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. All representations and warranties contained in this Agreement or in any certificate delivered by a party pursuant to this Agreement shall survive the Closing and shall terminate on, and no claim or action with respect thereto may be brought after, the date that is sixteen months (16) after the Closing Date (such 16-month period, the “General Survival Period”); provided, however, that (a) the representations and warranties contained in Section 3.13 (Tax Matters) shall survive until and shall terminate on, and no claim or action with respect thereto may be brought after, the twentieth (20th) day after the expiration of the applicable statute of limitations and (ii) the representations and warranties contained in Sections 3.1 (Organization and Good Standing), 3.2 (Authority and Enforceability), 3.4 (Capitalization) and 3.5 (Subsidiaries) shall survive the Closing indefinitely. The representations and warranties contained in Sections 3.1 (Organization and Good Standing), 3.2 (Authority and Enforceability), 3.4 (Capitalization), 3.5 (Subsidiaries) and 3.13 (Tax Matters) are collectively referred to as the “Fundamental Representations.” Except as otherwise expressly provided herein, claims relating to any and all covenants and agreements of the parties contained in this Agreement to be performed by the parties at or prior to the Closing Date shall survive the Closing and shall terminate on, and no claim or action with respect thereto may be brought after, the date that is sixteen (16) months after the Closing Date. All other covenants and agreements of the parties contained in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the Merger indefinitely. The termination of the foregoing survival periods shall not affect the rights of any indemnified Person in respect of any claim for indemnifiable Damages made by such indemnified Person in a writing received by another party prior to the expiration of such survival periods, in which case the indemnification obligations set for the in this Article X shall continue with respect to such claim until such claim has been finally resolved. The right to indemnification for payment of Damages for any matter set forth in any of Sections 10.2(a)(ii) through and including 10.2(a)(xi) shall not be affected or in any way compromised by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) by Buyer or any of Buyer’s Representatives at any time, whether before or after the execution and delivery of this Agreement or the Closing Date. The waiver of any condition set forth in Article VII that is based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, shall not affect the right to indemnification, payment of Damages, 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 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 obtainedobligations.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. The All ------------------------------------------------------------ representations, warranties, covenants and obligations in this Agreement, the schedules and the certificates delivered pursuant to this Agreement will survive the Closing; provided that (i) the representations and warranties set forth in -------- Article III (other than those representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.8, 3.15, 4.1, 4.2 and 4.3) or in any certificate, instrument or other document delivered hereunder shall terminate twelve months after the Closing Date, (ii) the covenants and agreements of the Company, Parent and MergerCo set forth in this Agreement or in any Ancillary Agreement (other thanthan those set forth in this Article VIII and in Articles IX, with respect to Parent X and MergerCo, the Non-Surviving Representations and WarrantiesXI) shall survive the Closing (a) for a period of five years terminate twelve months 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 (biii) 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 periodrepresentations and warranties set forth in Sections 3.1, as applicable3.2, a “Survival Period”) 3.3, 3.8, 3.15, 4.1, 4.2 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) 4.3 shall survive indefinitely. No claims for indemnification may be made by any Indemnified Person under Section 7.1 or Section 7.2 after until the end expiration 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, statute of limitations with respect only to such claim, continue in force and effect beyond the end of the Survival Period pending resolution of such claimthereto. 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 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 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 Closing Date, with respect to the accuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant or obligation. 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 warranties, covenants and obligations. In the event that any matter which constitutes a breach of when such investigation was conducted a representation or such knowledge was obtainedwarranty of this Agreement also constitutes a matter which is a Retained Liability, the limitations on survival contained in this Section 8.1 shall not be deemed to be a restriction on CompuCom's ability to make a claim under this Article VIII for any Retained Liability.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. The All representations, warranties, covenants, and obligations except those relating to Taxes in this Agreement, the Disclosure Letter, the supplements to the Disclosure Letter, the certificate delivered pursuant to Section 2.4(a)(v), and any other certificate or document delivered pursuant to this Agreement will survive the Closing for a period of two (2) years from the Closing Date; those relating to Taxes will survive the Closing for a period of three (3) years. If Notice of any claim to a right of indemnification relating to the breach of such representations, warranties, covenants and agreements obligations, is not sent to the Sellers within the prescribed two (2) year period (three (3) years if a Tax claim is involved), the right of the Company, Parent and MergerCo in this Agreement or in Purchaser to bring suit to recover damages for 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 shall be lost. Notwithstanding the immediately preceding sentence, if the Purchaser's claim to a right of indemnification relates to a claim or demand made by any Indemnified Person under Section 7.1 a third-party, or Section 7.2 of which the Purchaser becomes aware, within the last ten (10) days of the prescribed two (2) year period (three (3) years if a Tax claim is involved), then the Purchaser shall have ten (10) days from its receipt of notice of such claim or demand or from the time it became aware of such claim or demand to send a Notice to the Sellers of the Purchaser's claim to a right of indemnification relating to the third-party's claim or demand, even if such ten (10) day period expires after the end close of the applicable Survival Periodprescribed two (2) year period (three (3) years if a Tax claim is involved). In no event may the Notice to the Sellers be sent by the Purchaser more than ten (10) days after the expiration of the prescribed two (2) year period (three (3) years if a Tax claim is involved). If the Purchaser fails so to notify the Sellers within the said ten (10) days as to such claim or demand, provided, however, that a claim then the right of the Purchaser to bring suit to recover damages for any such claims 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 claimshall be lost. The Non-Surviving Representations and Warranties shall not survive beyond the Effective Time. The representations and warranties right to indemnification, payment of any partyDamages or other remedy based on such representations, warranties, covenants, and the right to indemnification for the breach of any such representations and warranties, shall obligations will not be affected by any investigation conducted with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation provided, however, that such indemnification, payment of Damages or other remedy shall not be applicable as to any Breach by the Sellers of which Purchaser has actual knowledge obtained prior to Closing and so fails to inform the Sellers prior to Closing. 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 remedy based on such representations, warranties, covenants, and obligations. Any Notice by the Purchaser to the Sellers of any other partyclaim to a right of indemnification relating to the breach of any representations, regardless warranties, covenants and obligations under this Agreement must describe the claim with reasonable specificity and clarity. If any such Notice is deemed by the Sellers not to be reasonably specific and clear, then Sellers shall so notify the Purchaser within ten (10) days of when the Sellers' receipt of such investigation was conducted Notice, and shall identify to the Purchaser the additional information which the Sellers believe to be necessary to respond to the claim. The Purchaser shall respond to the Sellers' request for additional information within ten (10) days. Any failure by the Purchaser so to notify the Sellers with reasonable specificity and clarity or such knowledge was obtainedto respond to the Sellers' request for additional information which the Sellers deem to be specific and clear shall not relieve the Sellers of any liability under this Agreement nor constitute a waiver by the Purchaser of any of its rights under this Agreement, except as specifically provided to the contrary in Section 10.5 below, except in no event may the Purchaser bring an action against the Sellers for indemnification if the Purchaser has failed to notify the Sellers of a claim or demand for indemnification within the prescribed two (2) year period (plus ten (10) days) (three (3) years (plus ten (10) days)) if a Tax claim is involved) specified hereinbefore in this Section 10.1.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. (a) The representations, warranties, warranties and covenants and agreements of the Parties shall survive the Closing until the first anniversary of the Closing Date, except for (i) the Company's representations and warranties set forth in SECTIONS 3.1(a), Parent (c) and MergerCo (d) (Organization and Good Standing), 3.2(b) (Authority; No Conflict; No Consent), 3.3 (Capitalization), and the Sellers' representations and warranties set forth in this Agreement or SECTIONS 4.1 (Organization and Good Standing), 4.2(b) and (c) (Authority; No Conflict; No Consent), and 4.3 (Title to Interests), which shall survive indefinitely, (ii) the Parent's, Buyer Parent's and the Buyer's representations and warranties set forth in any Ancillary Agreement SECTIONS 5.1 (other thanOrganization and Good Standing) and 5.2(b) and (c) (Authority; No Conflict; No Consent), with respect to Parent which shall survive indefinitely, (iii) the Company's representations and MergerCo, the Non-Surviving Representations and Warrantieswarranties set forth in SECTION 3.27 (Environmental Matters) shall survive the Closing (a) for a period until the fifth anniversary 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 Date, and (biv) for a period of two years after the Company's representations and warranties set forth in SECTIONS 3.21 (Labour Matters), 3.22 (Taxes), 3.23 (Employee Benefits), Kitchener's representations and warranties in Sections 4.5, 4.6, 4.7 and the mutual tax covenants contained in SECTION 7, which representations, warranties and covenants shall survive the Closing Date with respect to indemnification claims under Section 7.1 from until the Escrow Shares expiration of the applicable statute of limitations (either such period, as applicable, a “the "Survival Period”) and "). Nothing contained in the foregoing sentence 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 prevent recovery under Section 7.1 or Section 7.2 this SECTION 11 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 expiration of the Survival Period pending resolution so long as the party making a claim or seeking recovery complies with the provisions of such claimclause (x) and (y) of the following sentence. The Non-Surviving Representations and Warranties No Party shall not survive beyond have any claim or right of recovery for any breach of a representation, warranty, covenant or agreement unless (x) written notice is given in good faith by that Party to the Effective Time. The representations and warranties other Party of any partythe representation, warranty, covenant or agreement pursuant to which the claim is made or right of recovery is sought setting forth in reasonable detail the basis for the purported breach of the representation, warranty, covenant or agreement, the amount or nature of the claim being made, if then ascertainable, and the right general basis therefor and (y) such notice is given prior to indemnification for the breach expiration 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 obtainedthe Survival Period.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. The Subject to the limitations described herein, all representations, warranties, covenants, and obligations in this Agreement, the certificates delivered pursuant to Section 2.4(a) and (b), and any other certificate or document delivered pursuant to this Agreement will survive the Closing as follows: (i) all representations, warranties, covenants and agreements obligations, other than any representation or warranty contained in Section 3.9, 3.13 or any claim based upon an intentional fraudulent misrepresentation, shall survive the Closing until May 31, 1998, and shall thereupon expire together with any right to indemnification (except to the extent a written notice asserting a claim for breach of any such representation or warranty shall have been given prior to such date to the Companyparty which made such representation and warranty), Parent (ii) all representations or warranties contained in Section 3.13 shall survive the Closing until three (3) years from the Closing Date and MergerCo shall thereupon expire together with any right to indemnification (except to the extent a written notice asserting a claim for breach of any such representation or warranty shall have been given prior to such date to the party which made such representation and warranty), (iii) all claims based upon an intentional fraudulent misrepresentations shall survive the Closing until four (4) years from the Closing Date and shall thereupon expire together with any right to indemnification (except to the extent a written notice asserting a claim for breach of any such representation shall have been given prior to such date to the party which made such representation), and (iv) all representations or warranties contained in this Agreement Section 3.9 shall survive the Closing indefinitely. The right to indemnification, payment of Damages or in other remedy based on such representations, warranties, covenants, and obligations shall not be precluded by any Ancillary Agreement (other thanknowledge actually acquired by Buyer before the Closing Date, with respect to Parent and MergerCothe accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver in writing of any condition based on the Non-Surviving Representations and Warranties) accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, 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 preclude any right to receive indemnification, payment of Tax benefits described in Section 7.5(c) Damages, 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 Periodother remedy based on such representations, providedwarranties, 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 partycovenants, 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 obtainedobligations.

SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. (a) The representations, warranties, warranties and 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) parties shall survive the Closing until the twelfth (a12th) for a period month anniversary of five years after the Closing Date with respect Date, except for (i) the Company's representations and warranties set forth in Sections 3.1 (Organization and Good Standing), 3.2 (Authority; No Conflict; No Consent), 3.3 (Capitalization; Title to Interests), 3.6 (Title to Properties; Encumbrances), 3.16 (Finders; Brokers), the Sellers' representations and warranties set forth in Sections 4.1 (Organization and Good Standing), 4.2 (Authority; No Conflict; No Consent), 4.3 (Title to Interests), and the Buyer's representations and warranties set forth in Sections 5.1 (Organization and Good Standing), and 5.2 (Authority; No Conflict; No Consent), which shall survive indefinitely, and (ii) the Company's representations and warranties set forth in Sections 3.19 (Labor Matters), 3.20 (Taxes), 3.21 (Employee Benefits; ERISA), and 3.22 (Environmental Matters), the mutual tax covenants contained in Section 7, and the covenant relating to historical indemnification claims against SpinCo under contained in Section 7.1 or indemnification claims against Parent under Section 7.2 12, which representations, warranties and (b) for a period of two years after covenants shall survive the Closing Date with respect to indemnification claims under Section 7.1 from until the Escrow Shares expiration of the applicable statute of limitations (either such period, as applicable, a “the "Survival Period”) and "). Nothing contained in the foregoing sentence shall thereafter terminate and be of no further force or effect; provided, however, that the right to receive payment of Tax benefits described in prevent recovery under this 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 11 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 expiration of the Survival Period pending resolution so long as the party making a claim or seeking recovery complies with the provisions of such claimclause (x) and (y) of the following sentence. The Non-Surviving Representations and Warranties No Party shall not survive beyond have any claim or right of recovery for any breach of a representation, warranty, covenant or agreement unless (x) written notice is given in good faith by that Party to the Effective Time. The representations and warranties other Party of any partythe representation, warranty, covenant or agreement pursuant to which the claim is made or right of recovery is sought setting forth in reasonable detail the basis for the purported breach of the representation, warranty, covenant or agreement, the amount or nature of the claim being made, if then ascertainable, and the right general basis therefor and (y) such notice is given prior to indemnification for the breach expiration 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 obtainedthe Survival Period.