Common use of Survival of Representations, Warranties, Covenants and Obligations Clause in Contracts

Survival of Representations, Warranties, Covenants and Obligations. (a) Notwithstanding anything to the contrary contained in this Agreement, the representations and warranties of Seller set forth in this Agreement and Seller’s liability under any provision of this Agreement or any other agreement executed in connection with this Agreement, including all Closing Documents, will survive the Closing only for the Survival Period, subject only to such longer periods of time, if any, provided in Section 10.4 or for so long as Purchaser provides written notice to Seller of any claim prior to the expiration of the Survival Period and any claim for which notice was timely delivered is filed in any court prior to the expiration of the Survival Period and remains pending. Notwithstanding the immediately preceding sentence or any other provision herein to the contrary, if Seller obtains an estoppel certificate meeting the requirements of Section 7.2(a) hereof from a tenant before or after Closing, then all representations and warranties made by Seller that are covered in such estoppel certificate shall be null and void, and Purchaser shall accept such estoppel certificate in its place. Purchaser will not have any right to bring any action against Seller as a result of (i) any untruth, inaccuracy or breach of such representations and warranties under this Agreement or any Closing Documents, or (ii) the failure of Seller to perform its obligations under this Agreement or any Closing Documents, unless and until the aggregate amount of all liability and losses arising out of all such untruths, inaccuracies, breaches and failures exceeds the Liability Floor; provided, however, that, if Purchaser’s damages exceed the Liability Floor, the liability of Seller shall include all damages up to and including such amount (i.e. Purchaser shall be permitted to make claims beginning with “dollar one”). In addition, in no event will Seller’s liability for all such untruths, inaccuracies, breaches and/or failures under Section 8.1, any other provision of this Agreement or any Closing Documents exceed the Liability Cap; provided, however, the Liability Cap shall not apply to (i) Seller’s liability for attorneys’ fees and costs in connection with such untruths, inaccuracies, breaches and/or failures, (ii) Seller’s obligations under Section 10.4, and/or (iii) Seller’s obligations under Section 11.1 and none of the foregoing shall be included under the Liability Cap. (b) Seller shall have no liability with respect to any of Seller’s representations, warranties, covenants and obligations herein if, prior to the Closing, Purchaser has actual knowledge of any breach of a representation, warranty, covenant or obligation of Seller, or Purchaser obtains actual knowledge (from whatever source, including any tenant estoppel certificates, as a result of Purchaser’s due diligence tests, investigations and inspections, or written disclosure by Seller or Seller’s agents and employees) that directly contradicts any of Seller’s representations, warranties, covenants or obligations herein, and Purchaser nevertheless consummates the transaction contemplated by this Agreement and Purchaser has the right not to proceed with the Closing as a result thereof. Purchaser shall be deemed to have knowledge of the contents of all documents (i) delivered or made available to Purchaser and/or Purchaser’s Licensee Parties, (ii) contained in or referred to in any tenant estoppel certificate, and (iii) referenced in the PTR or any update thereto. (c) The Closing Surviving Obligations will survive Closing for the period established by the applicable statute of limitations unless a specified period is otherwise provided in this Agreement. All other representations, warranties, covenants, obligations and agreements made or undertaken by Seller under this Agreement, unless otherwise specifically provided herein, will not survive the Closing Date but will be merged into the Closing Documents. The Termination Surviving Obligations shall survive termination of this Agreement for the period established by the applicable statute of limitations unless a specified period is otherwise provided in this Agreement. The limitations on Seller’s liability contained in this Article XVI are in addition to, and not a limitation of, any limitation on liability provided elsewhere in this Agreement or by law.

Survival of Representations, Warranties, Covenants and Obligations. (a) Notwithstanding anything The representations and warranties given or made by any Party or in any certificate or other writing furnished in connection with this Agreement shall survive the Closing for a period of one year after the Closing Date and shall thereafter terminate and be of no further force or effect, except that (i) all representations and warranties relating to Taxes shall survive the Closing for six months after the expiry of the applicable statutory limitation periods including any extensions or waivers thereof, (ii) all representations and warranties with respect to environmental matters shall survive the Closing for a period of three years after the Closing Date, and (iii) any representation and warranty based on title to the contrary contained Purchased Shares, the shares of BPI, BPII, HWI or BECII or the interests of BPI and BPII in this AgreementBPLP or interests of HWI and BECII in HWLP, any claim relating to the representation and warranty in Sections 4.7, 4.8(a), 4.18(d) and (e) and 4.30 or based on fraud or intentional misrepresentation, may be brought at any time; and (iv) any representation and warranty as to which a claim (including a contingent claim) shall have been asserted during the survival period shall continue in effect with respect to such claim until such claim shall have been finally resolved or settled. Subject to Section 9.1(e)(iv), each party shall be entitled to rely upon the representations and warranties of Seller the other parties set forth in this Agreement and Seller’s liability under any provision of this Agreement or any other agreement executed in connection with this Agreement, including all Closing Documents, will survive the Closing only for the Survival Period, subject only to such longer periods of time, if any, provided in Section 10.4 notwithstanding any investigation or for so long as Purchaser provides written notice to Seller of any claim prior to the expiration of the Survival Period and any claim for which notice was timely delivered is filed in any court prior to the expiration of the Survival Period and remains pending. Notwithstanding the immediately preceding sentence or any other provision herein to the contrary, if Seller obtains an estoppel certificate meeting the requirements of Section 7.2(a) hereof from a tenant audit conducted before or after the Closing Date or the decision of any party to complete the Closing; provided that, then all representations to the extent any adjustment to the Purchase Price in respect of a breach of representation and warranties warranty is made by Seller that are covered in pursuant hereto, such estoppel certificate adjustment shall be null and voiddeemed to have conclusively settled any action, and Purchaser shall accept such estoppel certificate cause of action, suit, proceeding, claim, damages or other Indemnifiable Loss in its place. Purchaser will not have any right to bring any action against Seller as a result of (i) any untruth, inaccuracy or breach respect of such representations and warranties under this Agreement or any Closing Documents, or (ii) the failure of Seller to perform its obligations under this Agreement or any Closing Documents, unless and until the aggregate amount of all liability and losses arising out of all such untruths, inaccuracies, breaches and failures exceeds the Liability Floor; provided, however, that, if Purchaser’s damages exceed the Liability Floor, the liability of Seller shall include all damages up to and including such amount (i.e. Purchaser shall be permitted to make claims beginning with “dollar one”). In addition, in no event will Seller’s liability for all such untruths, inaccuracies, breaches and/or failures under Section 8.1, any other provision of this Agreement or any Closing Documents exceed the Liability Cap; provided, however, the Liability Cap shall not apply to (i) Seller’s liability for attorneys’ fees and costs in connection with such untruths, inaccuracies, breaches and/or failures, (ii) Seller’s obligations under Section 10.4, and/or (iii) Seller’s obligations under Section 11.1 and none of the foregoing shall be included under the Liability Capbreach. (b) Seller shall have no liability with respect to any of Seller’s representations, warranties, The covenants and obligations herein ifof BE, prior to XXXXX, the Investors and AcquisitionCo set forth in this Agreement, including the indemnification obligations of the Parties under Article 9 and, for greater certainty, Sections 11.5 and 11.6 shall survive the Closing indefinitely, unless such covenants and obligations by their terms expire on or before the Closing, Purchaser has actual knowledge of any breach of a representation, warranty, covenant or obligation of Seller, or Purchaser obtains actual knowledge (from whatever source, including any tenant estoppel certificates, as a result of Purchaser’s due diligence tests, investigations and inspections, or written disclosure by Seller or Seller’s agents and employees) that directly contradicts any of Seller’s representations, warranties, covenants or obligations herein, and Purchaser nevertheless consummates the transaction contemplated by this Agreement and Purchaser has the right not to proceed with the Closing as a result thereof. Purchaser each Party shall be deemed entitled to have knowledge of the contents of all documents full performance thereof by the other Parties without limitation as to time or amount (i) delivered or made available to Purchaser and/or Purchaser’s Licensee Parties, (ii) contained except as otherwise specifically set forth in or referred to in any tenant estoppel certificate, and (iii) referenced in the PTR or any update theretothis Agreement). (c) The Closing Surviving Obligations will Subject to Sections 11.6(a) and (b), all of the provisions upon which a claim is made under this Agreement shall survive Closing for the period established by the applicable statute until such claim has been disposed of limitations unless a specified period is otherwise provided in accordance with this Agreement. All other representations, warranties, covenants, obligations and agreements made or undertaken by Seller under this Agreement, unless otherwise specifically provided herein, will not survive the Closing Date but will be merged into the Closing Documents. The Termination Surviving Obligations shall survive termination of this Agreement for the period established by the applicable statute of limitations unless a specified period is otherwise provided in this Agreement. The limitations on Seller’s liability contained in this Article XVI are in addition to, and not a limitation of, any limitation on liability provided elsewhere in this Agreement or by law.

Survival of Representations, Warranties, Covenants and Obligations. (a) Notwithstanding anything any right of Unity Wireless and NewCo to fully investigate the contrary contained in this Agreementaffairs of Celerica and notwithstanding any knowledge of facts determined or determinable by Unity Wireless and NewCo pursuant to such investigation or right of investigation, Unity Wireless and NewCo has the right to rely fully upon the representations and warranties of Seller set forth Celerica contained in this Agreement and Seller’s liability under any provision of this Agreement or any other agreement executed in connection with this Agreement, including all Closing Documents, will survive the Closing only for the Survival Period, subject only to such longer periods of time, if any, provided in Section 10.4 or for so long as Purchaser provides written notice to Seller of any claim prior to the expiration of the Survival Period and any claim for which notice was timely delivered is filed in any court prior to the expiration of the Survival Period and remains pending. Notwithstanding the immediately preceding sentence or any other provision herein to the contrary, if Seller obtains an estoppel certificate meeting the requirements of Section 7.2(a) hereof from a tenant before or after Closing, then all representations and warranties made by Seller that are covered in such estoppel certificate shall be null and void, and Purchaser shall accept such estoppel certificate in its place. Purchaser will not have any right to bring any action against Seller as a result of (i) any untruth, inaccuracy or breach of such representations and warranties under this Agreement or any Closing Documents, or (ii) the failure of Seller to perform its obligations under this Agreement or any Closing Documents, unless and until the aggregate amount of all liability and losses arising out of all such untruths, inaccuracies, breaches and failures exceeds the Liability Floor; provided, however, that, if Purchaser’s damages exceed the Liability Floor, the liability of Seller shall include all damages up to and including such amount (i.e. Purchaser shall be permitted to make claims beginning with “dollar one”). In addition, in no event will Seller’s liability for all such untruths, inaccuracies, breaches and/or failures under Section 8.1, any other provision of this Agreement or any Closing Documents exceed the Liability Cap; provided, however, the Liability Cap shall not apply to (i) Seller’s liability for attorneys’ fees and costs in connection with such untruths, inaccuracies, breaches and/or failures, (ii) Seller’s obligations under Section 10.4, and/or (iii) Seller’s obligations under Section 11.1 and none of the foregoing shall be included under the Liability Cap. (b) Seller shall have no liability with respect Notwithstanding any right of Celerica to fully investigate the affairs of Unity Wireless and NewCo and notwithstanding any knowledge of Seller’s facts determined or determinable by Celerica pursuant to such investigation or right of investigation, Celerica has the right to rely fully upon the representations and warranties of Unity Wireless and NewCo contained in this Agreement. (c) The representations, warranties, covenants and obligations herein ifof each party shall survive the execution and delivery of this Agreement and the Closing hereunder and shall thereafter continue in full force for 12 full calendar months after the Closing Date. If any claim for indemnification hereunder that has been previously asserted by a party to this Agreement in accordance with Section ‎12 is still pending at the expiration of the applicable survival period, such claim shall continue to be subject to the indemnification provisions of this Agreement until resolved. (d) The indemnification provision set forth in Section 12 above is the sole remedy of either party for any breaches by the other party of representations and warranties or non-fulfillment of any covenant contained herein, for any and all loss, liability or damage suffered or incurred by such party by reason of or in connection with any claim for finder's fee or brokerage or other commission arising by reason of any services alleged to have been rendered to or at the instance of the other party with respect to this Agreement or any of the transactions contemplated hereby, and for any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expenses, including, without limitation, reasonable legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing the indemnification pursuant to Section 12 above. (e) Whether or not the Merger is consummated, except as otherwise specifically provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expense. Notwithstanding the foregoing, in the event of a breach by a party prior to the Closing, Purchaser has actual knowledge the maximum liability of any Unity and NewCo, on the one hand, and of Celerica, on the other hand, for such a breach of a representation, warranty, covenant or obligation this Agreement prior to the Closing shall in no event exceed $125,000 (the "Break Up Fee"). Each of Seller, or Purchaser obtains actual knowledge (from whatever source, including any tenant estoppel certificates, as a result the parties acknowledges that the agreements contained in this Section 13(e) are an integral part of Purchaser’s due diligence tests, investigations and inspections, or written disclosure by Seller or Seller’s agents and employees) that directly contradicts any of Seller’s representations, warranties, covenants or obligations herein, and Purchaser nevertheless consummates the transaction transactions contemplated by this Agreement Agreement, that the amount of, and Purchaser has the right not to proceed with the Closing as a result thereof. Purchaser shall be deemed to have knowledge basis for payment of the contents of Breakup Fee are reasonable and appropriate in all documents (i) delivered or made available to Purchaser and/or Purchaser’s Licensee Parties, (ii) contained in or referred to in any tenant estoppel certificaterespects, and (iii) referenced in that none of the PTR or any update theretoparties would enter into this Agreement without obtaining this agreement from the other parties. (cf) The Closing Surviving Obligations Celerica will survive Closing for at the period established by request of Unity Wireless and/or NewCo, after the applicable statute Closing, reasonably cooperate with them in the filing of limitations unless a specified period is otherwise provided in this Agreement. All other representationstax returns, warranties, covenants, obligations and agreements made or undertaken by Seller under this Agreement, unless otherwise specifically provided herein, will not survive the Closing Date but will be merged into the Closing Documents. The Termination Surviving Obligations shall survive termination defense of this Agreement for the period established by the applicable statute of limitations unless a specified period is otherwise provided in this Agreement. The limitations on Seller’s liability contained in this Article XVI are in addition totax audits, and not a limitation of, the prosecution and settlement of any limitation on liability provided elsewhere in this Agreement tax litigation or by lawother tax proceedings.

Survival of Representations, Warranties, Covenants and Obligations. (a) Notwithstanding anything any right of Unity Wireless to fully investigate the contrary contained in this Agreementaffairs of Celletra and notwithstanding any knowledge of facts determined or determinable by Unity Wireless pursuant to such investigation or right of investigation, Unity Wireless has the right to rely fully upon the representations and warranties of Seller set forth Celletra contained in this Agreement and Seller’s liability under any provision of this Agreement or any other agreement executed in connection with this Agreement, including all Closing Documents, will survive the Closing only for the Survival Period, subject only to such longer periods of time, if any, provided in Section 10.4 or for so long as Purchaser provides written notice to Seller of any claim prior to the expiration of the Survival Period and any claim for which notice was timely delivered is filed in any court prior to the expiration of the Survival Period and remains pending. Notwithstanding the immediately preceding sentence or any other provision herein to the contrary, if Seller obtains an estoppel certificate meeting the requirements of Section 7.2(a) hereof from a tenant before or after Closing, then all representations and warranties made by Seller that are covered in such estoppel certificate shall be null and void, and Purchaser shall accept such estoppel certificate in its place. Purchaser will not have any right to bring any action against Seller as a result of (i) any untruth, inaccuracy or breach of such representations and warranties under this Agreement or any Closing Documents, or (ii) the failure of Seller to perform its obligations under this Agreement or any Closing Documents, unless and until the aggregate amount of all liability and losses arising out of all such untruths, inaccuracies, breaches and failures exceeds the Liability Floor; provided, however, that, if Purchaser’s damages exceed the Liability Floor, the liability of Seller shall include all damages up to and including such amount (i.e. Purchaser shall be permitted to make claims beginning with “dollar one”). In addition, in no event will Seller’s liability for all such untruths, inaccuracies, breaches and/or failures under Section 8.1, any other provision of this Agreement or any Closing Documents exceed the Liability Cap; provided, however, the Liability Cap shall not apply to (i) Seller’s liability for attorneys’ fees and costs in connection with such untruths, inaccuracies, breaches and/or failures, (ii) Seller’s obligations under Section 10.4, and/or (iii) Seller’s obligations under Section 11.1 and none of the foregoing shall be included under the Liability Cap. (b) Seller shall Notwithstanding any right of Celletra and the Sellers to fully investigate the affairs of Unity Wireless and notwithstanding any knowledge of facts determined or determinable by Celletra and/or the Sellers pursuant to such investigation or right of investigation, Celletra and the Sellers have no liability with respect the right to any rely fully upon the representations and warranties of Seller’s Unity Wireless contained in this Agreement. (c) The representations, warranties, covenants and obligations herein ifof each party shall survive the execution and delivery of this Agreement and the Closing hereunder and shall thereafter continue in full force for 12 full calendar months after the Closing Date. If any claim for indemnification hereunder that has been previously asserted by a party to this Agreement in accordance with Section 13 is still pending at the expiration of the applicable survival period, such claim shall continue to be subject to the indemnification provisions of this Agreement until resolved. (d) The indemnification provision set forth in Section 13 above is the sole remedy of either party for any breaches by the other party of representations and warranties or non-fulfillment of any covenant contained herein, for any and all loss, liability or damage suffered or incurred by such party by reason of or in connection with any claim for finder's fee or brokerage or other commission arising by reason of any services alleged to have been rendered to or at the instance of the other party with respect to this Agreement or any of the transactions contemplated hereby, and for any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expenses, including, without limitation, reasonable legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing the indemnification pursuant to Section 13 above. (e) Whether or not the Transaction is consummated, except as otherwise specifically provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expense. Notwithstanding the foregoing, in the event of a breach by a party prior to the Closing, Purchaser has actual knowledge the maximum liability of any Unity, on the one hand, and of Celletra and the Sellers, together, on the other hand, for such a breach of a representation, warranty, covenant or obligation of Seller, or Purchaser obtains actual knowledge (from whatever source, including any tenant estoppel certificates, as a result of Purchaser’s due diligence tests, investigations and inspections, or written disclosure by Seller or Seller’s agents and employees) that directly contradicts any of Seller’s representations, warranties, covenants or obligations herein, and Purchaser nevertheless consummates the transaction contemplated by this Agreement and Purchaser has the right not prior to proceed with the Closing as a result thereof. Purchaser shall be deemed to have knowledge of in no event exceed $250,000 (two hundred fifty thousand U.S. Dollars) (the contents of all documents (i) delivered or made available to Purchaser and/or Purchaser’s Licensee Parties, (ii) contained in or referred to in any tenant estoppel certificate, and (iii) referenced in the PTR or any update thereto"Break Up Fee"). (cf) The Closing Surviving Obligations Sellers will survive Closing for at the period established by request of Unity Wireless, after the applicable statute Closing, reasonably cooperate with Unity in the filing of limitations unless a specified period is otherwise provided in this Agreement. All other representationstax returns, warranties, covenants, obligations and agreements made or undertaken by Seller under this Agreement, unless otherwise specifically provided herein, will not survive the Closing Date but will be merged into the Closing Documents. The Termination Surviving Obligations shall survive termination defense of this Agreement for the period established by the applicable statute of limitations unless a specified period is otherwise provided in this Agreement. The limitations on Seller’s liability contained in this Article XVI are in addition totax audits, and not a limitation of, the prosecution and settlement of any limitation on liability provided elsewhere in this Agreement tax litigation or by lawother tax proceedings.