Common use of Time Limitation Clause in Contracts

Time Limitation. No claim or action shall be brought under this Article IX for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen (18) months following the Closing Date. Regardless of the foregoing, however, or any other provision of this Agreement: (i) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.1, 2.2, 2.3, 2.4 or 2.27 and Seller hereby waives all applicable statutory limitation periods with respect thereto. (ii) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 or 3.6, and Buyer hereby waives all applicable statutory limitation periods with respect thereto. (iii) Any claim or action made pursuant to Section 9.1(a)(y), Section 9.4 or for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.13 or 2.17 may be made at any time prior to thirty (30) days after the expiration of the applicable statute of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b) for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months following the Closing Date. (iv) If any act, omission, disclosure or failure to disclose shall form the basis for a claim for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, the termination of the survival period of one claim shall not affect a party’s right to make a claim based on the inaccuracy in or breach of any representation or warranty still surviving.

Time Limitation. No claim or action shall be brought under this Article IX 9 for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen (18) months following the Closing DateMarch 31, 1999. Regardless of Notwithstanding the foregoing, however, or any other provision provisions of this Agreement: (i) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.1Section 3.1.(f) or Section 3.2, 2.2, 2.3, 2.4 or 2.27 and Seller the Company and the Shareholders hereby waives waive all applicable statutory limitation periods with respect thereto.; (ii) There shall be no time limitation on claims Any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 or 3.6, Section 3.6 may be brought at any time until the underlying tax obligation is barred by the applicable period of limitation under federal and state laws relating thereto without regard to any extensions of any such period of limitation agreed to by Buyer hereby waives all applicable statutory limitation periods with respect thereto.without the prior written consent of Shareholders' Representative; (iii) Any claim made by a party hereunder by filing a suit or action made pursuant in a court of competent jurisdiction or a court reasonably believed to Section 9.1(a)(y), Section 9.4 or be of competent jurisdiction for any inaccuracy in or breach of any a representation or warranty made by Seller in or pursuant to Sections 2.13 or 2.17 may be made at any time prior to thirty (30) days after the expiration termination of the applicable statute of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b) survival period for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not shall be brought after preserved despite the lapse subsequent termination of twenty-four (24) months following the Closing Date.such survival period; (iv) If any act, omission, disclosure or failure to disclose shall form the basis for a claim for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, the termination of the survival period of one claim shall not affect a party’s 's right to make a claim based on the inaccuracy in or breach of any representation or warranty still surviving; and (v) All covenants and agreements in this Agreement relating to periods after the Closing Date shall survive the Closing indefinitely unless sooner terminated in accordance with their terms.

Time Limitation. No claim or action shall be brought under this Article IX 9 for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen (18) months following the Closing Date. Regardless of the foregoing, however, or any other provision of this Agreement: (i) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.1, 2.2, 2.3, 2.4 or 2.27 and Seller hereby waives all applicable statutory limitation periods with respect thereto. (ii) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 or 3.6, and Buyer hereby waives all applicable statutory limitation periods with respect thereto. (iii) Any claim or action made pursuant to Section 9.1(a)(y), Section 9.4 or for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.13 or 2.17 may be made at any time prior to thirty (30) days after the expiration of the applicable statute of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b) for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months following after the Closing Date, subject to the provisions of this Section 9(e)(i). Notwithstanding the foregoing or any other provision of this Agreement: (A) Any claim or action brought for breach of any representation or warranty made in or pursuant to 3(b) (Shareholders), 3(c) (Authority), 3(m)(i) (Title), 3(bb) (No Brokers and Finders), 4(b) (Authority) and 4(e) (No Brokers and Finders) may be made at any time. (ivB) Any claim or action brought for breach of any representation or warranty made in or pursuant to Sections 3(f) (Tax Matters), 3(l)(iii) (Environmental Matters), and 3(r) (Employee Benefit Plans) may be brought at any time until the date that is thirty (30) days after the underlying obligation is barred by the applicable period of limitation under Laws relating thereto (as such period may be extended by waiver). (C) Any claim or action brought for breach of any representation or warranty made in or pursuant to Section 3(a)(v)(A) through Section 3(a)(vi)(C) (Capitalization) or based on fraud or for intentional misrepresentations may be made at any time. (D) Any claim or action made by an Indemnified Party by providing the Indemnifying Party with written notice of an alleged breach of a representation or warranty prior to the expiration of the survival period for such claim or action shall be preserved despite the subsequent expiration of such survival period. (E) If any act, omission, disclosure or failure to disclose shall form the basis for a claim or action for any inaccuracy in or breach of more than one representation or warranty, warranty and such claims have different periods of survival hereunder, then the termination expiration of the survival period of one claim or action shall not affect a partyan Indemnified Party’s right to make a claim or action based on the inaccuracy in or breach of any representation or warranty still surviving.

Time Limitation. No Except as provided below, no claim or action --------------- shall be brought under this Article IX Section 11 for any inaccuracy in or breach of a representation or ---------- warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen five (185) months years following the Closing Date. Regardless of the foregoing, however, or any other provision of this AgreementClosing: (i) There shall be no time limitation on claims or on actions brought for any inaccuracy in or breach of any representation or warranty made by the Seller or the Shareholders in or pursuant to Sections 2.14.1 and 4.2, 2.2, 2.3, 2.4 or 2.27 and the Seller and the -------------------- Shareholders hereby waives waive all applicable statutory limitation periods with respect thereto. (ii) There shall be no time limitation on claims Any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Buyer the Seller or the Shareholders in or pursuant to Sections 3.2 or 3.6, Section 4.5 may be brought at any time until the ----------- underlying tax obligation is barred by the applicable period of limitation under federal and Buyer hereby waives all applicable statutory limitation periods with respect theretostate laws relating thereto (as such period may be extended by waiver). (iii) Any claim or action made pursuant to Section 9.1(a)(y), Section 9.4 or brought for any inaccuracy in or breach of any representation or warranty made by the Seller or the Shareholders in or pursuant to Sections 2.13 or 2.17 Section 4.11 may be made brought at any time prior to thirty (30) days after until the expiration of ------------ underlying claim is barred by the applicable statute period of limitation; provided, however, that with respect to any claim or action made limitation under Section 9.4(b) for any inaccuracy in or breach of any representation or warranty made federal and state laws relating thereto (as such period may be extended by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months following the Closing Datewaiver). (iv) Any claim made by a party hereunder by filing a suit or action in a court of competent jurisdiction or a court reasonably believed to be of competent jurisdiction for breach of a representation or warranty prior to the termination of the survival period for such claim shall be preserved despite the subsequent termination of such survival period. (v) If any act, omission, disclosure or failure to disclose disclosure shall form the basis for a claim for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, the termination of the survival period of one claim shall not affect a party’s 's right to make a claim based on the inaccuracy in or breach of any representation or warranty still surviving.

Time Limitation. No claim or action shall be brought under this Article IX 6 for any inaccuracy in or breach of a representation representation, warranty, or warranty contained in or made pursuant to this Agreement by any Indemnifying Party covenant after the lapse of eighteen two (182) months following years after the Closing Date. Regardless of the foregoing, however, or any other provision of this Agreement: (i) : There shall be no time limitation on claims any claim or actions action brought for any inaccuracy in or (A) breach of any representation or warranty made by Seller in or pursuant to Sections 2.13.2 or 3.12(b), 2.2or (B) breach of any covenant contained in Sections 5.3, 2.35.4 or 5.6, 2.4 or 2.27 and Seller Shareholder hereby waives all applicable statutory limitation periods with respect thereto. (iii) There shall be no time limitation on claims Any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 3.6 or 3.6, and Buyer hereby waives all applicable statutory limitation periods with respect thereto. (iii) Any claim or action made pursuant to Section 9.1(a)(y), Section 9.4 or for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.13 or 2.17 3.17 may be made brought at any time prior to until the date that is thirty (30) calendar days after the expiration of underlying obligation is barred by the applicable statute period of limitation; provided, however, that with respect to any claim or action made limitation under Section 9.4(b) for any inaccuracy in or breach of any representation or warranty made federal and state Laws relating thereto (as such period may be extended by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months following the Closing Datewaiver). (ivii) If any act, omission, disclosure or failure to disclose shall form the basis for a claim or action for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, then the termination of the survival period of one claim or action shall not affect a partyParty’s right to make a claim or action based on the inaccuracy in or breach of any representation or warranty still surviving. (iii) Neither Buyer’s nor Shareholder’s right to indemnification hereunder based on breaches of the other party’s representations, warranties, covenants, and obligations will be adversely affected by any investigation conducted or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing. The waiver of any condition based on the accuracy of any representation and warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification hereunder based on such representations, warranties, covenants, and obligations.

Time Limitation. No claim or action shall be brought under this Article IX 7 for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen (18) 15 months following the Closing DateClosing. Regardless of the foregoing, however, or any other provision of this Agreement: (i) There shall be no time limitation on Special Indemnity Claims (except as set forth below with respect to Regulatory Claims), Litigation Claims, Special Tax Claims or any claims or actions brought for any inaccuracy in or breach of any representation or warranty (A) made by Seller Member in or pursuant to Sections 2.1Section 3.14(c) [“Environmental Matters”], 2.2Section 3.19, 2.3[“Employee Benefit Plans”] or Section 3.28 [“No Brokers or Finders”], 2.4 or 2.27 and Seller Sellers hereby waives waive all applicable statutory limitation periods with respect thereto. thereto that would adversely affect any Buyer Indemnitee’s rights hereunder; (iiB) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 Section 4.1 [“Corporate”], Section 4.2 [“Authorization; Validity”] or 3.6Section 4.3 [“No Brokers or Finders”], and Buyer hereby waives all applicable statutory limitation periods with respect theretothereto that would adversely affect any Seller Indemnitee’s rights hereunder; or (C) made by Parent in or pursuant to Section 5.1 [“Corporate”], Section 5.2 [“Authorization; Validity”], Section 5.3 [“No Brokers or Finders”] or Section 5.5 [“Subject Shares”], and Parent hereby waives all applicable statutory limitation periods with respect thereto that would adversely affect any Seller Indemnitee’s rights hereunder. (iiiii) Any claim or action made pursuant to Section 9.1(a)(y), Section 9.4 or brought for any inaccuracy in or breach of any representation or warranty made by Seller Sellers in or pursuant to Sections 2.13 or 2.17 Section 3.7 (“Tax Matters”) may be made brought at any time until the underlying tax obligation is barred by the applicable period of limitation under federal and state laws relating thereto (as such period may be extended by waiver). (iii) Any Regulatory Claim shall be commenced prior to thirty (30) days after the expiration second anniversary of the applicable statute Closing Date, and any such Regulatory Claim shall be deemed to have been waived if not commenced prior to such second anniversary of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b) for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months following the Closing Date. (iv) Any Claim, including, without limitation, any Regulatory Claim, made by a party hereunder prior to the termination of the survival period for such claim shall be preserved despite the subsequent termination of such survival period. (v) If any act, omission, disclosure or failure to disclose shall form the basis for a claim for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, the termination of the survival period of one claim shall not affect a party’s right to make a claim based on the inaccuracy in or breach of any representation or warranty still surviving.

Time Limitation. No claim or action shall be brought under this Article IX 8 for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen two (182) months years following the Closing Date. Regardless of the foregoing, however, or any other provision of this Agreement: (i) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Seller VENA in or pursuant to Sections 2.13.1 and the first sentence of Section 3.2(b), 2.2Section 3.2(d) and the first sentence of Section 3.12(a), 2.3, 2.4 or 2.27 and Seller Vitro and VENA hereby waives waive all applicable statutory limitation periods with respect thereto. (ii) There shall be no time limitation on claims or actions brought for any inaccuracy in or breach of any representation or warranty made by Buyer OC or OCVF in or pursuant to Sections 3.2 or 3.6, 4.1 and Buyer hereby waives all applicable statutory limitation periods with respect thereto4.2(b). (iii) Any claim or action for breach or violation of the representation or warranty made by VENA in or pursuant to the penultimate sentence of Section 9.1(a)(y), Section 9.4 3.20 may be brought for a period of 10 years following the Closing Date. (iv) Any claim or action for any inaccuracy in or breach of any representation or warranty made by Seller VENA in or pursuant to Sections 2.13 or 2.17 3.11(c) and 3.16 may be made at any time prior to thirty brought for a period of five (305) days after the expiration of the applicable statute of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b) for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months years following the Closing Date. (ivv) Any claim or action for breach of any covenant made pursuant to Section 5.3 may be brought for a period of five (5) years following the Closing Date. (vi) Any claim or action brought for breach of any representation, warranty or covenant made by VENA in or pursuant to Sections 3.5 may be 50 brought at any time until the underlying Tax obligation is barred by the applicable period of limitation under any laws relating thereto (as such period may be extended by waiver). (vii) Any claim made by a party hereunder by a demand for arbitration in accordance with Article 11 hereof for breach of a representation or warranty prior to the termination of the survival period for such claim shall be preserved despite the subsequent termination of such survival period. (viii) If any act, omission, disclosure or failure to disclose shall form the basis for a claim for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, the termination of the survival period of one claim shall not affect a party’s 's right to make a claim based on the inaccuracy in or breach of any representation or warranty still surviving.

Time Limitation. No claim or action shall be brought under this Article IX 12 for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen two (182) months years following the Closing DateClosing. Regardless of the foregoing, however, or any other provision of this Agreement: (i) There shall be no The time limitation on claims or on actions brought for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.1, 2.2, 2.3, 2.4 or 2.27 and Seller hereby waives all Section 5.9(a) shall be the applicable statutory limitation periods period with respect thereto. (ii) There shall be no time limitation on claims Any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 or 3.6, Section 5.3 may be brought at any time until the underlying tax obligation is barred by the applicable period of limitation under federal and Buyer hereby waives all applicable statutory limitation periods with respect theretostate laws relating thereto (as such period may be extended by waiver). (iii) Any claim made by a party hereunder by filing a suit or action made pursuant in a court of competent jurisdiction or a court reasonably believed to Section 9.1(a)(y), Section 9.4 be of competent jurisdiction or by a demand for any inaccuracy arbitration in or accordance with Article 18 hereof for breach of any a representation or warranty made by Seller in or pursuant prior [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. to Sections 2.13 or 2.17 may be made at any time prior to thirty (30) days after the expiration termination of the applicable statute of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b) survival period for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not shall be brought after preserved despite the lapse subsequent termination of twenty-four (24) months following the Closing Datesuch survival period. (iv) If any act, omission, disclosure or failure to disclose disclosure shall form the basis for a claim for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, the termination of the survival period of one claim shall not affect a party’s 's right to make a claim based on the inaccuracy in or breach of any representation or warranty still surviving.

Time Limitation. No The representations and warranties shall survive the Closing for a period lasting until, and no claim or action shall be brought under this Article IX 9 for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen of, twelve (1812) months following after the Closing DateClosing. Regardless of the foregoing, however, or any other provision of this Agreement: (i) There shall be no time limitation on claims any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.13.2(c) and 3.3, 2.2such representations and warranties shall survive the Closing indefinitely, 2.3, 2.4 or 2.27 and Seller hereby waives all applicable statutory limitation periods with respect thereto. (ii) There shall be no time limitation on claims Any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 Section 3.6 may be brought at any time until the date that is thirty (30) calendar days after the underlying obligation is barred by the applicable period of limitation under federal, state or 3.6, any other applicable Laws relating thereto (as such period may be extended by tolling or waiver) and Buyer hereby waives all applicable statutory limitation periods with respect theretosuch representations and warranties shall survive the Closing for a period lasting until such date. (iii) Any The representations and warranties in Section 3.10(c) shall survive the Closing for a period lasting until, and no claim or action made pursuant to Section 9.1(a)(y), Section 9.4 or shall be brought under this Article 9 for any inaccuracy in or breach of any a representation or warranty made by Seller in or pursuant to Sections 2.13 or 2.17 may be made at any time prior to thirty (30) days after the expiration of the applicable statute of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b3.10(c) for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months following of, five years after the Closing DateClosing. (iv) The representations and warranties in Section 3.16 shall survive the Closing for a period lasting until, and no claim or action shall be brought under this Article 9 for breach of a representation or warranty under Section 3.16 after the lapse of, three years after the Closing. (v) Any claim made by a Party hereunder by filing a suit or action in a court of competent jurisdiction or a court reasonably believed to be of competent jurisdiction for breach of a representation or warranty prior to the termination of the survival period for such claim shall be preserved despite the subsequent termination of such survival period. (vi) If any act, omission, disclosure or failure to disclose shall form the basis for a claim or action for any inaccuracy in or breach of more than one representation or warranty, and such claims have different periods of survival hereunder, then the termination of the survival period of one claim or action shall not affect a party’s Party's right to make a claim or action based on the inaccuracy in or breach of any representation or warranty still surviving.

Time Limitation. No claim or action shall be brought under this Article IX 6 for any inaccuracy in or breach of a representation or warranty contained in or made pursuant to this Agreement by any Indemnifying Party after the lapse of eighteen (18) date that is 18 months following after the Closing Date. Regardless of Notwithstanding the foregoing, however, foregoing or any other provision of this Agreement: (i) There shall be no time limitation on claims any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.1Section 3.1, 2.2Section 3.2, 2.3Section 3.3, 2.4 Section 3.13(a) or 2.27 Section 3.25 (collectively, the “Fundamental Representations”), and Shareholders and Seller hereby waives waive all applicable statutory limitation periods with respect thereto. (ii) There shall be no time limitation on claims Any claim or actions action brought for any inaccuracy in or breach of any representation or warranty made by Buyer in or pursuant to Sections 3.2 or 3.6Section 3.6 may be brought at any time until the date that is 30 days after the underlying obligation is barred by the applicable period of limitation under foreign, federal and Buyer hereby waives all applicable statutory limitation periods with respect theretostate Laws relating thereto (as such period may be extended by waiver). (iii) Any claim or action made pursuant to Section 9.1(a)(y), Section 9.4 or brought for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.13 Section 3.11(c) or 2.17 Section 3.17 may be made brought at any time prior to thirty (30) days after until the expiration third anniversary of the applicable statute of limitation; provided, however, that with respect to any claim or action made under Section 9.4(b) for any inaccuracy in or breach of any representation or warranty made by Seller in or pursuant to Sections 2.26(xvi) or (xvii) such claim or action may not be brought after the lapse of twenty-four (24) months following the Closing Date. (iv) Any claim or action made by an Indemnified Party by delivering notice to the Indemnifying Party requesting resolution of a Dispute relating to a breach of a representation or warranty under this Article 6 prior to the expiration of the applicable survival period for such claim or action shall be preserved despite the subsequent expiration of such survival period. (v) If any act, omission, disclosure or failure to disclose shall form the basis for a claim or action for any inaccuracy in or breach of more than one representation or warranty, warranty and such claims have different periods of survival hereunder, then the termination expiration of the survival period of one claim or action shall not affect a partyan Indemnified Party’s right to make a claim or action based on the inaccuracy in or breach of any representation or warranty still surviving.