prior to such termination and extinguishment and (iv) any Pre-Closing Environmental Liabilities, none of the Effective Time Seller Parties, Buyer Parties or any owner, partner, officer, director, manager, principal, agent or affiliate of any of the preceding shall survive for, and a claim may be brought subject to any liability of any nature whatsoever with respect to any breach thereof any time prior to fifteen (15) months following such representation or warranty. After the Effective Time Closing, except for the remedy of specific performance and (ii) following other equitable remedies, the Effective Time shall survive, and a claim may be brought with respect to any breach thereof, after indemnification obligations of the Effective Time in accordance with their respective terms, if specified, and otherwise, indefinitely; provided that, without limiting the foregoing, no claim may be asserted by any Spinco Indemnitee Seller Parties 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 writing by Spinco prior to the Cut-off Date or (y) relating to or arising from any breach of any covenants, obligations and agreements to 9 shall be performed after the Distribution Date. The Parties hereby agree that the sole and exclusive remedy of the Buyer Parties available at law or in equity for any claim (whether such claim is framed in tortbreach or inaccuracy, contract or otherwise) arising out alleged breach or inaccuracy, of a breach of this Agreement (other than with respect to any claim arising as a result of fraud) shall be asserted pursuant to this ARTICLE VI, Section 10.16 or, with respect to Losses incurred in connection with any Spinco Guarantees or Harbor Guarantees (as the case may be) on or after the Effective Time, Section 7.3; provided, that the Parties shall not be entitled to indemnity under this ARTICLE 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 Capital 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 6.1, 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, covenantcovenant or other terms, obligation conditions or agreement claimed, on or before the expiration of such period, as applicable, in which case the right obligations of the party providing such written notice Seller Parties under this Agreement, except with respect to assert its right (i) fraud, intentional misrepresentation and willful misconduct, (ii) the failure to indemnification as to perform obligations under a covenant or Ancillary Agreement; (iii) the matters so noticed shall not expire until Excluded Liabilities (including all Litigation Obligations) and (iv) any Pre-Closing Environmental Liabilities. After 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 contraryClosing, 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) Buyer Parties under this ARTICLE 9 shall be the last day sole and exclusive remedy of the applicable Seller Parties available at law or in equity for any breach or inaccuracy, or alleged breach or inaccuracy, of any representation, warranty, covenant periodor other terms, as applicableconditions or obligations of the Buyer Parties under this Agreement except for fraud, intentional mispresentation and willful misconduct.

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 (except, for the avoidance of doubt, for purposes of the R&W Insurance Policy). The covenants, obligations and agreements contained herein to be performed (ia) prior to the Effective Time Closing shall survive for, and a claim may be brought with respect to any breach thereof any time prior to fifteen thereof, until the first (151st) months following anniversary of the Effective Time Closing Date, and (iib) following the Effective Time Closing shall survive, and a claim may be brought with respect to any breach thereof, after the Effective Time Closing in accordance with their respective terms, if specified, and otherwise, indefinitely; provided that, without limiting . The indemnity contained in Section 8.2(b)(iii) shall survive until 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 fifth (5th) anniversary of 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 writing by Spinco prior to the Cut-off Date or (y) relating to or arising from any breach of any covenants, obligations and agreements to be performed after the Distribution Closing Date. The Parties 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 fraudFraud or that may be available to Buyer under the R&W Insurance Policy) shall be asserted pursuant to this ARTICLE VIArticle VIII, Section 10.16 10.12 (Specific Performance; Damages Waiver) or, with respect to Losses incurred in connection with any Spinco Business Guarantees or Harbor Transferor Guarantees (as the case may be) on or after the Effective TimeClosing Date; provided that, Section 7.3; provided, that the Parties parties shall not be entitled to indemnity under this ARTICLE VI Article VIII with respect to any Spinco Specified Current Assets and Spinco 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 the calculation of the Spinco Closing Date Working Capital 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 TimeFinal Purchase Price. After the end of the applicable period set forth in this Section 6.18.1, 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.