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

Survival of Representations and Warranties and Covenants. The representations and warranties set forth in Sections 3.1, 3.2, 3.15(a) and 3.18 (the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive the Closing for three (3) years from the Closing Date and then expire. All representations and warranties in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect in accordance with their terms. If an Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or warranty or covenant or agreement, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Party.

Survival of Representations and Warranties and Covenants. The All representations and warranties set forth made by Target herein, or in Sections 3.1any certificate, 3.2schedule or exhibit delivered pursuant hereto, 3.15(ashall survive the execution and delivery of this Agreement and the Closing and shall survive until the Escrow Termination Date; provided, however, that any claims for indemnification involving (i) fraud or intentional misrepresentation or (ii) any breach of any of the representations and 3.18 warranties contained in Section 3.2 (Authority), 3.5 (Capital Structure), and 3.22 (Taxes) (collectively, the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive (A) until the Closing for three expiration of the statute of limitations applicable to such claims (3and thereafter until resolved if a claim in respect thereof has been made prior to such date) years from with respect to such matters, or (B) indefinitely if no statute of limitations apply. There shall be no termination of any representation or warranty as to which a claim has been asserted by Acquiror prior to the Closing Date and then expire. All representations and warranties in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Datetermination of such survival period. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations are to be performed prior to or at the Closing shall survive until the Closing for eighteen (18) months from Escrow Termination Date, provided that the Closing Date and then expire. All covenants and agreements set forth herein in Section 6.10 shall survive until satisfied; all covenants and agreements which by their terms contemplate actions or impose obligations are to be performed following the Closing shall survive the Closing and remain until satisfied or as otherwise specified in full force and effect in accordance with their terms. If an Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or warranty or covenant or agreement, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim Other than with respect to which an Expected Claim Notice has been given those claims that survive indefinitely pursuant to this Section 9.2(b), the Acquiror Indemnified Persons may not assert a claim unless it is definitively withdrawn asserted on or resolved in favor before the last day of the Indemnified Party, applicable foregoing survival period. The parties acknowledge that the Indemnified Party shall promptly so notify time periods set forth in this Article 9 and elsewhere in this Agreement for the Indemnifying Partyassertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Article 9 and elsewhere in the Agreement may be shorter than otherwise provided by law.

Survival of Representations and Warranties and Covenants. The If the Merger is consummated, the representations and warranties set forth in Sections 3.1, 3.2, 3.15(a) and 3.18 (of the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive the Closing for three (3) years from the Closing Date and then expire. All representations and warranties Company contained in this Agreement other than or in the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing Company Officer’s Certificate shall survive the Closing and remain in full force and effect for a period of fifteen (15) months after the Closing Date and then shall terminate (the “General Escrow Release Date”); provided that the representations and warranties contained in accordance with their termsSections 2.1, 2.2, 2.3(a) through (c), 2.3(g), 2.4(a), 2.15 and 2.18 (the “Specified Representations”) shall survive the Closing and remain in full force and effect indefinitely or until the latest date permitted by law; provided further that the representations and warranties contained in Section 2.14 shall survive the Closing and remain in full force and effect until the fifth anniversary of the Closing Date but, for further clarity, shall not be considered Specified Representations. If an Indemnified Party delivers to an Indemnifying PartyThe covenants of the parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (including the covenants set forth in Article IV and Article V) shall survive the Closing indefinitely or for the shorter period explicitly specified therein, before except that for such covenants and agreements that survive for such shorter period, breaches thereof and claims relating thereto shall survive until the expiration of a representation or warranty or the applicable statute of limitations period. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement, either a Claim Notice based upon a breach agreement and any claim in respect of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant which indemnity may be sought under this Agreement shall survive untilthe time at which it would otherwise terminate pursuant to the preceding sentences, but only for purposes of, the resolution if notice of the matter covered in reasonable detail by inaccuracy or breach thereof or claim giving rise to such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has right of indemnity shall have been given is definitively withdrawn or resolved in favor of by any Indemnified Person to the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partyparty against whom such indemnity may be sought prior to such time.

Survival of Representations and Warranties and Covenants. The If the Merger is consummated, the representations and warranties set forth in Sections 3.1, 3.2, 3.15(a) and 3.18 (of the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive the Closing for three (3) years from the Closing Date and then expire. All representations and warranties Company contained in this Agreement Agreement, the Company Disclosure Schedule (including any exhibit or schedule to the Company Disclosure Schedule), and the other than certificates contemplated hereby (and the Seller Fundamental Representations and Buyer Fundamental Representations shall survive indemnification obligations of the Closing for eighteen (18Company relating thereto) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect in accordance with their terms. If an Indemnified Party delivers effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to an Indemnifying Partythis Agreement, before until 11:59 p.m. Pacific Time on the day after the date that is 18 months following the Closing Date, provided, that the foregoing shall not apply to Fundamental Representations (each of which shall terminate upon the expiration of a representation or warranty or covenant or agreement, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant statute of limitations) and provided, further, that the foregoing shall not apply to Fraud Claims (which shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by such noticeindefinitely). If the Proceeding or written claim with respect to which an Expected Claim Notice has been given Merger is definitively withdrawn or resolved consummated, the representations and warranties of Acquiror contained in favor this Agreement and the other certificates contemplated hereby shall terminate at the Closing. If the Merger is consummated, all covenants of the Indemnified Partyparties shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article VIII in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). It is the express intent of the parties that, if an applicable survival period as contemplated by this Section 9.1 is shorter than the statute of limitations that would otherwise have been applicable, then, by contract, the Indemnified Party applicable statute of limitations shall promptly so notify be reduced to the Indemnifying Partyshortened survival period contemplated hereby. The parties further acknowledge that the time periods set forth in this Section 9.1 are the result of arms’-length negotiation and that they intend for the time periods to be enforced as agreed by the parties.

Survival of Representations and Warranties and Covenants. The representations and warranties contained in Sections 5 and 6 and in the certificates delivered pursuant to Sections 9.3.2 and 9.4.2, and the covenants contained herein to be fully performed or complied with at or prior to the Share Purchase Closing Date or Merger Closing Date, as applicable, shall survive the Share Purchase Closing or Merger Closing, as applicable, and shall remain in full force and effect until the later of (x) March 15, 2007, and (y) the date that is one year and 45 days after the Share Purchase Closing Date or the Merger Closing Date, as applicable; provided that: (a) the representations and warranties set forth in Sections 3.15.1, 3.25.3, 3.15(a) and 3.18 (the “Seller Fundamental Representations”) and Sections 4.15.4, 4.2 and 4.6 (the “Buyer Fundamental Representations”) 5.5, 5.10, 5.14 shall survive until sixty (60) days after the Closing for three expiration of the applicable statute of limitations and (3b) years from the Closing Date and then expire. All representations and warranties set forth in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations Section 5.17 shall survive for a period of five years after the Share Purchase Closing Date with respect to the Foreign Subsidiaries and seven years after the Merger Closing Date with respect to the Company and Remaining Subsidiaries. No claim for eighteen (18) months from indemnification under this Section 11 may be asserted with respect to such representations, warranties or covenants after the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations date indicated in the preceding sentence unless, prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect in accordance with their terms. If an Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or warranty or covenant or agreement, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant shall survive until, but only for purposes ofdate, the resolution of the matter covered party seeking indemnification shall have suffered actual Damages and shall have notified in reasonable detail by such notice. If the Proceeding or written party from whom indemnification is sought of a claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partyfor indemnity hereunder.

Survival of Representations and Warranties and Covenants. The (i) All of the representations and warranties set forth of the Sellers and the Buyer contained in Sections 3.1§3 and §4 above (other than those contained in §§3(e), 3.23(p), 3.15(a) and 3.18 (the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”3(u)) shall survive the Closing for three (3) years from the Closing Date hereunder and then expire. All representations and warranties in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain continue in full force and effect for a period of two (2) years thereafter (the “General Survival Period”) and (ii) the representations and warranties of the Sellers contained in accordance §§3(e), 3(p), and 3(u) above, shall survive the Closing hereunder and continue in full force in effect until the expiration of the applicable statute of limitations (the “Special Survival Period”) and no Person may seek indemnification under this §8 with their terms. If an Indemnified Party delivers respect to an Indemnifying Party, before expiration a breach of a representation or warranty after the expiration of the General Survival Period or covenant or agreementSpecial Survival Period, either as applicable. In the event that an Indemnified Party provides written notice in accordance with §9(g) hereof to the Indemnifying Party with respect to a Claim Notice based upon a breach specific claim within the applicable survival period, and such claim has not been finally resolved before the expiration of such representation or warrantythe applicable survival period, or an Expected Claim Notice based upon a breach of such any representation or warranty that is the basis for such claim (or, in the case of a class action or covenanta series of related claims arising out of substantially the same facts and circumstances as such claim, then all such related claims) shall continue to survive and shall remain a basis for indemnity only as to such specific claim (or, in the applicable representation case of a class action or warranty a series of related claims arising out of substantially the same facts and circumstances as such claim, all such related claims) until such claim is finally resolved. The Parties’ respective covenants and agreements to be performed at or covenant after the Closing Date contained in this Agreement shall survive untilindefinitely unless otherwise set forth herein; provided, but only for purposes ofhowever, that any such survival shall not be deemed, directly or indirectly, to affect the resolution of General Survival Period or the matter covered in reasonable detail by such notice. If Special Survival Period applicable to the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partyrepresentations and warranties.

Survival of Representations and Warranties and Covenants. The If the Merger is consummated, the representations and warranties of the Company contained in this Agreement, shall survive the Closing and remain in full force and effect, until the date that is eighteen (18) months following the Closing Date; provided, however, that the representations and warranties set forth in the (i) Company Fundamental Representations will survive indefinitely and remain in full force and effect without limitation; (ii) Section 2.11 (Taxes), will survive and remain in full force and effect until sixty (60) days after the expiration of the applicable statute of limitations; and (iii) Sections 3.1‎2.7 (Compliance with Applicable Laws; Governmental Permits), 3.2, 3.15(a‎2.8 (Broker-Dealer Compliance Matters) and 3.18 ‎2.10 (Intellectual Property) (the “Seller Fundamental Specified Representations”) ), will survive and Sections 4.1, 4.2 remain in full force and 4.6 (effect until the “Buyer Fundamental Representations”) shall survive the Closing for date that is three (3) years from the Closing Date and then expire. All representations and warranties in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from following the Closing Date. All Notwithstanding anything to the contrary herein, in the event of Fraud in relation to any representation or warranty of the Company contained in this Agreement, such representation or warranty will survive indefinitely and remain in full force and effect without limitation If the Merger is consummated, the representations and warranties of Acquirer, Merger Sub and Merger Sub II contained in this Agreement and the other Transaction Documents shall expire and be of no further force or effect as of the Closing. If the Merger is consummated, all covenants and agreements of the parties set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect in accordance with their terms. If an Indemnified Party delivers Each of the foregoing periods, as applicable, shall be referred to an Indemnifying Partyherein as the “Claims Period”. Notwithstanding anything else to the contrary, before no right to indemnification pursuant to ‎‎‎Article 8 in respect of any claim that is set forth in a Claim Certificate delivered to the Securityholders’ Agent prior to the expiration of a representation or warranty or covenant or agreement, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant shall survive untilClaims Period, but only for purposes of, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn facts and circumstances existing on or resolved in favor prior to such date, shall be affected by the expiration of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partysuch Claims Period.

Survival of Representations and Warranties and Covenants. The representations and warranties set forth of the Parties contained in this Agreement shall survive the Closing until the date that is 18 months after the Closing Date, except that (i) the representations and warranties contained in Sections 3.1‎5.1(a), 3.25.2, 3.15(a) 5.3(a), 5.5, and 3.18 5.23 (the “Seller Fundamental Representations”) and (ii) the representations and warranties contained in Sections 4.16.1, 4.2 6.2 and 4.6 6.6 (the “Buyer Purchaser Fundamental Representations”) shall survive until 30 days after the Closing for three (3) years from expiration of the Closing Date applicable statute of limitations and then expire. All the representations and warranties contained in Section 5.9 shall survive until 30 days after the expiration of the statute of limitations applicable to the respective Tax assessment under applicable Law. All of the covenants and agreements contained in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms that contemplate actions (or impose obligations prior inaction) to be taken (or at not taken) after the Closing shall survive the Closing for eighteen (18) months from consummation of the Closing Date transactions contemplated hereby and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain continue in full force and effect after the Closing in accordance with their terms. If an Indemnified Party delivers The covenants and agreements contained in this Agreement that contemplate actions (or inaction) to an Indemnifying Partybe taken (or not taken) prior to the Closing shall not survive the Closing; provided, before however, that the indemnification obligations under Section 9.2(a)(iii) shall survive until the date that is 18 months after the Closing Date. The indemnification obligations under Section 9.2(a)(v), Section 9.2(a)(vi), Section 9.2(a)(vii) and Section 9.3(a)(iii) shall survive until 30 days after the expiration of the statute of limitations applicable to the respective Tax assessment under applicable Law. The indemnification obligations under Section 9.2(a)(iv) shall survive until 30 days after the expiration of the statute of limitations applicable to the underlying claim. The indemnification obligations under Section 9.2(a)(viii) shall survive until (i) if a representation plan of reorganization is confirmed in the Bestwall Case, the effective date of such plan of reorganization, provided that, on such date, an Assumption Order shall have been entered in the Bestwall Bankruptcy Case and shall have become a Final Order, (ii) if the Bestwall Case is dismissed, the date on which the dismissal order is entered, (iii) if the Bestwall Case is converted to a chapter 7 liquidation proceeding, the date on which the trustee in such chapter 7 liquidation proceeding completes the distributions of the property of the estate of Bestwall (each of the dates set forth in clause (i), (ii) or warranty (iii), a “Bankruptcy Conclusion Date”); provided, however, that if the Ground Lease is rejected by the applicable Bankruptcy Conclusion Date, the obligations under Section 9.2(a)(viii) shall survive until the date that is twelve (12) months following such applicable Bankruptcy Conclusion Date. The indemnification obligations under Section 9.3(a)(iv) shall survive until the earlier of the date that any and all obligations of Seller Parent or covenant its Affiliates under (A) the Ground Lease or agreement(B) the guarantee referred to in Schedule 7.21 have terminated. Notwithstanding Section 9.1, either in the event a Claim Notice based upon a breach of such representation for indemnification under Section 9.2(a) or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then Section 9.3(a) shall have been given in accordance with Section 9.4 within the applicable representation or warranty or covenant survival period, the indemnification claim shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by until such notice. If the Proceeding or written time as such claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partyfully and finally resolved.

Survival of Representations and Warranties and Covenants. (a) The representations and warranties set forth contained in Sections 3.1, 3.2, 3.15(a) and 3.18 (the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) this Agreement shall survive the Closing for three (3) years from the Closing Date execution and then expire. All representations and warranties in delivery of this Agreement other than and the Seller Fundamental Representations closing and Buyer Fundamental Representations shall survive the Closing for eighteen consummation of the transactions contemplated hereby (18and any examination or investigation by or on behalf of any party hereto) months from until the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen date that is twenty four (1824) months from the Closing Date and (the “Cut-Off Date”). Notwithstanding the foregoing, (i) any obligation in respect of a claim for indemnity as a result of a breach of any representation or warranty of any party that is asserted in writing with reasonable specificity as to the nature and, if then expire. All covenants and agreements set forth herein which by their terms contemplate actions determinable, amount of the claim prior to the Cut-Off Date, the IP Claim Date or impose obligations following the Closing applicable Statute of Limitations Date, in each case as applicable, shall survive the Closing and remain past such date until finally resolved or settled, (ii) any obligation in full force and effect in accordance with their terms. If an Indemnified Party delivers to an Indemnifying Party, before expiration respect of a claim by a party for indemnity as a result of a breach of a representation or warranty arising or covenant or agreement, either a Claim Notice based upon resulting from a breach of such representation or warranty, or an Expected Section 2.5 (the “IP Claim”) shall survive for a period of 48 months from the Closing Date (the “IP Claim Notice based upon Date”); (iii) any obligation in respect of a claim by a party for indemnity as a result of a breach of such a representation or warranty arising or covenantresulting from a breach of Sections 2.7, then 2.13 or 2.17(c) shall survive until the expiration of the applicable representation or warranty or covenant shall survive until, but only for purposes ofstatute of limitations (collectively, the resolution “Statute of Limitation Claims” and each such date, the applicable “Statute of Limitations Date”); and (iv) any obligation in respect of a claim by a party for indemnity as a result of a breach of Sections 2.15, 2.26, 2.27, or 2.28, a breach of a covenant contained in Article 5, a claim arising or resulting from actual fraud or willful misrepresentation on the part of the matter covered in reasonable detail by such notice. If the Proceeding other party, or written a claim with respect to which an Expected Claim Notice has been given is definitively withdrawn the Excluded Assets or resolved in favor of the Indemnified PartyExcluded Liabilities shall survive indefinitely (collectively, the Indemnified Party shall promptly so notify the Indemnifying Party“Indefinite Claims”).

Survival of Representations and Warranties and Covenants. The representations and warranties set forth in Sections 3.1of Buyer, 3.2, 3.15(a) Seller and 3.18 (the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive the Closing for three (3) years from the Closing Date and then expire. All representations and warranties Company contained in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior any certificate to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing be delivered pursuant to this Agreement shall survive the Closing and remain in full force and effect for a period of fifteen (15) months after the Closing Date and then shall thereafter terminate and be of no further force or effect; provided, that any claim relating to Fundamental Representations (other than representations set forth in accordance with their Section 3.2 (Capitalization) or Section 3.4 (Subsidiaries)) or Indemnified Taxes may be made at any time prior to the expiration of the applicable statute of limitations (including any valid extension of such statute of limitations); provided, further, that the representations set forth in Section 3.2 (Capitalization) and Section 3.4 (Subsidiaries) shall survive indefinitely. All covenants and other agreements of the parties contained in this Agreement shall survive the Closing and shall continue in full force until the time period contemplated by its terms. If an Notwithstanding the foregoing, if, at any time prior to the end of the applicable survival period, any Buyer Indemnified Party Person or Seller Indemnified Person delivers to an Indemnifying PartySeller or Buyer, before expiration as applicable, a Claim Notice as provided in Section 6.4(a) alleging a breach of a representation or any representation, warranty or covenant or agreement, either and asserting a Claim Notice claim for recovery under Section 6.2 based upon a breach of on such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenantbreach, then the applicable representation or representation, warranty or covenant underlying the claim asserted in such Claim Notice shall survive untiluntil such time as such claim is fully and finally resolved. It is the express intent of the parties that if an applicable survival period as contemplated by this Section 6.1 is shorter (or longer) than the statute of limitations that would otherwise apply, but only for purposes ofthen, by contract, the resolution applicable statute of limitations shall be reduced to (or increased to) the matter covered survival period contemplated hereby. The parties further acknowledge and agree that the time periods set forth in reasonable detail this Section 6.1 for the assertion of claims under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed by such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partyparties.

Survival of Representations and Warranties and Covenants. (a) The representations and warranties set forth of Seller contained in Sections 3.1this Agreement or in the certificate delivered pursuant to Section 8.1(d) (the “Seller Representations”) shall survive the Closing and continue in full force and effect until the Survival Date; provided, 3.2however, 3.15(athat (i) the representations and 3.18 warranties made pursuant to Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Purchased Subsidiaries; Capitalization), Section 5.5 (Ownership and Transfer of Purchased Assets), Section 5.19 (Financial Advisors) (collectively, the “Seller Fundamental Representations”) and Sections 4.1the representations and warranties made pursuant to Section 5.9 (Taxes) and Section 5.14 (Employee Benefits Plans) shall in each case survive until sixty (60) days following the expiration of the applicable statutory period of limitation (including all periods of extension, 4.2 whether automatic or permissive), (ii) the representations and 4.6 warranties made pursuant to Section 5.12(c) (the “Buyer Fundamental Representations”Intellectual Property) and Section 5.18 (Environmental Matters) shall survive until the Closing for three third (33rd) years from anniversary of the Closing Date and then expire. All (iii) the representations and warranties in this Agreement made pursuant to Section 5.12 (Intellectual Property) other than the Seller Fundamental Representations and Buyer Fundamental Representations Section 5.12(c) shall survive until the Closing for eighteen second (182nd) months from anniversary of the Closing Date. All covenants and agreements set forth herein which Written notice of a claim for indemnification must be given by their terms contemplate actions or impose obligations prior Purchaser to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect Seller in accordance with their termsthe provisions hereof prior to the expiration of the applicable representations and warranties, in which case such claim shall survive until finally resolved or judicially determined. If an Indemnified Party delivers to an Indemnifying Party, before expiration Any claim for indemnification as a result of a breach of a representation and warranty by Seller for which notice is not delivered to Seller on or warranty or covenant or agreement, either a Claim Notice based upon a breach prior to the expiration of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or and warranty or covenant shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partywill be irrevocably and unconditionally released and waived.

Survival of Representations and Warranties and Covenants. The (a) If the Merger is consummated, the representations and warranties set forth of the Company contained in Sections 3.1, 3.2, 3.15(a) and 3.18 (the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) this Agreement shall survive the Closing and remain in full force and * Confidential treatment requested. effect for three (3) years from a period of [*] after the Closing Date and then expire. All representations and warranties in this Agreement shall terminate other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein Specified Representations, which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect in accordance with their termsuntil ninety (90) days following the expiration of the applicable statute of limitations (such applicable date, the “Survival Date”). If an the Merger is consummated, all covenants of the Parties (including the covenants set forth in Articles IV and V) shall expire and be of no further force or effect as of the close of business on the date that is [*] months after the Closing Date, except to the extent such covenants provide that they are to be performed after the Closing, in which case such covenants shall survive until the date or end of the period specified therein (and, if no date or period is specified therein, then such covenants shall survive indefinitely). Notwithstanding anything to the contrary contained in this Section 8.1, if, at any time prior to the applicable Survival Date, any Indemnified Party Person delivers to an Indemnifying Party, before expiration the Securityholders’ Representative a written notice as provided in Section 8.4(a) alleging a breach or violation of a any such representation or warranty or covenant and asserting a claim for recovery under Section 5.9 or agreement, either a Claim Notice Section 8.2 based upon a on such breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenantviolation, then the applicable representation or warranty or covenant underlying the claim asserted in such notice shall survive untiluntil such time as such claim is fully and finally resolved; provided, but only that the representations and warranties set forth in Section 2.11 hereof shall survive until the Tax Survival Date. Except as otherwise provided in Section 5.9, if the Merger is consummated, this Article VIII is the sole and exclusive remedy to the Parties for purposes ofall claims in any way related to this Agreement and the transactions contemplated hereby other than (a) claims based upon fraud or intentional misrepresentation, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn intentional breach, or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Party(b) claims seeking equitable remedies.

Survival of Representations and Warranties and Covenants. The Parties agree that, regardless of any investigation made at any time by the Parties, the representations and warranties made by Seller and LifeStyle in this Agreement (and any related indemnity obligations) shall survive the Closing and shall terminate, and be of no further force and effect, and no claims with respect thereto may be made by Purchaser, after the date which is the one-year anniversary of the Closing Date; PROVIDED, HOWEVER, that, notwithstanding the foregoing, (i) claims for indemnification relating to Losses (as defined in Section 9.2 below) arising out of any breach of the representations and warranties set forth in Sections 3.1Section 4.12 (Taxes), 3.2Section 4.13 (Employment and Benefits), 3.15(a) and 3.18 Section 4.14 (the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”Environmental) shall survive to the Closing end of the sixtieth day following the expiration of the applicable statute of limitations including any extensions or waivers thereof and (ii) claims for three (3) years from indemnification relating to Losses arising out of any defect in the Closing Date and then expiretitle to any Assets shall survive indefinitely. All representations and warranties in Further, if any claim for indemnification hereunder, which has been previously asserted by either party to this Agreement other than pursuant to a notice of claim in accordance with Section 9.6 below, is still pending at the Seller Fundamental Representations and Buyer Fundamental Representations expiration of the applicable survival period, such claim shall survive continue to be subject to the Closing for eighteen (18) months from indemnification provisions of this Agreement until resolved. For the Closing Date. All avoidance of doubt, all covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing made hereunder shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain until satisfied in full force and effect in accordance with their terms. If an Indemnified Party delivers to an Indemnifying Party, before expiration of unless the Agreement explicitly provides for a representation or warranty or covenant or agreement, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partyspecific termination date.

Survival of Representations and Warranties and Covenants. The representations and warranties of the parties contained herein shall survive for a period commencing on the Closing Date and ending on the date that is 20 months after the Closing Date and shall not survive beyond such period; provided that (i) the representations and warranties set forth in Sections 3.1Section 3.1 (Approval of Agreement and Transactions), 3.2Section3.2 (Seller’s Existence and Good Standing; Authority; Binding Obligations; No Conflicts or Restrictions), 3.15(aSection 3.3 (Ownership of Shares), Section4.1 (Approval of Transaction Documents), Section4.2 (Companies’ Existence and Good Standing; Authority; Binding Obligations; No Conflicts or Restrictions), Section 4.3 (Capital Structure; No Liens), Section4.22 (No Investment Banker’s, Broker’s or Finder’s Fees), Section 5.2 (Buyer’s Existence and Good Standing; Authority; Binding Obligation; No Conflicts or Restrictions), Section5.3 (No Governmental Authority Restrictions) and 3.18 Section5.5 (No Investment Banker’s, Broker’s or Finder’s Fees) shall survive until the “seventh anniversary of the Closing Date, and (ii) the representations and warranties of Seller Fundamental Representations”set forth in Section 4.13 (Taxes), Section 4.18 (Employee Benefits) and Sections 4.1, 4.2 and 4.6 Section 4.23 (the “Buyer Fundamental Representations”Environmental Matters) shall survive the Closing until 90 days after the expiration of the statute of limitations applicable to the statute, regulation or other authority on which the claim for three indemnification under any such representation or warranty is based (3) years from after giving effect to any waiver or extension thereof). Each of the Closing Date covenants and then expire. All representations and warranties agreements contained in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain continue in full force and effect until the earlier of the date on which the applicable covenant or agreement shall have been performed in accordance with their terms. If an Indemnified Party delivers to an Indemnifying Party, before expiration its terms and date that the statute of a representation or warranty or covenant or agreement, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim limitations with respect to any breach of any such covenant or agreement shall have expired. Notwithstanding the foregoing, any obligations under Sections 8.1 and 8.2 shall not terminate with respect to any Losses as to which an Expected Claim Notice has been the Person to be indemnified shall have given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify notice to the Indemnifying PartyParty in accordance with Section 8.3 before the applicable Survival Expiration Date.

Survival of Representations and Warranties and Covenants. The If the Merger is consummated, the representations and warranties set forth in Sections 3.1, 3.2, 3.15(a) and 3.18 (of the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive the Closing for three (3) years from the Closing Date and then expire. All representations and warranties Company contained in this Agreement other than or in the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing Officer’s Certificate shall survive the Closing and remain in full force and effect for a period of fifteen (15) months after the Closing Date and then shall terminate (the “General Escrow Release Date”); provided that the representations and warranties contained in accordance with their termsSections 2.1, 2.2, 2.3(a) through (c), 2.3(g), 2.4(a), 2.15 and 2.18 (the “Specified Representations”) shall survive the Closing and remain in full force and effect indefinitely or until the latest date permitted by law; provided further that the representations and warranties contained in Section 2.14 shall survive the Closing and remain in full force and effect until the fifth anniversary of the Closing Date but, for further clarity, shall not be considered Specified Representations. If an Indemnified Party delivers to an Indemnifying PartyThe covenants of the parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (including the covenants set forth in Article IV and Article V) shall survive the Closing indefinitely or for the shorter period explicitly specified therein, before except that for such covenants and agreements that survive for such shorter period, breaches thereof and claims relating thereto shall survive until the expiration of a representation or warranty or the applicable statute of limitations period. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement, either a Claim Notice based upon a breach agreement and any claim in respect of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenant, then the applicable representation or warranty or covenant which indemnity may be sought under this Agreement shall survive untilthe time at which it would otherwise terminate pursuant to the preceding sentences, but only for purposes of, the resolution if notice of the matter covered in reasonable detail by inaccuracy or breach thereof or claim giving rise to such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has right of indemnity shall have been given is definitively withdrawn or resolved in favor of by any Indemnified Person to the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Partyparty against whom such indemnity may be sought prior to such time.

Survival of Representations and Warranties and Covenants. The (a) If the Merger is consummated, the representations and warranties set forth in Sections 3.1, 3.2, 3.15(a) and 3.18 (of the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive the Closing for three (3) years from the Closing Date and then expire. All representations and warranties Company contained in this Agreement other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect for a period of [*] after the Closing Date and then shall terminate other than the Specified Representations, which shall survive the Closing and remain in accordance with their termsfull force and effect until ninety (90) days following the expiration of the applicable statute of limitations (such applicable date, the “Survival Date”). If an the Merger is consummated, all covenants of the Parties (including the covenants set forth in Articles IV and V) shall expire and be of no further force or effect as of the close of business on the date that is [*] months after the Closing Date, except to the extent such covenants provide that they are to be performed after the Closing, in which case such covenants shall survive until the date or end of the period specified therein (and, if no date or period is [*] Confidential treatment requested. 90 CONFIDENTIAL TREATMENT REQUESTED specified therein, then such covenants shall survive indefinitely). Notwithstanding anything to the contrary contained in this Section 8.1, if, at any time prior to the applicable Survival Date, any Indemnified Party Person delivers to an Indemnifying Party, before expiration the Securityholders’ Representative a written notice as provided in Section 8.4(a) alleging a breach or violation of a any such representation or warranty or covenant and asserting a claim for recovery under Section 5.9 or agreement, either a Claim Notice Section 8.2 based upon a on such breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty or covenantviolation, then the applicable representation or warranty or covenant underlying the claim asserted in such notice shall survive untiluntil such time as such claim is fully and finally resolved; provided, but only that the representations and warranties set forth in Section 2.11 hereof shall survive until the Tax Survival Date. Except as otherwise provided in Section 5.9, if the Merger is consummated, this Article VIII is the sole and exclusive remedy to the Parties for purposes ofall claims in any way related to this Agreement and the transactions contemplated hereby other than (a) claims based upon fraud or intentional misrepresentation, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn intentional breach, or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Party(b) claims seeking equitable remedies.

Survival of Representations and Warranties and Covenants. The (a) If the Merger is consummated, (i) the representations and warranties set forth in Sections 3.1, 3.2, 3.15(a) and 3.18 (of the “Seller Fundamental Representations”) and Sections 4.1, 4.2 and 4.6 (the “Buyer Fundamental Representations”) shall survive the Closing for three (3) years from the Closing Date and then expire. All representations and warranties Company contained in this Agreement and the Officer’s Certificate (other than the Seller Fundamental Representations and Buyer Fundamental Representations shall survive the Closing for eighteen (18Representations) months from the Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to or at the Closing shall survive the Closing for eighteen (18) months from the Closing Date and then expire. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect for a period of twelve (12) months after the Closing Date and then shall terminate; (ii) the representations and warranties of the Company set forth in accordance with their termsSections 2.11 (Title to Property and Assets), 2.16(a) (Employee Benefits Plans) and 2.18 (Broker Fees) shall survive the Closing and remain in full force and effect for a period of twenty-four (24) months after the Closing and then shall terminate; (iii) the representations and warranties of the Company set forth in Sections 2.1 (Organization, Standing and Power), 2.3 (Capital Structure), 2.4(a) (Authority) and 2.15 (Taxes) shall survive the Closing and remain in full force and effect until the expiration of the applicable statute of limitations and then shall terminate; (iv) the covenants and agreements of the Company contained in this Agreement shall survive the Closing and remain in full force and effect until the date that is twelve (12) months after the Closing and then shall terminate, and (v) the right of any Indemnified Person to submit a claim for indemnification under Section 8.2(a)(vii) shall survive until the date that is twelve (12) months after the Closing and then shall terminate. If an Indemnified Party Notwithstanding the foregoing, if at any time prior to the Indemnity Termination Date, Acquiror delivers to an Indemnifying Partythe Securityholders’ Representative (and, before expiration of if the Indemnity Escrow Account is still in effect, the Escrow Agent) a representation or warranty or covenant or agreement, either a Claim Notice based upon written notice as provided in Section 8.4(a) alleging a breach of such representation or any representation, warranty, covenant or an Expected Claim Notice agreement and asserting a claim for recovery under Section 8.2 based upon a breach of on such representation or warranty or covenantbreach, then the applicable representation or warranty or covenant shall survive until, but only for purposes of, the resolution of the matter covered in reasonable detail by such notice. If the Proceeding or written claim solely with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Partysuch claim, the Indemnified Party representation, warranty, agreement or covenant underlying the claim asserted in such notice shall promptly so notify the Indemnifying Partysurvive until such time as such claim is fully and finally resolved.