Common use of SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE Clause in Contracts

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. The representations, warranties, covenants and agreements of the Company, Parent and MergerCo in this Agreement or in any Ancillary Agreement (other than, with respect to Parent and MergerCo, the Non-Surviving Representations and Warranties) shall survive the Closing (a) for a period of five years after the Closing Date with respect to indemnification claims against SpinCo under Section 7.1 or indemnification claims against Parent under Section 7.2 and (b) for a period of two years after the Closing Date with respect to indemnification claims under Section 7.1 from the Escrow Shares (either such period, as applicable, a “Survival Period”) and shall thereafter terminate and be of no further force or effect; provided, however, that the right to receive payment of Tax benefits described in Section 7.5(c) or 7.6(c) shall survive indefinitely. No claims for indemnification may be made by any Indemnified Person under Section 7.1 or Section 7.2 after the end of the applicable Survival Period, provided, however, that a claim for indemnification under Section 7.1 or Section 7.2 as to which a Claim Notice is delivered in accordance with Section 7.4 during the applicable Survival Period shall, with respect only to such claim, continue in force and effect beyond the end of the Survival Period pending resolution of such claim. The Non-Surviving Representations and Warranties shall not survive beyond the Effective Time. The representations and warranties of any party, and the right to indemnification for the breach of any such representations and warranties, shall not be affected by any investigation conducted or knowledge obtained by any other party, regardless of when such investigation was conducted or such knowledge was obtained.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. The All representations, warranties, covenants covenants, and agreements of the Company, Parent and MergerCo obligations in this Agreement or Agreement, and in any Ancillary Agreements, and all representations and warranties contained in the certificates delivered pursuant to this Agreement (other thanand any Ancillary Agreements, with respect to Parent and MergerCo, the Non-Surviving Representations and Warranties) shall will survive the Closing (a) for a period of five years after the Closing Date with respect to indemnification claims against SpinCo under Section 7.1 or indemnification claims against Parent under Section 7.2 and (b) remain in full force and effect for a period of two (2) years after from the Closing Date with respect to indemnification claims under Section 7.1 from (the Escrow Shares (either such period, as applicable, a “Survival Period”), except as the Survival Period is otherwise defined below: the representations and warranties made pursuant to Section 3.11 (Taxes) and shall thereafter terminate and be of no further force or effect; provided, however, that the right to receive payment of Tax benefits described in Section 7.5(c) or 7.6(c3.13 (Employee Benefits) shall survive indefinitely. No claims for indemnification may be made by any Indemnified Person under Section 7.1 or Section 7.2 after until ninety (90) days following the end expiration of the applicable Survival Period, provided, however, that a claim statute of limitations for indemnification under Section 7.1 or Section 7.2 as to which a Claim Notice is delivered in accordance with Section 7.4 during the applicable Survival Period shall, with respect only to such claim, continue in force and effect beyond the end of the Survival Period pending resolution any breach of such claimrepresentations or warranties; and The parties acknowledge that the time periods set forth in this Article X and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’ length negotiation between the parties and that they intend for the time periods to be enforced as agreed by the parties. The Non-Surviving Representations parties further acknowledge that the time periods set forth in this Article X and Warranties shall not survive beyond elsewhere in the Effective Time. The Agreement may be shorter than otherwise provided by applicable Legal Requirements and that the representations and warranties of any party, and the right to indemnification for the breach of any such representations and warranties, set forth in this Agreement shall not in no event be affected by any investigation conducted investigation, inquiry or knowledge obtained examination made for or on behalf of any party or the acceptance by any party of any certificate hereunder The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other partyremedy based on such representations, regardless of when such investigation was conducted or such knowledge was obtainedwarranties, covenants, and obligations.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. (a) The representations, warranties, covenants representations and agreements of the Company, Parent and MergerCo warranties given or made by any Party in this Agreement Articles 4 or 5 hereof or in any Ancillary Agreement (certificate or other than, with respect to Parent and MergerCo, the Non-Surviving Representations and Warranties) writing furnished in connection herewith shall survive the Closing (a) for a period of five (5) years after the Closing Date with respect to indemnification claims against SpinCo under Section 7.1 or indemnification claims against Parent under Section 7.2 and (b) for a period of two years after the Closing Date with respect to indemnification claims under Section 7.1 from the Escrow Shares (either such period, as applicable, a “Survival Period”) and shall thereafter terminate and be of no further force or effect; provided, however, except that (i) the right to receive payment of Tax benefits described representations and warranties set forth in Section 7.5(c4.12 shall not survive past the Closing Date and shall terminate upon the Closing (ii) all representations and warranties set forth in Section 4.1, Section 4.2, Section 4.3, Section 4.9, Section 4.10, Section 4.11, Section 4.14, Section 5.1, Section 5.2, Section 5.3 or 7.6(c) Section 5.5 shall survive indefinitely. No claims the Closing for indemnification may be made by any Indemnified Person under Section 7.1 or Section 7.2 a period of ten (10) years after the end of the applicable Survival PeriodClosing Date, provided, however, that a claim for indemnification under Section 7.1 and (iii) any representation or Section 7.2 warranty as to which a Claim Notice is delivered in accordance with Section 7.4 third-party claim or a good-faith claim by a Party (including a contingent claim) shall have been asserted during the applicable Survival Period shall, survival period shall continue in effect with respect only to such claim, continue in force claim until such claim shall have been finally resolved or settled. (b) The covenants and effect beyond the end agreements of the Survival Period pending resolution Parties contained in this Agreement, including those set forth in ARTICLE 7 and Section 10.3 shall survive the Closing indefinitely, unless otherwise specified herein. The survival period of the covenant set forth in Section 6.4(k) for purposes of any claim for damages for breach of such claim. The Non-Surviving Representations and Warranties covenant shall not survive beyond be limited as if the Effective Time. breach of the covenant were the breach of the representation or warranty which the Seller's actions have caused to be untrue. (c) The representations and warranties of any partythe Parties set forth herein, subject to the express exceptions thereto, and the right to indemnification for the breach of any such representations and warrantieswarranties of Guarantor set forth in the Guaranty, shall not be affected by any information furnished to, or any investigation or audit conducted before or knowledge obtained after the Effective Date or the Closing Date by, any of the Parties or their respective representatives in connection with the Transactions. Each Party shall be entitled to rely upon the representations and warranties of the other Party set forth herein and, in the case of Purchaser, the representations and warranties of Guarantor set forth in the Guaranty, notwithstanding any investigation or audit conducted before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or obligations in this Agreement or any of the Ancillary Agreements will not be affected by any other partyinvestigation or audit conducted with respect to, regardless or any Knowledge acquired (or capable of when 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 investigation was conducted representation, warranty, covenant, or such knowledge was obtainedobligation.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. All representations, warranties, covenants, and obligations in this Agreement or any other Loan Document will survive until (i) in the case where the Lenders have exercised their conversion rights pursuant to Article 4, the date that is three (3) years after the issuance of the Common Shares pursuant to Article 4, or (ii) otherwise, through the date when the Borrower has fully and indefeasibly repaid to the Lenders the principal amount of the Loans and any interest thereon (such date pursuant to clause (ii) of this Section 10.3, the “Survival Date”); provided, however, that all representations and warranties made as of the date hereof by incorporation into this Agreement by reference pursuant to Section 6.15 of this Agreement that relate to Section 4.17 (Employment Matters) and Section 4.23 (Taxes) of the Securities Purchase Agreement shall survive until the earlier of the date which is (i) 30 days after the expiration of the respective statute of limitations applicable thereto and (ii) the Survival Date; provided, further, that notwithstanding Section 4.1(f), exercise by the Lenders of the conversion rights pursuant to Article 4 shall not be deemed payment in full of the Loan for purpose of this Section 10.3(ii). The right to indemnification, payment of Losses or other remedy based on such representations, warranties, covenants and agreements of the Company, Parent and MergerCo in this Agreement or in any Ancillary Agreement (other than, with respect to Parent and MergerCo, the Non-Surviving Representations and Warranties) shall survive the Closing (a) for a period of five years after the Closing Date with respect to indemnification claims against SpinCo under Section 7.1 or indemnification claims against Parent under Section 7.2 and (b) for a period of two years after the Closing Date with respect to indemnification claims under Section 7.1 from the Escrow Shares (either such period, as applicable, a “Survival Period”) and shall thereafter terminate and be of no further force or effect; provided, however, that the right to receive payment of Tax benefits described in Section 7.5(c) or 7.6(c) shall survive indefinitely. No claims for indemnification may be made by any Indemnified Person under Section 7.1 or Section 7.2 after the end of the applicable Survival Period, provided, however, that a claim for indemnification under Section 7.1 or Section 7.2 as to which a Claim Notice is delivered in accordance with Section 7.4 during the applicable Survival Period shall, with respect only to such claim, continue in force and effect beyond the end of the Survival Period pending resolution of such claim. The Non-Surviving Representations and Warranties shall not survive beyond the Effective Time. The representations and warranties of any party, and the right to indemnification for the breach of any such representations and warranties, shall will not be affected by any investigation conducted with respect to, or any knowledge obtained by acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Effective 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 covenant or obligation, will not affect the right to indemnification, payment of Losses, or other partyremedy based on such representations, regardless of when such investigation was conducted or such knowledge was obtainedwarranties, covenants and agreements.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. The All representations, warranties, covenants covenants, and agreements of the Company, Parent and MergerCo obligations in this Agreement or in any Ancillary Agreement (other than, with respect to Parent and MergerCoAgreement, the Non-Surviving Representations and Warranties) shall Schedules, or any Exhibit hereto will survive the First Installment Closing Date as follows: (a) for a period of five years after the Closing Date with respect to indemnification claims against SpinCo under Section 7.1 or indemnification claims against Parent under Section 7.2 representations and (b) for a period of two years after the Closing Date with respect to indemnification claims under Section 7.1 from the Escrow Shares (either such period, as applicable, a “Survival Period”) and shall thereafter terminate and be of no further force or effect; provided, however, that the right to receive payment of Tax benefits described warranties in Section 7.5(c4.01 (Incorporation, Qualification and Corporate Power), Section 4.02 (Capitalization), Section 4.04 (Authorization of Transaction), clause (I) or 7.6(cof Section 4.05 (Noncontravention), Section 4.25 (Broker’s Fees) (collectively, the “Critical Representations”) shall survive indefinitely. No claims for indemnification may be made by any Indemnified Person under ; (b) the representations and warranties in Section 7.1 or 5.01 (Organization), Section 7.2 after 5.02 (Authorization of Transaction) and Section 5.04 (Financial Capability) shall survive indefinitely; (c) the end representations and warranties in Section 4.08 (Tax Matters) and Section 4.17 (Legal Compliance) shall terminate upon the expiration of the applicable Survival Periodstatutes of limitations in respect of such matters (after giving effect to any extensions or waivers thereof); and (d) all other representations, providedwarranties and covenants in this Agreement and the Schedules and Exhibits attached hereto shall terminate on the Business Day next following the eighteenth month anniversary of the First Installment Closing Date; provided that any representation or warranty in respect of which indemnity may be sought under Section 9.02 below, howeverand the indemnity with respect thereto, that shall survive the time at which it would otherwise terminate pursuant to this Section 9.01 if notice of a claim for indemnity hereunder shall have been given to the party against whom such indemnity may be sought prior to such time. The parties acknowledge that indemnification under Section 7.1 or Section 7.2 as to which a Claim Notice is delivered in accordance with Section 7.4 during the applicable Survival Period shall, hereunder with respect only to such claimthe Breach of any covenant or agreement contained herein, continue including any Breach of any covenant or agreement contained in force and effect beyond the end of the Survival Period pending resolution of such claim. The Non-Surviving Representations and Warranties this Article 9, shall not survive beyond the Effective Timebe subject to any time or other limitations. The representations and warranties of any partySubject to Section 6.01(d)(ii), and the right to indemnification for the breach indemnification, payment of any Damages or other remedy based on such representations and representations, warranties, shall covenants, and obligations will not be affected by any investigation conducted with respect to, or knowledge obtained by any other partyKnowledge acquired (or capable of being acquired) at any time, regardless whether before or after the execution and delivery of when this Agreement or the First Installment Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such investigation was conducted representation, warranty, covenant or such knowledge was obtainedobligation.