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

Survival of Representations and Warranties Indemnification. Section 9.01. Survival of Representation and Warranties. The representations and warranties of the parties hereto contained in this Agreement shall survive the Effective Time until the second anniversary of the Closing Date (the “Survival Period”), provided that the representations and warranties in Sections 4.01, 4.02, 4.07, 4.08, 4.18 and 4.21 shall survive indefinitely or until the latest date permitted by law and the representations and warranties contained in Article 8 shall survive in accordance with the terms of Section 8.09. The covenants and agreements of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing Date indefinitely or for the shorter period explicitly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive indefinitely or until the latest date permitted by law. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity is being sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if written notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time, but only to the extent of the indemnity being sought. All of Parent’s and the Merger Subsidiaries’ representations and warranties contained herein or in any instrument delivered pursuant to this Agreement shall terminate at the Effective Time.

Survival of Representations and Warranties Indemnification. Section 9.01. 10.1 Survival of Representation Representations, Warranties and WarrantiesCovenants. The representations and warranties of the parties hereto Sellers, the Acquired Companies, Purchaser and Parent contained in this Agreement or in any certificates delivered pursuant to ARTICLE IX shall survive the Closing until the date that is fifteen (15) months following the Closing Date, except that (a) the representations and warranties set forth in Sections 3.1 (Organization, Standing and Power), 3.2 (Capitalization; Title to Equity Interests), 3.3 (Subsidiaries; Investments), 3.4(a) and 3.4(b) (Authority; Binding Agreement), 3.8 (Tax), 3.15(i)(iv) (Employee Benefit Plans) and 3.22 (Brokers; Fees) (collectively, the “Acquired Company Fundamental Representations”) shall survive the Closing until ninety (90) days following the expiration of the applicable statute of limitations, (b) the representations and warranties set forth in Sections 4.1 (Title to Equity Interests), 4.2(a) and 4.2(b) (Authority; Binding Agreement) and 4.4 (Brokers; Fees) (collectively, the “Seller Fundamental Representations”) shall survive the Closing until ninety (90) days following the expiration of the applicable statute of limitations, (c) the representations and warranties set forth in Sections 5.1 (Organization, Standing and Power), 5.2(a) and 5.2(b) (Authority; Binding Agreement), and 5.4 (Brokers; Fees) (collectively, the “Purchaser Fundamental Representations”) shall survive the Closing until ninety (90) days following the expiration of the applicable statute of limitations and (d) the representations and warranties contained in Section 3.12(d) (Customer Contracts) (the “Special Customer Contracts Representations”) shall survive the Closing until the date that is twenty-seven (27) months following the Closing Date. The covenants contained in this Agreement shall survive the Effective Time Closing and remain in full force and effect until ninety (90) days following the second anniversary expiration of the applicable statute of limitations. No Purchaser Indemnified Party shall make any claim for indemnification under this Article X with respect to any breach of any representation, warranty or covenant at any time after the end of the survival period applicable to such representation, warranty or covenant, and no Purchaser Indemnified Party shall make any claim for indemnification under (i) Section 10.2(e) or Section 10.2(f) at any time after the date that is fifteen (15) months following the Closing Date and (ii) Section 10.2(g) or Article VIII at any time after ninety (90) days following the “Survival Period”)expiration of the applicable statute of limitations. Notwithstanding the foregoing, provided that the representations any claim made under and warranties in Sections 4.01, 4.02, 4.07, 4.08, 4.18 and 4.21 shall survive indefinitely or until the latest date permitted by law and the representations and warranties contained in Article 8 shall survive in accordance with this ARTICLE X prior to the terms of Section 8.09. The covenants and agreements expiration of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith applicable period set forth above shall survive the Closing Date indefinitely until such claim is finally resolved. No knowledge of, or for the shorter period explicitly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive indefinitely investigation by or until the latest date permitted by law. Notwithstanding the preceding sentenceson behalf of, any breach party hereto will constitute a waiver of representationsuch party’s right to enforce any covenant, warranty, covenant representation or agreement in respect of which indemnity is being sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if written notice warranty contained herein against any of the inaccuracy other parties or breach thereof giving rise to such affect the right of indemnity shall have been given a party to the party against whom such indemnity may be sought prior to such time, but only to the extent of the indemnity being sought. All of Parent’s and the Merger Subsidiaries’ representations and warranties contained herein or in any instrument delivered pursuant to this Agreement shall terminate at the Effective Timeindemnification.

Survival of Representations and Warranties Indemnification. Section 9.01. 13.1 Survival of Representation Representations, Warranties, Covenants and WarrantiesAgreements. The representations and warranties of the parties hereto contained in this Agreement shall survive AT&T Parties, the Effective Time until the second anniversary of the Closing Date (the “Survival Period”), provided that the representations and warranties in Sections 4.01, 4.02, 4.07, 4.08, 4.18 and 4.21 shall survive indefinitely or until the latest date permitted by law Comcast Parties and the representations and warranties contained in Article 8 shall survive in accordance with the terms of Section 8.09. The covenants and agreements of the parties hereto contained AOLTW Parties in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall will survive Closing for a period of 12 months after the Closing Date indefinitely or for Closing; provided that notwithstanding the shorter period explicitly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive indefinitely or until the latest date permitted by law. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity is being sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if written notice foregoing (i) none of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time, but only to the extent of the indemnity being sought. All of Parent’s and the Merger Subsidiaries’ representations and warranties contained herein in Section 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.17, 5.18, 5.19, 5.20, 5.21 or 5.22 shall survive Table of Contents the Closing; (ii) all representations and warranties with respect to any Taxes (including the representations and warranties in Sections 3.8 and 5.6) (other than the representations and warranties in Sections 3.8(a), (b), (c), (d), (e), (f) and (g) which will not survive the Closing and other than the representations and warranties contained in Section 5.33 that are not related to Income Taxes which will survive for a period of 12 months after the Closing), Environmental Law or ERISA matters will survive until 60 days after the expiration of the applicable statute of limitations (including any instrument delivered pursuant extensions) for such Taxes, Environmental Law or ERISA matters, respectively; and (iii) the representations and warranties contained in Section 3.7 shall survive in perpetuity. The periods of survival of the representations and warranties prescribed by this Section 13.1 are referred to as the “Survival Period.” Liabilities under representations and warranties contained in this Agreement will expire as of the expiration of the applicable Survival Period; provided, however, that such expiration will not include, extend or apply to any representation or warranty, the breach of which has been asserted in a written notice in accordance with Section 15.1 before such expiration or about which proper notice has been given before such expiration, identifying with specificity any facts or conditions that exist which, with the passage of time or otherwise, could reasonably be expected to result in a breach (and describing such potential breach in reasonable detail). The covenants and agreements in this Agreement will survive the Closing and will continue in full force and effect without limitation. Any representation or warranty which, pursuant hereto, does not survive the Closing shall terminate at be from and after the Effective TimeClosing null and void and of no further force or effect, to the same extent as if never made hereunder. The parties expressly agree that the sole purpose of such representation and warranty ceases upon the Closing.

Survival of Representations and Warranties Indemnification. Section 9.01. 13.1 Survival of Representation Representations, Warranties and WarrantiesCovenants. The representations and warranties All of the parties hereto representations, warranties and covenants of each Asset Seller, the Company, E&EC and the LLC contained herein or in this Agreement any document, certificate or other instrument required to be delivered hereunder shall survive the Effective Time Closing Date and continue in full force and effect until 5:00 p.m., Pacific Time, on the second anniversary of date two (2) years after the Closing Date (the “Survival Period”), Date; provided that the representations and warranties in Sections 4.01, 4.02, 4.07, 4.08, 4.18 and 4.21 5.18(a) through (l) only shall survive indefinitely or until the latest date permitted by law third anniversary of the Closing Date; provided, further, 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 contained in Article 8 Section 5.13 shall survive until the fifth anniversary of the Closing Date; provided, further, that the representations and warranties in accordance with Section 5.23 shall survive until the terms eighth anniversary of the Closing Date. This Section 8.09. The covenants and agreements 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 13.6. All of the representations, warranties and covenants of Buyer contained in this Agreement Agreement, or in any certificate or other writing instrument delivered pursuant hereto or in connection herewith to this Agreement, shall survive the Closing Date indefinitely or for and continue in full force and effect until 5:00 p.m., Pacific Time, on the shorter period explicitly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive indefinitely or until date one (1) year after the latest date permitted by law. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity is being sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if written notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time, but only to the extent of the indemnity being sought. All of Parent’s and the Merger Subsidiaries’ representations and warranties contained herein or in any instrument delivered pursuant to this Agreement shall terminate at the Effective TimeClosing Date.

Survival of Representations and Warranties Indemnification. Section 9.01. 12.1 Survival of Representation Representation, Warranties, Covenants and WarrantiesAgreements. The representations and warranties of the parties hereto Parent contained in this Agreement Agreement, or in any certificate or other instrument delivered pursuant to this Agreement, shall survive the Effective Share Acquisition Closing and will continue (regardless of any investigation made by or on behalf of the parties to this Agreement) until 5:00 p.m. Pacific Time until on the second twelve (12) month anniversary of the Share Acquisition Closing Date (the “Survival Period”), provided that and the representations and warranties of Corning contained in Sections 4.01this Agreement, 4.02or in any certificate or other instrument delivered pursuant to this Agreement, 4.07, 4.08, 4.18 and 4.21 shall survive indefinitely the Asset Purchase Closing and will continue (regardless of any investigation made by or on behalf of the parties to this Agreement) until 5:00 p.m. Pacific Time on the latest date permitted twelve (12) month anniversary of the Asset Purchase Closing, and the representations and warranties of Avanex contained in this Agreement, or in any certificate or other instrument delivered pursuant to this Agreement, shall survive the Share Acquisition Closing or the Asset Purchase Closing, as the case may be, and will continue (regardless of any investigation made by law and or on behalf of the parties to this Agreement) until 5:00 p.m. Pacific Time on the twelve (12) month anniversary of the Share Acquisition Closing or the Asset Purchase Closing, as the case may be; provided, however, that (a) the representations and warranties contained in Article 8 Section 4.9, Section 5.9, and Section 6.8 shall survive in accordance with until the terms close of Section 8.09. The covenants and agreements business on the expiration date of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing Date indefinitely or for the shorter period explicitly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive indefinitely or until the latest date permitted by law. Notwithstanding the preceding sentences, any breach applicable statute of representation, warranty, covenant or agreement in limitations with respect of which indemnity is being sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentencesTax liabilities in question (giving effect to any waiver, if written notice of mitigation, extension, suspension or interruption thereof) and (b) the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time, but only to the extent of the indemnity being sought. All of Parent’s and the Merger Subsidiaries’ representations and warranties contained herein in the first four sentences of Section 4.5, the first three sentences of Section 5.2, Section 5.4, Section 6.2, and the first three sentences of Section 6.4 shall survive until the later of the expiration of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) or the twelve (12) month anniversary of (i) the Share Acquisition Closing, in the case of representations and warranties of Parent, (ii) the Asset Purchase Closing, in the case of representations and warranties of Corning, or (iii) the Share Acquisition Closing or the Asset Purchase Closing, as the case may be, in the case of representations and warranties of Avanex. All covenants and obligations which are to be performed following the Share Acquisition Closing and Asset Purchase Closing shall remain in full force and effect and shall survive until fully performed or waived. No claim for indemnification under this Article XII may be asserted with respect to any instrument delivered representation or warranty after the applicable date set forth above unless, prior to the date such representation or warranty expires, the party seeking indemnification has properly made a claim with respect thereto pursuant to this Agreement shall terminate at the Effective TimeSection 12.3 or 12.6 hereof, as applicable.