Common use of Survival; Knowledge of Breach Clause in Contracts

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Parties contained in Article V and the representations and warranties of Parent and Merger Sub contained in Article VI shall survive the Closing until the date that is the first anniversary of the Closing Date, except as provided in Section 7.23(b) and except for: (i) the representations and warranties set forth in Section 5.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 (Authorization), and Section 6.7 (Capitalization), which shall survive indefinitely; (ii) the representations and warranties set forth in Section 5.17 (Taxes) and Section 5.28 (Proxy Statement), which shall survive until the date that is 30 days after the expiration of the applicable statute of limitations; and (iii) the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary of the Closing Date; provided, however, that (x) any obligations under Section 10.2(a) and Section 10.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon the Closing and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied with. (b) The right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Parties contained in Article V this Agreement and the representations and warranties of Parent and Merger Sub contained in Article VI Exhibits hereto, shall survive the Closing until the date that is the first anniversary of the Closing DateApril 1, 2005, except as provided in Section 7.23(b) and except for: that (i) the representations and warranties set forth contained in Section 5.16 (Taxes) shall survive the Closing until 60 days after the expiration of the relevant statute of limitations applicable to claims made under Laws applicable to any such breached representation and warranty; (ii) the first and second sentences of Section 5.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) representations and warranties contained in Section 6.1 (OrganizationOrganization and Qualification), Section 6.2 (Authorization), and Section 6.7 (Capitalization), which shall survive indefinitely; (ii) the representations and warranties set forth contained in Section 5.17 Sections 5.19 and 6.11 (Taxes) and Section 5.28 (Proxy StatementBrokers), which and the first sentence of Section 5.12 (Assets) shall survive until the date that is 30 days after the expiration of the applicable statute of limitationsClosing indefinitely; and and (iii) the representations and warranties set forth contained in Section 5.15 5.11 (Employee Benefit Matters), which Intellectual Property) shall survive the Closing until the date that is the second fourth anniversary of thereof. The covenants contained in this Agreement shall survive the Closing Dateuntil the fifth anniversary thereof; provided, however, that (x) any obligations covenants relating to Taxes shall survive until 60 days after the expiration of the relevant statute of limitations applicable to claims made under Section 10.2(a) and Section 10.2(b) shall not terminate with respect Laws applicable to any Losses as such covenant. No claim may be made or suit instituted seeking indemnification pursuant to which the Indemnified Party shall have given Section 8.2 for any breaches or inaccuracy in any representation or warranty unless a written notice describing such breach or inaccuracy in accordance with Section 10.3 reasonable detail is provided to the an Indemnifying Party before the termination of within the survival period periods set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon the Closing and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied withSection 8.1(a). (b) The right to indemnification indemnification, payment of damages or any other remedy based on the representations, warranties, warranties and covenants and agreements in this Agreement or any Ancillary Agreements shall will not be affected by any investigation conducted at any timewith respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant warranty or agreementcovenant. The waiver of any condition based on the accuracy of any representation, representation or warranty, or on the performance of or compliance with any such covenant or agreementscovenant, will not affect the right to indemnification indemnification, payment of damages or any other remedy based on a breach of such representationsrepresentation, warranties, covenants and agreementswarranty or covenant.

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Seller Agreement Parties contained in Article V this Agreement or in any certificate delivered by them pursuant hereto and the representations and warranties of Parent and the Merger Sub contained in Article VI this Agreement or in any certificate delivered by them pursuant hereto shall survive the Closing until the date that is the first 18 month anniversary of the Closing Date, except as provided in Section 7.23(b) and except for: (i) the representations and warranties set forth in Section 5.1 4.1 (Organization and Qualification; Subsidiaries), Section 4.2 (Authorization), Section 4.4 (Capitalization), Section 4.7 (Title) and Section 4.22 (Brokers) (collectively, the "Seller Fundamental Representations") and in Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 (Authorization), and Section 6.7 5.7 (Capitalization), which shall survive indefinitely;; and (ii) the representations and warranties set forth in Section 5.17 4.15 (Environmental Matters), Section 4.16 (Employee Benefit Matters), Section 4.17 (Taxes) and Section 5.28 4.29 (Proxy Statement), which shall survive until the date that is 30 60 days after the expiration of the applicable statute of limitations; and (iii) the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary of the Closing Date; provided, however, that (x) any obligations under Section 10.2(a9.2(a) and Section 10.2(b9.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 9.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon on the 18 month anniversary of the Closing Date and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied withsurvive indefinitely. (b) The right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

Survival; Knowledge of Breach. (a) The covenants, agreements, representations and warranties of contained herein shall survive the ED&F Parties contained in Article V and Closing; provided, however, that the representations and warranties of Parent and Merger Sub contained in Article VI herein shall survive only until the expiration of the 15-month period following the Closing until Date (the date that is “Survival Period”), and no Claim for Losses resulting from any misrepresentation or breach of warranty shall be brought or made after the first anniversary of the Closing DateSurvival Period, except as provided in Section 7.23(b) and except forthat such 15-month time limitation shall not apply to: (i) Claims for misrepresentations and breaches of warranties with respect to Sections 4.1, 4.2, 4.4, 4.23, 5.1, 5.2, 5.3, 6.1, 6.2 and 6.3 and the representations and warranties set forth in first sentence of Section 5.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 (Authorization), and Section 6.7 (Capitalization)4.11, which shall survive indefinitelymay be asserted without limitation; (ii) the representations Claims for misrepresentations and breaches of warranties set forth in Section 5.17 (Taxes) with respect to Sections 4.15, 4.17 and Section 5.28 (Proxy Statement)4.18, which shall survive may be asserted until the date that is 30 60 days after the expiration of the applicable statute of limitationslimitations (the “Extended Survival Period”); and (iii) Claims for misrepresentations and breach of warranties that have been asserted and that are the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary subject of the Closing Date; provided, however, that (x) any obligations under Section 10.2(a) and Section 10.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given a written notice in accordance with Section 10.3 from a Company Indemnitee to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement Purchaser or from a Purchaser Indemnitee to be fully performed or complied with at or a Company Indemnitor prior to the Closing shall expire upon expiration of the Closing and (z) each covenant and agreement contained Survival Period or the Extended Survival Period, as applicable, which notice specifies in this Agreement to be performed or complied with after reasonable detail the Closing shall expire on nature of the date that is six months after the date that such covenant or agreement is required to be fully performed or complied withClaim. (b) The right to indemnification indemnification, payment for Losses or any other remedy based on representations, warranties, covenants and agreements obligations in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any timewith respect to, or any knowledge Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreementobligation. The waiver of any condition based on the accuracy inaccuracy of any representation, representation or warranty, or on the performance of or non-compliance with or breach of any such covenant or agreementsobligation, will shall not affect the right to indemnification indemnification, payment for Losses or any other remedy based on such representationsrepresentation, warranties, covenants and agreementsor obligations.

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Seller Agreement Parties contained in Article V this Agreement or in any certificate delivered by them pursuant hereto and the representations and warranties of Parent and the Merger Sub contained in this Agreement or in any certificate delivered by them pursuant hereto, and the indemnification obligations set forth in this Article VI IX, shall survive the Closing until the date that is the first 18 month anniversary of the Closing Date, except as provided in Section 7.23(b) and except for: (i) the representations and warranties set forth in Section 5.1 4.1 (Organization and Qualification; Subsidiaries), Section 5.2 4.2 (Authorization), Section 4.4 (Capitalization), Section 4.7 (Title) and Section 5.4 4.22 (Transferred CompaniesBrokers) (collectively, the “ED&F Seller Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 5.2 (Authorization), ) and Section 6.7 5.7 (Capitalization), which shall survive indefinitely;; and (ii) the representations and warranties set forth in Section 5.17 4.15 (Environmental Matters), Section 4.16 (Employee Benefit Matters), Section 4.17 (Taxes) and Section 5.28 4.29 (Proxy Statement), which shall survive until the date that is 30 60 days after the expiration of the applicable statute of limitations; and (iii) the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary of the Closing Date; provided, however, that (x) any obligations under Section 10.2(a9.2(a) and Section 10.2(b9.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 9.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon on the 18 month anniversary of the Closing Date and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied withsurvive indefinitely. (b) The right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

Survival; Knowledge of Breach. (a) The covenants, obligations, representations and warranties of under this Agreement shall survive the ED&F Parties contained in Article V and Closing, provided, however, that the representations and warranties of Parent and Merger Sub contained in Article VI herein shall survive only until the earlier to occur of (i) the issuance of the audited financial statements for Newco for the fiscal year ending June 30, 2008 or (ii) the expiration of the 15-month period following the Closing until Date (the date that is “Survival Period”), and no Claim for Losses resulting from any misrepresentation or breach of warranty shall be brought or made after the first anniversary of the Closing DateSurvival Period, except as provided in Section 7.23(b) and except forthat such time limitation shall not apply to: (i) the representations Claims for misrepresentations and breaches of warranties set forth in Section 5.1 Sections 3.1 and 4.1 (Organization and QualificationAuthority; SubsidiariesEnforceability), Section 5.2 (Authorization) Sections 3.4 and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 4.4 (Organization), Section 6.2 (Authorization), Sections 3.5 and Section 6.7 4.5 (Capitalization), the first sentence of Sections 3.11 and 4.11 (Title to Assets), Sections 3.22 and 4.22 (Securities Act) and Sections 3.23 and 4.23 (Brokers), which shall survive indefinitelymay be asserted without limitation; (ii) the representations Claims for misrepresentations and breaches of warranties set forth in Section 5.17 Sections 3.15 and 4.15 (Environmental), Sections 3.17 and 4.17 (Employee Benefit Matters) and Sections 3.18 and 4.18 (Taxes) and Section 5.28 (Proxy Statement), which shall survive may be asserted until the date that is 30 days after the expiration of the applicable statute of limitations; (iii) Claims with respect to Section 3.8 and 4.8 (Compliance with Laws) for misrepresentations and breaches of warranties solely with respect to Losses arising out of any Regis Institution’s or any Empire Institution’s participation in Title IV Programs, or out of any requirement imposed by the DOE under the program participation agreement of any Regis Institution or Empire Institution, or under any other limitations or conditions imposed by written notice from the DOE (“Title IV Claims”), which may be asserted until the expiration of the 36-month period following the Closing Date; for the avoidance of doubt, claims with respect to Section 3.8 and 4.8 for misrepresentations and breaches that do not relate to Title IV Claims shall survive only until the end of the Survival Period; (iv) Claims arising from fraud of a party; and (iiiv) Claims for misrepresentations and breach of warranties that have been asserted and that are the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary subject of the Closing Date; provided, however, that (x) any obligations under Section 10.2(a) and Section 10.2(b) shall not terminate with respect to any Losses as to which the a written notice from an Indemnified Party shall have given notice in accordance with Section 10.3 to the an Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon expiration of the Closing and (z) each covenant and agreement contained relevant time frames set forth above in this Agreement to be performed or complied with after Section 11.1(a), if applicable, which notice specifies in reasonable detail the Closing shall expire on nature of the date that is six months after the date that such covenant or agreement is required to be fully performed or complied withClaim. (b) The right to indemnification indemnification, payment for Losses or any other remedy based on representations, warranties, covenants and agreements obligations in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any timewith respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreementobligation. The waiver of any condition based on the accuracy of any representation, representation or warranty, or on the compliance with or performance of or compliance with any such covenant or agreementsobligation, will shall not affect the right to indemnification indemnification, payment for Losses or any other remedy based on such representationsrepresentation, warrantieswarranty, covenants and agreementscovenant or obligation.

Survival; Knowledge of Breach. (a) (i) The representations and warranties of the ED&F Parties contained in Article V this Agreement, other than those contained in Section 5.9 (Environmental), Section 5.11 (Intellectual Property), the first sentence of Section 5.13 (Assets), Section 5.16 (Taxes), Section 5.19 and the Section 6.9 (Brokers) (such representations and warranties of Parent and Merger Sub contained in Article VI hereinafter referred to as the "Special Representations"), shall survive the Closing until the date that is the first anniversary of eighteen (18) months after the Closing Date, except as provided in Section 7.23(b) and except for: (i) the representations and warranties set forth in Section 5.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 (Authorization), and Section 6.7 (Capitalization), which shall survive indefinitely; (ii) the representations and warranties set forth contained in Section 5.17 5.11 (Intellectual Property) shall survive the Closing until the date which is three (3) years after the Closing Date; (iii) the representations and warranties contained in Section 5.16 (Taxes) and Section 5.28 (Proxy Statement), which shall survive until the date that is 30 60 days after following the expiration of the applicable statute of limitations; and (iiiiv) the representations and warranties contained in the first sentence of Section 5.13 (Assets), and Sections 5.19 and 6.9 (Brokers) shall survive the Closing indefinitely; (v) the representations and warranties contained in Section 5.9 (Environmental Matters) shall survive the Closing until the date which is five (5) years after the Closing Date; and (vi) the covenants contained in this Agreement shall survive the Closing indefinitely except the covenant set forth in Section 5.15 7.2 (Employee Benefit Matters), Conduct of Business) which shall survive the Closing until the date that is the second anniversary of eighteen (18) months after the Closing Date; provided, however, that (x) any obligations under Section 10.2(a) and Section 10.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon the Closing and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied with. (b) The right to indemnification indemnification, payment of damages or any other remedy based on the representations, warranties, covenants and agreements obligations in this Agreement or any Ancillary Agreements shall will not be affected by any investigation conducted at any timewith respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreementobligation. The waiver of any condition based on the accuracy of any representation, representation or warranty, or on the performance of or compliance with any such covenant or agreementsobligation, will not affect the right to indemnification indemnification, payment of damages or any other remedy based on such representationsrepresentation, warranties, covenants and agreementsor obligations.

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Seller Agreement Parties contained in Article V this Agreement or in any certificate delivered by them pursuant hereto and the representations and warranties of Parent and the Merger Sub contained in Article VI this Agreement or in any certificate delivered by them pursuant hereto shall survive the Closing until the date that is the first 18 month anniversary of the Closing Date, except as provided in Section 7.23(b) and except for: (i) the representations and warranties set forth in Section 5.1 4.1 (Organization and Qualification; Subsidiaries), Section 5.2 4.2 (Authorization), Section 4.4 (Capitalization), Section 4.7 (Title) and Section 5.4 4.22 (Transferred CompaniesBrokers) (collectively, the “ED&F Seller Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 5.2 (Authorization), Section 5.5 (Brokers) and Section 6.7 5.7 (Capitalization), which shall survive indefinitely;; and (ii) the representations and warranties set forth in Section 5.17 4.15 (Environmental Matters), Section 4.16 (Employee Benefit Matters), Section 4.17 (Taxes), Section 4.29 (Proxy Statement) and Section 5.28 5.11 (Proxy Statement), ) which shall survive until the date that is 30 60 days after the expiration of the applicable statute of limitations; and (iii) the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary of the Closing Date; provided, however, that (x) any obligations under Section 10.2(a9.2(a) and Section 10.2(b) shall 9.2(b)shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 9.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon on the 18 month anniversary of the Closing Date and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied withsurvive indefinitely. (b) The right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Parties contained in Article V and the representations and warranties of Parent and Merger Sub contained in Article VI this Agreement shall survive the Closing until the date that is the first anniversary of the Closing Date, except as provided in Section 7.23(beighteen (18) and except for: (i) the representations and warranties set forth in Section 5.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 (Authorization), and Section 6.7 (Capitalization), which shall survive indefinitely; (ii) the representations and warranties set forth in Section 5.17 (Taxes) and Section 5.28 (Proxy Statement), which shall survive until the date that is 30 days months after the expiration of the applicable statute of limitations; and (iii) the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary of the Closing DateClosing; provided, however, that the representations and warranties contained in, Section 3.13 (xTaxes) shall survive the Closing until thirty (30) days after the expiration of any obligations under applicable statute of limitations period (after giving effect to any waivers and extensions thereof), the representations and warranties contained in Section 10.2(a3.14 (Environmental Matters) shall survive the Closing until three (3) years after the Closing Date and the representations and warranties contained in Sections 3.1 (Organization), 3.2 (Authorization), 3.3 (Capitalization of the Acquired Companies), the first sentence in Section 3.10(a) and Section 10.2(b4.1 (Incorporation and Authority) shall not terminate with respect to any Losses as to which survive the Indemnified Party shall have given notice in accordance with Section 10.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the Closing indefinitely. The covenants and agreements contained in this Agreement which relate to the performance of obligations after the Closing shall survive the Closing for the periods contemplated by their terms, but in any event, not less than the earlier of (i) three years from the Closing Date and (ii) thirty (30) days after expiration of any applicable statute of limitations period (after giving effect to any waivers and extensions thereof); provided, however, that the covenant contained in Section 7.5 (Tax Matters) shall survive the Closing until thirty (30) days after expiration of any applicable statute of limitations period (after giving effect to any waivers and extensions thereof). Any claim for breach of any of the representations and warranties involving actual fraud or a willful misrepresentation may be fully performed made at any time following the Closing Date subject only to applicable limitation periods imposed by Law. (b) No Party hereto shall be deemed to have breached any representation, warranty or complied with at covenant contained herein on or prior to Closing if (i) such Party shall have notified the other Party hereto in writing, on or prior to the Closing shall expire upon Date, of the breach of, or inaccuracy in, or of any facts or circumstances constituting or resulting in the breach of or inaccuracy in, such representation, warranty or covenant, and such other Party has permitted the Closing and (z) each covenant and agreement contained to occur under circumstances in which such other Party either had the right to terminate this Agreement pursuant to be performed Section 9.1(d) or complied the notifying Party has provided such other Party with after the Closing shall expire on the date that is six months after the date a written notice stating that such covenant or agreement is required to be fully performed or complied with. other Party may terminate this Agreement at any time during the next succeeding ten (b10) The days as if it otherwise had the right to indemnification terminate this Agreement pursuant to Section 9.1(d), in which case, for purposes of this Agreement, such other Party is thereby deemed to have waived such breach or inaccuracy or (ii) any Seller Indemnified Party or any other remedy based on representationsBuyer Indemnified Party, warrantiesas applicable, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after was aware prior to the execution and delivery of this Agreement or of the Closing Datebreach of, with respect to the accuracy or inaccuracy of or compliance within, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, representation or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Parties contained in Article V and the representations and warranties of Parent and Merger Sub contained in Article VI shall survive the Closing until the date that is the first anniversary of the Closing Date, except as provided in Section 7.23(b) and except for: (i) the representations and warranties set forth in Section 5.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “"ED&F Fundamental Representations”") and in Section 6.1 (Organization), Section 6.2 (Authorization), and Section 6.7 (Capitalization), which shall survive indefinitely; (ii) the representations and warranties set forth in Section 5.17 (Taxes) and Section 5.28 (Proxy Statement), which shall survive until the date that is 30 days after the expiration of the applicable statute of limitations; and (iii) the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary of the Closing Date; provided, however, that (x) any obligations under Section 10.2(a) and Section 10.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon the Closing and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied with. (b) The right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

Survival; Knowledge of Breach. (a) (i) The representations and warranties of the ED&F Parties contained in Article V this Agreement, other than those contained in Section 5.9 (Environmental), Section 5.11 (Intellectual Property), the first sentence of Section 5.13 (Assets), Section 5.16 (Taxes), Section 5.19 and the Section 6.9 (Brokers) (such representations and warranties of Parent and Merger Sub contained in Article VI hereinafter referred to as the “Special Representations”), shall survive the Closing until the date that is the first anniversary of eighteen (18) months after the Closing Date, except as provided in Section 7.23(b) and except for: (i) the representations and warranties set forth in Section 5.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 (Authorization), and Section 6.7 (Capitalization), which shall survive indefinitely; (ii) the representations and warranties set forth contained in Section 5.17 5.11 (Intellectual Property) shall survive the Closing until the date which is three (3) years after the Closing Date; (iii) the representations and warranties contained in Section 5.16 (Taxes) and Section 5.28 (Proxy Statement), which shall survive until the date that is 30 60 days after following the expiration of the applicable statute of limitations; and (iiiiv) the representations and warranties contained in the first sentence of Section 5.13 (Assets), and Sections 5.19 and 6.9 (Brokers) shall survive the Closing indefinitely; (v) the representations and warranties contained in Section 5.9 (Environmental Matters) shall survive the Closing until the date which is five (5) years after the Closing Date; and (vi) the covenants contained in this Agreement shall survive the Closing indefinitely except the covenant set forth in Section 5.15 7.2 (Employee Benefit Matters), Conduct of Business) which shall survive the Closing until the date that is the second anniversary of eighteen (18) months after the Closing Date; provided, however, that (x) any obligations under Section 10.2(a) and Section 10.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon the Closing and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied with. (b) The right to indemnification indemnification, payment of damages or any other remedy based on the representations, warranties, covenants and agreements obligations in this Agreement or any Ancillary Agreements shall will not be affected by any investigation conducted at any timewith respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreementobligation. The waiver of any condition based on the accuracy of any representation, representation or warranty, or on the performance of or compliance with any such covenant or agreementsobligation, will not affect the right to indemnification indemnification, payment of damages or any other remedy based on such representationsrepresentation, warranties, covenants and agreementsor obligations.

Survival; Knowledge of Breach. (a) The representations and warranties of the ED&F Company Agreement Parties contained in Article V this Agreement or in any certificate delivered by them pursuant hereto and the representations and warranties of Parent and Merger Sub JetPay contained in Article VI this Agreement or in any certificate delivered by them pursuant hereto, and the indemnification obligations set forth in this ARTICLE IX, shall survive the Closing until the date that is the first 12-month anniversary of the Closing Date, except as provided in Section 7.23(b) and except for: (i) for the representations and warranties set forth in Section 5.1 4.1 (Organization and Qualification; Subsidiaries), Section 5.2 4.2 (Authorization), Section 4.5 (Capitalization), Section 4.8 (Title), Section 4.16 (Environmental Matters), Section 4.17 (Employee Benefit Matters), Section 4.18 (Taxes) and Section 5.4 4.21 (Transferred CompaniesBrokers), Section 6.1 (Title) and Section 6.2 (Authorization) (collectively, the “ED&F Company Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 5.2 (Authorization), ) and Section 6.7 5.7 (Capitalization), which shall survive indefinitely; (ii) the representations and warranties set forth in Section 5.17 (Taxes) and Section 5.28 (Proxy Statement), all of which shall survive until the date that is 30 60 days after the expiration of the applicable statute of limitations; and (iii) the representations and warranties set forth in Section 5.15 (Employee Benefit Matters), which shall survive until the date that is the second anniversary of the Closing Datelimitations without reference to documents under seal; provided, however, that (x) any obligations under Section 10.2(a9.2(a) and Section 10.2(b9.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 9.3 to the Indemnifying Party before the termination of the applicable survival period set forth aboveabove (the “Survival Period”), (y) the covenants and agreements contained in this Agreement to be fully performed or complied with at or prior to the Closing shall expire upon on the 12-month anniversary of the Closing Date and (z) each covenant and agreement contained in this Agreement to be performed or complied with after the Closing shall expire on survive until the date that is six months after expiration of the date that such covenant applicable performance or agreement is required to be fully performed or complied withcompliance period hereunder. (b) The right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

Survival; Knowledge of Breach. (a) The representations representations, warranties and warranties covenants (to the extent such covenants relate to the performance of obligations prior to the ED&F Parties Closing) contained in Article V and the representations and warranties of Parent and Merger Sub contained in Article VI this Agreement shall survive the Closing until the date that is fifteen (15) months after the first anniversary of the Closing DateClosing; provided, except as provided in Section 7.23(b) and except for: (i) however, that the representations and warranties set forth contained in Section 5.1 Sections 3.1 (Organization and Qualification; Subsidiaries), Section 5.2 (Authorization) and Section 5.4 (Transferred Companies) (collectively, the “ED&F Fundamental Representations”) and in Section 6.1 (Organization), Section 6.2 3.2 (Authorization), 3.3 (Capitalization of the Acquired Companies) and Section 6.7 4.1 (Capitalization), which Incorporation and Authority) shall survive the Closing indefinitely; (ii) , the representations representations, warranties and warranties set forth covenants contained in Section 5.17 Sections 3.15 (Taxes) and Section 5.28 7.5 (Proxy Statement), which Tax Matters) shall survive the Closing until the date that is 30 days after the expiration of the applicable statute of limitations; and limitations (iii) including all periods of extension and tolling), the representations and warranties set forth contained in Section 5.15 3.18 (Employee Benefit Environmental Matters), which ) shall survive the Closing until the date that is five (5) years after the second anniversary of Closing Date and the representations and warranties contained in Section 3.20 (Employee Benefit Matters) shall survive the Closing until the date that is six (6) years after the Closing Date; provided, however, that (x) any obligations under Section 10.2(a) and Section 10.2(b) shall not terminate with respect to any Losses as to which the Indemnified Party shall have given notice in accordance with Section 10.3 to the Indemnifying Party before the termination of the survival period set forth above, (y) the . The covenants and agreements contained in this Agreement which relate to the performance of obligations after the Closing shall survive the Closing for the periods contemplated by their terms. (b) No Party shall be fully performed deemed to have breached any representation or complied with at warranty contained herein as a result of any matter arising between the date hereof and the Closing Date (a “Post-Signing Matter”) if such Party shall have notified the other Party of such Post-Signing Matter in writing on or prior to the Closing shall expire upon Date and such other Party has permitted the Closing and (z) each covenant and agreement contained to occur under circumstances in which such other Party either had the right to terminate this Agreement pursuant to be performed or complied with after the Closing shall expire on the date that is six months after the date that such covenant or agreement is required to be fully performed or complied with. (b) The right to indemnification or any other remedy based on representationsSection 9.1(d), warrantiesin which case, covenants and agreements in this Agreement or any Ancillary Agreements shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery for purposes of this Agreement Agreement, such other Party is thereby deemed to have waived any breach of any representation or the Closing Date, warranty with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation, or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreementsPost-Signing Matter.