Common use of Survival of Representations and Warranties Indemnification Clause in Contracts

Survival of Representations and Warranties Indemnification. 8.1 Notwithstanding any right of either Party to investigate the affairs of the other party and its Shareholders, each Party has the right to rely fully upon representations, warranties, covenants and agreements of the other Parties contained in this Agreement or in any document delivered to one by the other or any of their representatives, in connection with the transactions contemplated by this Agreement. All representations and warranties made herein (or in the certificates to be delivered pursuant to Sections 5.1 and 5.2 hereof) by the parties to this Agreement and their respective obligations, covenants and agreements to be performed pursuant to the terms hereof, shall survive the Effective Time, provided, that, the representations and warranties made herein (or in such certificates) by the parties shall terminate on the date which is 90 days following the completion of the audited consolidated financial statements of Coronado for the year ending December 31, 2010, except that the representations and warranties set forth in Section 3.1 (Organization and Good Standing); Section 3.2 (Corporate Authority and Enforceability), Section 3.3 (Capitalization), Section 3.12 (Brokers and Finder), Section 4.1 (Organization and Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes) and Section 4.14 (Brokers and Finders) shall survive the Closing Time until the expiration of the period ending for the applicable statute of limitations. Notwithstanding the foregoing, if written notice of any matter setting forth in reasonable detail a claim for a breach of any representation or warranty is given to Vampt in writing pursuant to this Agreement prior to the end of the applicable survival period, any such representation or warranty that would otherwise terminate shall be deemed to survive solely with respect to such matter until such matter is resolved.

Survival of Representations and Warranties Indemnification. 8.1 Notwithstanding any right of either Party to investigate the affairs of the other party (a) All representations and its Shareholders, each Party has the right to rely fully upon representations, warranties, covenants and agreements of the other Parties warranties contained in this Agreement or in any document delivered to one by shall be deemed made at the other or any of their representatives, in connection with Initial Warrants Closing and at the transactions contemplated by this Agreement. All representations Second Closing as if made at such time and warranties made herein (or in the certificates to be delivered pursuant to Sections 5.1 and 5.2 hereof) by the parties to this Agreement and their respective obligations, covenants and agreements to be performed pursuant to the terms hereof, shall survive the Effective Time, provided, that, the representations and warranties for twelve (12) months after having been made herein (or in such certificates) by the parties shall terminate on the date which is 90 days following the completion of the audited consolidated financial statements of Coronado for the year ending December 31, 2010deemed made, except that the representations and warranties set forth in (i) with respect to claims asserted pursuant to this Section 3.1 (Organization and Good Standing); Section 3.2 (Corporate Authority and Enforceability), Section 3.3 (Capitalization), Section 3.12 (Brokers and Finder), Section 4.1 (Organization and Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes) and Section 4.14 (Brokers and Finders) shall survive the Closing Time until 11.01 before the expiration of the period ending for applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Section 4.15 shall survive until 120 days after the expiration of the applicable statute of limitationslimitations for the Tax liabilities in question and (iii) Sections 4.01, 4.02, 4.03, 4.04, 4.05(a)(i), 4.16, 5.01, 5.02 and 5.03(a)(i) shall survive indefinitely. Notwithstanding A claim shall be made or commenced hereunder by the foregoing, if Indemnified Party delivering to the Indemnifying Party a written notice of any matter setting forth specifying in reasonable detail a claim the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for a the claim. (b) The Company agrees to indemnify and hold harmless the Investor and its officers, directors, employees, duly authorized agents and affiliates from and against all losses, claims, damages, diminution in value of the Purchased Securities, expenses (including reasonable counsel fees and disbursements) or liabilities (“Losses”) that are related to or arise out of (1) any breach by the Company of any representation of its representations or warranty is given to Vampt warranties in writing pursuant to this Agreement prior or (2) failure to perform any of the covenants or agreements made by the Company in this Agreement. The term “Losses” as used in this Section 11.01 is not limited to matters asserted by third parties against an Indemnified Party, but includes Losses incurred or sustained by an Indemnified Party in the absence of third party claims, and shall be net of any Tax benefit available to the end Indemnified Party. (c) The Investor agrees to indemnify and hold harmless the Company and its officers, directors, employees, duly authorized agents and affiliates from and against all Losses that are related to or arise out of (1) any breach by the Investor of any of its representations or warranties in this Agreement or (2) failure to perform any of the applicable survival period, any such representation covenants or warranty that would otherwise terminate shall be deemed to survive solely with respect to such matter until such matter is resolvedagreements made by the Investor in this Agreement.

Survival of Representations and Warranties Indemnification. 8.1 Notwithstanding any right Survival of either Party Representations, Warranties, Covenants and ------------------------------------------------------ Agreements. Except to investigate the affairs of extent otherwise set forth herein, the other party and its Shareholders, each Party has the right to rely fully upon ---------- representations, warranties, covenants and agreements of the other Parties contained in this Agreement or in any document delivered to Sellers, DNB and the Purchaser will survive the Applicable Closing (a) for a period of one by the other or any of their representatives, in connection (1) year with the transactions contemplated by this Agreement. All representations and warranties made herein (or in the certificates to be delivered pursuant to Sections 5.1 and 5.2 hereof) by the parties to this Agreement and their respective obligations, covenants and agreements to be performed pursuant respect to the terms hereof, shall survive the Effective Time, provided, that, the representations and warranties made herein (or in such certificates) matters covered by the parties shall terminate on the date which is 90 days following the completion of the audited consolidated financial statements of Coronado for the year ending December 31, 2010, except that the representations and warranties set forth in Section 3.1 Articles 3 and 4, (Organization and Good Standing); Section 3.2 b) until sixty (Corporate Authority and Enforceability), Section 3.3 (Capitalization), Section 3.12 (Brokers and Finder), Section 4.1 (Organization and Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes60) and Section 4.14 (Brokers and Finders) shall survive the Closing Time until days after the expiration of the period ending for applicable statue of limitations (including all periods of extension, whether automatic or permissive) with respect to the applicable statute of limitations. Notwithstanding covenants and agreements related to the foregoingExcluded Liabilities or (c) with respect to each other covenant or agreement contained in this Agreement, if written notice in accordance with its terms; provided -------- however, that subject to Section 8.7, no party shall be precluded from pursuing ------- a recovery in respect of any matter setting forth in reasonable detail a claim for a breach of any representation representation, warranty, covenant or warranty is given to Vampt in writing pursuant to this Agreement prior to the end of the applicable survival period, any such representation or warranty agreement that would otherwise terminate in accordance with clause (a) or (b) above if a Claim Notice shall be deemed have been given under this Article 8 or Notice of a Dispute shall have been provided to survive solely with respect the other party on or prior to such matter termination date, until such matter is resolvedthe related claim for indemnification or, in the case of the Sellers or DNB, other recovery, has been satisfied or otherwise resolved as provided in this Article 8 and/or Section 10.10.

Survival of Representations and Warranties Indemnification. 8.1 Notwithstanding any right (a) The representations and warranties of either Party to investigate the affairs of the other party and its Shareholders, each Party has the right to rely fully upon representations, warranties, covenants and agreements of the other Parties contained Sellers set forth in this Agreement or in any document delivered to one by the other or any of their representatives, in connection with the transactions contemplated by this Agreement. All representations and warranties made herein (or in the certificates to be certificate delivered pursuant to Sections 5.1 Section 12.3(a) or Section 12.3(b) shall survive for a period of six months after the Closing Date. (b) On and 5.2 hereof) by the parties after Closing, Buyer agrees to this Agreement indemnify and hold Sellers and their respective obligationsdirectors, covenants officers, employees, Affiliates, agents, successors and agreements permitted assigns harmless from and against any and all losses arising or resulting primarily from: (i) any and all Assumed Liabilities; (ii) any breach by Buyer of its representation or warranties in this Agreement; (iii) the post-Closing operation of the Business; and (iv) all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys’ fees, incident to the foregoing (each a “Post-Closing Loss” and, collectively, “Post-Closing Losses”). Buyer’s total indemnification liability under this Section 14.4(c) shall be limited to $15,000,000. (c) If any third party shall notify any Party (the “Indemnified Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Section 14.4, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing. Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be performed withheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party. Unless and until an Indemnifying Party assumes the defense of the Third Party Claim, however, the Indemnified Party may defend against the Third Party Claim in any manner he, she, or it reasonably may deem appropriate. In no event will the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of each of the Indemnifying Parties (not to be withheld unreasonably). (d) In the event that any legal proceedings shall be instituted or that any claim or demand shall be asserted by Buyer in respect of which indemnification may be sought from Sellers pursuant to the terms hereofprovisions of this Section 14.4, such claim shall survive the Effective Time, provided, that, the representations constitute an administrative claim and warranties made herein (or in such certificates) shall be adjudicated by the parties shall terminate on the date which is 90 days following the completion of the audited consolidated financial statements of Coronado for the year ending December 31, 2010, except that the representations and warranties set forth in Section 3.1 (Organization and Good Standing); Section 3.2 (Corporate Authority and Enforceability), Section 3.3 (Capitalization), Section 3.12 (Brokers and Finder), Section 4.1 (Organization and Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes) and Section 4.14 (Brokers and Finders) shall survive the Closing Time until the expiration of the period ending for the applicable statute of limitations. Notwithstanding the foregoing, if written notice of any matter setting forth in reasonable detail a claim for a breach of any representation or warranty is given to Vampt in writing pursuant to this Agreement prior to the end of the applicable survival period, any such representation or warranty that would otherwise terminate shall be deemed to survive solely with respect to such matter until such matter is resolvedBankruptcy Court.

Survival of Representations and Warranties Indemnification. 8.1 Notwithstanding any right (a) The representations and warranties of either Party to investigate the affairs of the other party and its Shareholders, each Party has the right to rely fully upon representations, warranties, covenants and agreements of the other Parties contained Sellers set forth in this Agreement or in any document delivered to one by the other or any of their representatives, in connection with the transactions contemplated by this Agreement. All representations and warranties made herein (or in the certificates to be certificate delivered pursuant to Sections 5.1 Section 12.3(a) or Section 12.3(b) shall survive for a period of six months after the Closing Date. (b) On and 5.2 hereof) by the parties after Closing, Buyer agrees to this Agreement indemnify and hold Sellers and their respective obligationsdirectors, covenants officers, employees, Affiliates, agents, successors and agreements permitted assigns harmless from and against any and all losses arising or resulting primarily from: (i) any and all Assumed Liabilities; (ii) any breach by Buyer of its representation or warranties in this Agreement; (iii) the post-Closing operation of the Business; and (iv) all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys’ fees, incident to the foregoing (each a “Post-Closing Loss” and, collectively, “Post-Closing Losses”). Buyer’s total indemnification liability under this Section 14.4(c) shall be limited to $15,000,000. (c) If any third party shall notify any Party (the “Indemnified Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Section 14.4, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing. Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be performed withheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party. Unless and until an Indemnifying Party assumes the defense of the Third Party Claim, however, the Indemnified Party may defend Back to Contents against the Third Party Claim in any manner he, she, or it reasonably may deem appropriate. In no event will the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of each of the Indemnifying Parties (not to be withheld unreasonably). (d) In the event that any legal proceedings shall be instituted or that any claim or demand shall be asserted by Buyer in respect of which indemnification may be sought from Sellers pursuant to the terms hereofprovisions of this Section 14.4, such claim shall survive the Effective Time, provided, that, the representations constitute an administrative claim and warranties made herein (or in such certificates) shall be adjudicated by the parties shall terminate on the date which is 90 days following the completion of the audited consolidated financial statements of Coronado for the year ending December 31, 2010, except that the representations and warranties set forth in Section 3.1 (Organization and Good Standing); Section 3.2 (Corporate Authority and Enforceability), Section 3.3 (Capitalization), Section 3.12 (Brokers and Finder), Section 4.1 (Organization and Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes) and Section 4.14 (Brokers and Finders) shall survive the Closing Time until the expiration of the period ending for the applicable statute of limitations. Notwithstanding the foregoing, if written notice of any matter setting forth in reasonable detail a claim for a breach of any representation or warranty is given to Vampt in writing pursuant to this Agreement prior to the end of the applicable survival period, any such representation or warranty that would otherwise terminate shall be deemed to survive solely with respect to such matter until such matter is resolvedBankruptcy Court.

Survival of Representations and Warranties Indemnification. 8.1 Notwithstanding any right 1Survival. Subject to the limitations and other provisions of either Party to investigate the affairs of the other party and its Shareholders, each Party has the right to rely fully upon representations, warranties, covenants and agreements of the other Parties contained in this Agreement or in any document delivered to one by the other or any of their representatives, in connection with the transactions contemplated by this Agreement. All representations and warranties made herein (or in the certificates to be delivered pursuant to Sections 5.1 and 5.2 hereof) by the parties to this Agreement and their respective obligations, covenants and agreements to be performed pursuant to the terms hereof, shall survive the Effective Time, provided, that, the representations and warranties made herein (or of the Parties hereto, and the right of a party hereto to bring an indemnifiable claim under this Article X in such certificates) by respect of any breach thereof, shall survive the parties Closing and shall terminate on remain in full force and effect until the date which that is 90 days [***] following the completion Closing (the “General Indemnity Expiration Date”); provided that (i) the right of Purchaser to bring a claim in respect of the audited consolidated financial statements representations of Coronado Seller in Section 5.10 shall survive the Closing and shall remain in full force and effect until the date that is [***] following the Closing and (ii) the right of Purchaser and Seller to bring a claim in respect of the Seller Fundamental Representations and the Purchaser Fundamental Representations, respectively, will survive until the Fundamental Claim Expiration Date, taking into account any extensions or waivers thereof. Except to the extent expressly provided herein, no claim for breach of representation or warranty may be brought by any party after such applicable survival period set forth in the year ending December 31preceding sentence. The covenants, 2010, except that the representations agreements and warranties obligations set forth in Section 3.1 (Organization and Good Standing); Section 3.2 (Corporate Authority and Enforceability“Fundamental Obligations”), Section 3.3 (Capitalization), Section 3.12 (Brokers and Finder), Section 4.1 (Organization and Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes) and Section 4.14 (Brokers and Finders) the right of the Seller Indemnified Parties to bring an indemnifiable claim under this Article X in respect of any breach thereof shall survive the Closing Time until and shall remain in full force and effect the expiration of date that such covenants, agreements and obligations are fully performed. The Parties acknowledge that the period ending time periods set forth in this Article X for the applicable statute assertion of limitations. Notwithstanding the foregoing, if written notice of any matter setting forth in reasonable detail a claim for a breach of any representation or warranty is given to Vampt in writing pursuant to claims under this Agreement prior are the result of arm’s length negotiation among the parties and that they intend for the time periods to be enforced as agreed by the end of the applicable survival period, any such representation or warranty that would otherwise terminate shall be deemed to survive solely with respect to such matter until such matter is resolvedParties.

Survival of Representations and Warranties Indemnification. 8.1 Notwithstanding any right 13.1 Survival of either Party to investigate the affairs Representations, Warranties and Covenants. All of the other party and its Shareholders, each Party has the right to rely fully upon representations, warrantieswarranties and covenants of each Asset Seller, covenants the Company, E&EC and agreements of the other Parties LLC contained in this Agreement herein or in any document document, certificate or other instrument required to be delivered to one by hereunder shall survive the other or any of their representativesClosing Date and continue in full force and effect until 5:00 p.m., in connection with Pacific Time, on the transactions contemplated by this Agreement. All date two (2) years after the Closing Date; provided that the representations and warranties made herein in Sections 5.18(a) through (or in the certificates to be delivered pursuant to Sections 5.1 and 5.2 hereofl) by the parties to this Agreement and their respective obligations, covenants and agreements to be performed pursuant to the terms hereof, only shall survive until the Effective Time, third anniversary of the Closing Date; provided, thatfurther, that the representation and warranties in Section 5.18(m) only shall survive until 18 months following the Closing Date; provided, further, the representations and warranties made herein (or in such certificates) by Section 5.13 shall survive until the parties shall terminate on the date which is 90 days following the completion fifth anniversary of the audited consolidated financial statements of Coronado for the year ending December 31Closing Date; provided, 2010further, except that the representations and warranties in Section 5.23 shall survive until the eighth anniversary of the Closing Date. This Section 13.1 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Closing. The representations and warranties shall not be affected by any examination made for or on behalf of any party hereto or the knowledge of any such party’s officers, directors, stockholders, employees or agents. Notwithstanding anything to the contrary herein, (i) if a claim is made before the expiration of the periods of survival set forth above in this Section 13.1, then (notwithstanding the expiration of such time period) the representation or warranty applicable to such claim shall survive until, but only for purposes of, the resolution of such claim, and (ii) Buyer’s right of set off with respect to any breach of a representation, warranty or covenant for which a claim is made prior to the expiration of the applicable period of survival set forth above shall continue as set forth in Section 3.1 (Organization 13.6. All of the representations, warranties and Good Standing); Section 3.2 (Corporate Authority and Enforceability)covenants of Buyer contained in this Agreement, Section 3.3 (Capitalization)or in any certificate or other instrument delivered pursuant to this Agreement, Section 3.12 (Brokers and Finder), Section 4.1 (Organization and Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes) and Section 4.14 (Brokers and Finders) shall survive the Closing Time Date and continue in full force and effect until 5:00 p.m., Pacific Time, on the expiration of date one (1) year after the period ending for the applicable statute of limitations. Notwithstanding the foregoing, if written notice of any matter setting forth in reasonable detail a claim for a breach of any representation or warranty is given to Vampt in writing pursuant to this Agreement prior to the end of the applicable survival period, any such representation or warranty that would otherwise terminate shall be deemed to survive solely with respect to such matter until such matter is resolvedClosing Date.