Common use of Survival of Provisions Indemnification Clause in Contracts

Survival of Provisions Indemnification. (a) Acceptance by Buyer at Closing of the Assignment and Assumption of Membership Interests shall constitute an acknowledgment by Buyer of full performance by Seller of all of Seller’s obligations under this Agreement, except for the Express Representations and the obligations of Seller that are expressly stated to survive Closing to the extent of the applicable period of such survival. (b) Notwithstanding any provision to the contrary set forth in this Agreement (except as provided in this Section 22(b)), Seller’s Express Representations shall survive Closing under this Agreement for a period of 270 days following the Closing (the “Survival Period”), subject however to the provisions of the remainder of this Section 22; provided that the representations and warranties set forth in Sections 10(a)(i)-(v) (the “Fundamental Representations”) shall survive indefinitely. (c) Following the Closing, subject to the other provisions of this Section 22, Seller shall indemnify and hold Buyer and Buyer Parties harmless from and against any and all actual out of pocket costs, losses, liabilities, fees, expenses, damages, deficiencies, interest and penalties (including, without limitation, reasonable attorneys’ fees and disbursements, but excluding any consequential (including lost profits), punitive, or speculative damages (collectively, “Losses”), incurred by Buyer and any such Buyer Party to the extent resulting from (i) any breach of any of Seller’s Representations hereunder or representations and warranties of Seller under the documents executed and delivered by Seller at Closing (collectively, the “Express Representations”), (ii) any breach of the covenants of Seller contained in this Agreement or in any Closing documents executed and delivered by Seller at Closing solely to the extent such covenant is expressly provided herein to survive the Closing, and any third-party claims made against any Acquired Company to the extent arising or accruing prior to the Closing Date (collectively, the “Seller Indemnified Covenants”), and (iii) any Excluded Parcel and related Excluded Property, and the liabilities related to any Excluded Parcel and related Excluded Property, in each case except for any Loss resulting from the action or inaction of any Buyer Party. (d) Following the Closing, Buyer shall indemnify and hold Seller and Seller Parties harmless from and against any and all actual Losses actually incurred by Seller and any such Seller Party to the extent resulting from (i) any breach of any representations or warranties by Buyer hereunder or in any of the documents executed and delivered by Buyer at Closing, (ii) any breach of any covenant of Buyer contained in this Agreement or in any such Closing document solely to the extent such covenant is expressly provided herein to survive the Closing, and (iii) any third-party claims made against any Acquired Company to the extent arising or accruing from and after the Closing Date.

Survival of Provisions Indemnification. (a) Acceptance by Buyer at Closing of the Assignment and Assumption of Membership Interests Deeds shall constitute an acknowledgment by Buyer of full performance by Seller of all of Seller’s obligations under this Agreement, except for the Express Representations and the obligations of Seller that are expressly stated herein to survive Closing to the extent of the applicable period of such survivalClosing. (b) Notwithstanding any provision to the contrary set forth in this Agreement (except as provided in this Section 22(b)), Seller’s Express Representations shall survive Closing under this Agreement for a period of 270 days six (6) months following the Closing (the “Survival Period”), subject however to the provisions of the remainder of this Section 22; provided that the representations and warranties set forth in Sections 10(a)(i)-(v10(a)(i), 10(a)(ii) and 10(a)(v) (collectively, the “Fundamental Representations”) shall survive indefinitely. (c) Following the Closing, subject to the other provisions of this Section 22, Seller shall indemnify and hold Buyer and Buyer Parties harmless from and against any and all actual out of pocket costs, losses, liabilities, fees, expenses, damages, deficiencies, interest and penalties (including, without limitation, reasonable attorneys’ fees and disbursements, but excluding any consequential (including lost profits), punitive, special or speculative damages (collectively, “Losses”), actually incurred by Buyer and any such Buyer Party to the extent resulting from (i) any breach of any of Seller’s Representations hereunder or representations and warranties of Seller under the documents executed and delivered by Seller at Closing (collectively, the “Express Representations”), (ii) any breach of the covenants of Seller contained in this Agreement or in any Closing documents executed and delivered by Seller at Closing solely to the extent such covenant is expressly provided herein to survive the Closing, and any third-party claims made against any Acquired Company to the extent arising or accruing prior to the Closing Date (collectively, the “Seller Indemnified Covenants”), and (iii) any Excluded Parcel and related Excluded Property, and the liabilities related to any Excluded Parcel and related Excluded Property, in each case except for any Loss resulting from the action or inaction of any Buyer Party. (d) Following the Closing, Buyer shall indemnify and hold Seller and Seller Parties harmless from and against any and all actual Losses actually incurred by Seller and any such Seller Party to the extent resulting from (i) any breach of any representations or warranties by Buyer hereunder or in any of the documents executed and delivered by Buyer at Closing, (ii) any breach of any covenant of Buyer Seller contained in this Agreement or in any such Closing document executed and delivered by Seller at the Closing, in each case solely to the extent such covenant is expressly provided herein to survive the Closing, and (iii) any third-party claims made against any Acquired Company to the extent arising or accruing from and after the Closing DateUnresolved Litigation.

Survival of Provisions Indemnification. (a) Acceptance by Buyer at Closing of the Assignment and Assumption of Membership Interests shall constitute an acknowledgment by Buyer of full performance by Seller of all of Seller’s obligations under this Agreement, except for the Express Representations and the obligations of Seller that are expressly stated to survive Closing to the extent of the applicable period of such survivalClosing. (b) Notwithstanding any provision to the contrary set forth in this Agreement (except as provided in this Section 22(b)), Seller’s Express Representations shall survive Closing under this Agreement for a period of 270 days following the Closing (the “Survival Period”), subject however to the provisions of the remainder of this Section 22; provided that the representations and warranties set forth in Sections 10(a)(i)-(v) (the “Fundamental Representations”) shall survive indefinitely. (c) Following the Closing, subject to the other provisions of this Section 22, Seller shall indemnify and hold Buyer and Buyer Parties harmless from and against any and all actual out of pocket costs, losses, liabilities, fees, expenses, damages, deficiencies, interest and penalties (including, without limitation, reasonable attorneys’ fees and disbursements, but excluding any consequential (including lost profits), punitive, or speculative damages (collectively, “Losses”), actually incurred by Buyer and any such Buyer Party to the extent resulting from (i) any breach of any of Seller’s Representations hereunder or representations and warranties of Seller under the documents executed and delivered by Seller at Closing (collectively, the “Express Representations”), (ii) any breach of the covenants any covenant of Seller contained in this Agreement or in any such Closing documents executed and delivered by Seller at Closing document solely to the extent such covenant is expressly provided herein to survive the Closing, and (iii) any third-party claims made against any Acquired Company to the extent arising out of or accruing relating to facts or circumstances occurring prior to the Closing Date (collectively, the “Seller Indemnified Covenants”)Date, and (iiiiv) any Excluded Parcel and related Excluded PropertyParcel, and the liabilities related to any Excluded Parcel and related Excluded Property, in each case except for any Loss resulting from the action or inaction of any Buyer PartyParcel. (d) Following the Closing, Buyer shall indemnify and hold Seller and Seller Parties harmless from and against any and all actual Losses actually incurred by Seller and any such Seller Party to the extent resulting from (i) any breach of any representations or warranties by Buyer hereunder or in any of the documents executed and delivered by Buyer at Closing, (ii) any breach of any covenant of Buyer contained in this Agreement or in any such Closing document solely to the extent such covenant is expressly provided herein to survive the Closing, and (iii) any third-party claims made against any Acquired Company to the extent arising out of or accruing relating to facts or circumstances occurring from and after the Closing Date. (e) Seller’s liability with respect to any claims made pursuant to Section 22 shall be subject to the following limitations: (i) If Buyer has actual knowledge that any of the Express Representations are breached prior to the Closing Date, Buyer’s sole right and remedy shall be to terminate this Agreement (or, if applicable, to designate the affected Parcel(s) as Excluded Parcel(s)) by giving to Seller written notice of such termination or designation, identifying with reasonable specificity the Express Representation breached and the factual circumstances resulting in such breach. If Buyer has actual knowledge of such breach and fails to give such written termination or designation notice to Seller on or prior to the Closing Date, Buyer shall be deemed to have waived such breach of Express Representation and any right or remedy by reason of such breach to the extent Buyer had actual knowledge of such breach prior to Closing. In addition, if Buyer issues a Continuation Notice during the Inspection Period pursuant to Section 19(e), Buyer shall be deemed to have waived any right or remedy (including, without limitation, any right under this Agreement to terminate this Agreement) by reason of any breach of the Express Representations to the extent Buyer had knowledge of such breach prior to the expiration of the Inspection Period. If Buyer shall notify Seller of any breach of any representation prior to the Closing (other than a breach of representation or warranty deemed waived by Buyer during the Inspection Period pursuant to the immediately preceding sentence) and exercises its right to terminate this Agreement by virtue thereof, Seller shall have the right to extend the Closing to attempt to cure such breach as provided in (and subject to the limitations set forth in) Section 12(d) hereof. In the event of any termination by Buyer pursuant to this Section, then upon the return of the Deposit as provided for in this Agreement, this Agreement shall be and become null and void, neither party shall have any further rights or obligations hereunder (except for the obligations of Buyer and Seller that expressly survive termination as set forth in this Agreement, which shall survive the cancellation of this Agreement) and all executed counterparts of this Agreement shall be returned to Seller (ii) Seller shall have no liability on account of any such breach or default unless Buyer shall have given to Seller written notice (“Warranty Notice”) describing such breach or default with reasonable specificity within the Survival Period, and shall have given to Seller an opportunity to cure any such breach or default within thirty (30) days after Buyer’s Warranty Notice. (iii) No claim shall be actionable or payable unless the valid claims for all such breaches collectively aggregate more than Three Hundred Thousand Dollars ($300,000) (the “Deductible”) in which event the amount of such claims in excess of the Deductible shall be actionable. Save and except attorneys fees, indemnification obligations, and fraud claims, in no event shall the aggregate liability of Seller to Buyer by reason of a breach or default exceed FOUR MILLION FIVE HUNDRED FIFTEEN THOUSAND FIFTEEN THOUSAND DOLLARS ($4,515,015,000) (the “Liability Cap”); provided that the Deductible and Liability Cap shall not apply with respect to a breach or default of a Fundamental Representation. Seller’s liability shall be limited to actual damages to the extent actually caused by Seller’s breach, and in no event shall Seller or any Seller Party be liable for any consequential (including lost profits), punitive, or speculative damages under this Agreement. (iv) Following delivery of a Warranty Notice, the parties shall proceed for a period of thirty (30) days after Seller’s receipt of the Warranty Notice to attempt to resolve and settle Buyer’s claim pursuant to such Warranty Notice, and if the parties are unable to resolve and settle such claim within such thirty (30) day period, then any litigation with respect to any Seller’s Representations must be commenced within thirty (30) days after the date of the Warranty Notice (herein the “Warranty Claim Period”), and if not commenced within the Warranty Claim Period, then Buyer shall be deemed to have waived its claims for such breach or default. Any proceeding or litigation based upon a claim of fraud or similar theory shall be subject to Buyer similarly giving Seller a Warranty Notice as provided above and an action commenced by Buyer within the Warranty Claim Period and, if appropriate proceedings are not commenced within such time period, Buyer shall be deemed to have waived any such claim.

Survival of Provisions Indemnification. (a) Acceptance by Buyer at Closing of the Assignment and Assumption of Membership Interests shall constitute an acknowledgment by Buyer of full performance by Seller Sellers of all of Seller’s Sellers’ obligations under this Agreement, except for the Express Representations and the obligations of Seller Sellers that are expressly stated herein to survive Closing to the extent of the applicable period of such survivalClosing. (b) Notwithstanding any provision to the contrary set forth in this Agreement (except as provided in this Section 22(b)), Seller’s Sellers’ Express Representations shall survive Closing under this Agreement for a period of 270 days six (6) months following the Closing (the “Survival Period”), subject however to the provisions of the remainder of this Section 22; provided that the representations and warranties set forth in Sections 10(a)(i)-(v10(a)(i), 10(a)(ii), 10(a)(iii), 10(a)(iv) and 10(a)(v)(a) (collectively, the “Fundamental Representations”) shall survive indefinitely. (c) Following the Closing, subject to the other provisions of this Section 22, Seller Sellers shall indemnify and hold Buyer and Buyer Parties harmless from and against any and all actual out of pocket costs, losses, liabilities, fees, expenses, damages, deficiencies, interest and penalties (including, without limitation, reasonable attorneys’ fees and disbursements, but excluding any consequential (including lost profits), punitive, special or speculative damages (collectively, “Losses”), actually incurred by Buyer and any such Buyer Party to the extent resulting from (i) any breach of any of Seller’s Representations hereunder or representations and warranties of Seller under the documents executed and delivered by Seller at Closing (collectively, the “Express Representations”), (ii) any breach of the covenants any covenant of Seller Sellers contained in this Agreement or in any Closing documents document executed and delivered by Seller Sellers at Closing the Closing, in each case solely to the extent such covenant is expressly provided herein to survive the Closing, and any third-party claims made against any Acquired Company to the extent arising or accruing prior to the Closing Date (collectively, the “Seller Indemnified Covenants”), and (iii) any Unresolved Litigation, and (iv) any Excluded Parcel and related Excluded PropertyParcel, and the liabilities related to any Excluded Parcel and related Excluded Property, in each case except for any Loss resulting from the action or inaction of any Buyer PartyParcel. (d) Following the Closing, Buyer shall indemnify and hold Seller Sellers and Seller Parties harmless from and against any and all actual Losses actually incurred by Seller Sellers and any such Seller Party to the extent resulting from (i) any breach of any representations or warranties by Buyer hereunder or in any of the documents executed and delivered by Buyer at Closing, Closing and (ii) any breach of any covenant of Buyer contained in this Agreement or in any such document delivered by Buyer at Closing document solely to the extent such covenant is expressly provided herein to survive the Closing. (e) Sellers’ liability under this Agreement or any of the documents executed and delivered by Sellers at the Closing pursuant hereto shall be subject to the following limitations: (i) If Buyer has actual knowledge that any of the Express Representations are breached prior to the Closing Date and proceeds to close hereunder, Buyer shall be deemed to have waived such breach of Express Representation and any right or remedy by reason of such breach to the extent Buyer had actual knowledge of such breach prior to Closing. In addition, if Buyer issues a Continuation Notice during the Inspection Period pursuant to Section 19(e), Buyer shall be deemed to have waived any right or remedy (including, without limitation, any right under this Agreement to terminate this Agreement) by reason of any breach of the Express Representations to the extent Buyer had knowledge of such breach prior to the expiration of the Inspection Period. If Buyer shall notify Sellers of any breach of any representation prior to the Closing (other than a breach of representation or warranty deemed waived by Buyer during the Inspection Period pursuant to the immediately preceding sentence) and, subject to the terms and conditions set forth in this Agreement, exercises its right to terminate this Agreement by virtue thereof, Sellers shall have the right to extend the Closing to attempt to cure such breach as provided in (and subject to the limitations set forth in) Section 12(d) hereof. In the event of any termination by Buyer pursuant to this Section, then upon the return of the Deposit (including the Non-Refundable Deposit to the extent refundable hereunder) as provided for in this Agreement, this Agreement shall be and become null and void, neither party shall have any further rights or obligations hereunder (except for the obligations of Buyer and Sellers that expressly survive termination as set forth in this Agreement, which shall survive the cancellation of this Agreement) and all executed counterparts of this Agreement shall be returned to Sellers. “Buyer has actual knowledge” (or words of similar import), as used in this Agreement, shall mean that, as of Closing, Buyer is deemed to know all items and matters disclosed, on or before a date which is at least seven (7) days prior to the Closing Date or a later date to the extent set forth in or attached to a Representation Notice, in (a) the rent rolls and delinquency reports provided or made available to Buyer, (b) the surveys, the Existing Title Policies, the Title Commitments and exhibits thereto (or any subsequent update of such items received by Buyer prior to Closing), (c) the Reports and any third party reports procured by or at the direction of Buyer (including any Phase I environmental report and any property condition report), (d) this Agreement and all schedules and exhibits attached to this Agreement and any updates thereto delivered to Buyer, and (iiie) all Diligence Materials and any third-party claims made against and all other agreements, documents, instruments, analyses, correspondence, reports, and exhibits and schedules thereto delivered or provided to Buyer or any Acquired Company Buyer Parties by Sellers, any Seller Parties or Sellers’ counsel by email or posted to the Diligence Room, in each case, at least seven (7) days prior to the Closing Date or a later date to the extent arising set forth in or accruing from and after the Closing Dateattached to a Representation Notice.