Common use of Survival of Representations Indemnification Clause in Contracts

Survival of Representations Indemnification. (a) The representations and warranties of the parties hereto contained in this Agreement or in any certificate, instrument, or document delivered pursuant hereto shall survive the Closing for a period of one year after the Closing Date and shall thereafter terminate and be of no further force or effect, except that (i) the representations and warranties of Sellers and the Company relating to taxes and tax returns in Section 4(d) and environmental liabilities in Section 4(f) shall survive the Closing for the period of the applicable statutes of limitation plus any extensions or waivers thereof, and (ii) any representation or warranty as to which a claim (including without limitation a contingent claim) shall have been asserted during the survival period shall continue in effect with respect to such claim until such claim shall have been finally resolved or settled. Notwithstanding any investigation or audit conducted before or after the Closing Date or the decision of any party to complete the Closing, each party shall be entitled to rely upon the representations and warranties of the other party or parties set forth herein. (b) Subject to the limitations set forth below, Sellers jointly and severally agree to indemnify, defend and hold harmless Buyer and the heirs, legal representatives, successors and assigns of Buyer (collectively, the “Buyer Indemnified Parties” and individually, a “Buyer Indemnified Party”), from and against, and to reimburse the Buyer Indemnified Parties with respect to, any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) asserted against or incurred by any Buyer Indemnified Party by reason of or arising out of, or resulting from any breach by Sellers of any of the representations, warranties, covenants or agreements contained in Section 4 of this Agreement. Each of the Sellers’ liability under this Section 12(b) shall be limited to the Restricted Share Price of the Restricted Shares received by such Seller hereunder. In order to satisfy any liability under this Section 12(b), each Seller has the option to deliver Restricted Shares (having a deemed value equal to the Restricted Share Price), the Company Notes or cash or any combination thereof to the Buyer in satisfaction of such Seller’s obligations under Section 12(b) or (c), and upon any such cash payment, Buyer will release such Restricted Shares which have been pledged to it. The total amount paid by a Seller under this Section 12(b) when combined with amounts paid under Section 12(c) shall not exceed such Seller’s Pro Rata Share (as defined below). The Company Notes shall be deemed to have their face value plus accrued interest for purposes of satisfying any indemnity obligations of Sellers under Section 12(b) or (c) and each Seller shall have the option of cancelling all or any portion of such Company Notes to satisfy all or any portion of its indemnification obligations under Section 12(b) or (c). In order to secure Sellers’ obligations under this Section 12(b), Sellers shall pledge their respective Restricted Shares to the Company for one year pursuant to a Pledge Agreement substantially in the form attached hereto as Exhibit C. (c) Sellers severally (but only in proportion to their respective Pro Rata Share) and not jointly agree to indemnify, defend and hold harmless the Buyer Indemnified Parties from and against, and to reimburse the Buyer Indemnified Parties with respect to, any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) asserted against or incurred by any Buyer Indemnified Party by reason of or arising out of, or resulting from any breach by such Seller of any of the covenants or agreements of such Seller contained in this Agreement or any representations or warranties of such Seller contained in Section 5(a), (b) and (c) of this Agreement. “Pro Rata Share” means with respect to any Seller a fraction, set forth as a percentage, the numerator of which is the total consideration received by a Seller pursuant to this Agreement for all of such Seller’s Shares as set forth on Annex I, and the denominator of which is the total consideration received by all Sellers pursuant to this Agreement as set forth on Annex I. Each of the Sellers’ liability under this Section 12(c) shall be limited to its respective portion of the Purchase Price received by such Seller and any amounts paid under Section 12(b) shall reduce the Pro Rata Share available for recovery from such Seller under this Section 12(c).

Survival of Representations Indemnification. (a) The representations Seller hereby agrees to indemnify and warranties hold harmless the Buyer from and against any and all damages, claims, losses, or expenses (including reasonable attorneys' fees and expenses) (“Damages”) actually suffered or paid by Buyer as a result of the parties hereto contained in this Agreement or in breach of any certificate, instrument, or document delivered pursuant hereto shall survive the Closing for a period of one year after the Closing Date and shall thereafter terminate and be of no further force or effect, except that (i) the representations and warranties of Sellers and the Company relating to taxes and tax returns in Section 4(d) and environmental liabilities in Section 4(f) shall survive the Closing for the period of the applicable statutes of limitation plus any extensions or waivers thereof, and (ii) any material representation or warranty as made by such Seller in this Agreement, though in no event in an amount exceeding the Purchase Price. To the extent that Seller's undertakings set forth in this Section 4(a) may be unenforceable, Seller shall contribute the maximum amount that they are permitted to which a claim (including without limitation a contingent claim) shall have been asserted during contribute under applicable law to the survival period shall continue in effect with respect to such claim until such claim shall have been finally resolved or settled. Notwithstanding any investigation or audit conducted before or after payment and satisfaction of all Damages incurred by the Closing Date or the decision of any party to complete the Closing, each party shall be parties entitled to rely upon the representations and warranties of the other party or parties set forth hereinindemnification hereunder. (b) Subject Buyer hereby agrees to the limitations set forth below, Sellers jointly and severally agree to indemnify, defend indemnify and hold harmless Buyer and Seller against Damages actually suffered or paid by Seller as a result of the heirs, legal representatives, successors and assigns breach of Buyer (collectively, the “Buyer Indemnified Parties” and individually, a “Buyer Indemnified Party”), from and against, and to reimburse any representation or warranty made by the Buyer Indemnified Parties with respect to, any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) asserted against or incurred by any Buyer Indemnified Party by reason of or arising out of, or resulting from any breach by Sellers of any of the representations, warranties, covenants or agreements contained in Section 4 of this Agreement. Each of To the Sellers’ liability under extent that the Buyer's undertakings set forth in this Section 12(b4 (b) may be unenforceable, the Buyer shall be limited contribute the maximum amount that he is permitted to contribute under applicable law to the Restricted Share Price of the Restricted Shares received by such Seller hereunder. In order to satisfy any liability under this Section 12(b), each Seller has the option to deliver Restricted Shares (having a deemed value equal to the Restricted Share Price), the Company Notes or cash or any combination thereof to the Buyer in payment and satisfaction of such Seller’s obligations under Section 12(b) or (c), and upon any such cash payment, Buyer will release such Restricted Shares which have been pledged all Damages incurred by the parties entitled to it. The total amount paid by a Seller under this Section 12(b) when combined with amounts paid under Section 12(c) shall not exceed such Seller’s Pro Rata Share (as defined below). The Company Notes shall be deemed to have their face value plus accrued interest for purposes of satisfying any indemnity obligations of Sellers under Section 12(b) or (c) and each Seller shall have the option of cancelling all or any portion of such Company Notes to satisfy all or any portion of its indemnification obligations under Section 12(b) or (c). In order to secure Sellers’ obligations under this Section 12(b), Sellers shall pledge their respective Restricted Shares to the Company for one year pursuant to a Pledge Agreement substantially in the form attached hereto as Exhibit C.hereunder. (c) Sellers severally Any party seeking indemnification under this Article 4 (but only in proportion to their respective Pro Rata Sharean “Indemnified Party”) and not jointly agree to indemnifyshall give each party from whom indemnification is being sought (each, defend and hold harmless an “Indemnifying Party”) notice of any matter for which such Indemnified Party is seeking indemnification, stating the Buyer Indemnified Parties from and againstamount of the Damages, if known, and method of computation thereof, and containing a reference to reimburse the Buyer Indemnified Parties with respect to, any and all claims, demands, causes provisions of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) asserted against or incurred by any Buyer Indemnified Party by reason of or arising out of, or resulting from any breach by such Seller of any of the covenants or agreements of such Seller contained in this Agreement in respect of which such right of indemnification is claimed or any representations or warranties arises. The obligations of such Seller contained in Section 5(a), (b) and (c) of an Indemnifying Party under this Agreement. “Pro Rata Share” means Article IV with respect to Damages arising from any Seller a fractionclaims of any third party that are subject to the indemnification provided for in this Article IV (collectively, set forth as a percentage, the numerator of which is the total consideration received by a Seller pursuant to this Agreement for all of such Seller’s Shares as set forth on Annex I, and the denominator of which is the total consideration received by all Sellers pursuant to this Agreement as set forth on Annex I. Each of the Sellers’ liability under this Section 12(c“Third-Party Claims”) shall be limited governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive, after the Closing Date, initial notice of any Third-Party Claim, the Indemnified Party shall give the Indemnifying Party notice of such Third-Party Claim within such time frame as is necessary to its respective portion allow for a timely response and in any event within 30 days of the Purchase Price received receipt by the Indemnified Party of such notice; provided, however, that the failure to provide such timely notice shall not release the Indemnifying Party from any of its obligations under this Article IV except to the extent the Indemnifying Party is materially prejudiced by such Seller failure. The Indemnifying Party shall be entitled to assume and control the defense of such Third-Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within 30 days of the receipt of such notice from the Indemnified Party; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party (upon advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel, at the expense of the Indemnifying Party, provided that the Indemnified Party and such counsel shall contest such Third-Party Claims in good faith. In the event the Indemnifying Party exercises the right to undertake any amounts paid such defense against any such Third-Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials, and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third-Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party's expense, all such witnesses, records, materials, and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as is reasonably required by the Indemnified Party. The Indemnifying Party shall not, without the written consent of the Indemnified Party, (i) settle or compromise any Third-Party Claim or consent to the entry of any judgment that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third-Party Claim, or (ii) settle or compromise any Third-Party Claim in any manner that may adversely affect the Indemnified Party. Finally, no Third-Party Claim that is being defended in good faith by the Indemnifying Party or that is being defended by the Indemnified Party as provided above in this Section 12(b4(c) shall reduce be settled by the Pro Rata Share available for recovery from such Seller under this Section 12(c)Indemnified Party without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.

Survival of Representations Indemnification. 7.1. Survival: Indemnification. (a) The representations covenants, agreements, representations, and warranties of the parties hereto contained in this Agreement herein or in any certificate, instrument, certificate or document other writing delivered pursuant hereto or in connection herewith shall survive the Closing Contribution Date for a period of one year after 12 months. Notwithstanding the Closing Date and shall thereafter terminate and preceding sentence, any covenant, agreement, representation, or warranty in respect of which indemnity may be of no further force or effect, except that (i) the representations and warranties of Sellers and the Company relating to taxes and tax returns in sought under this Section 4(d) and environmental liabilities in Section 4(f) 7 shall survive the Closing for the period time at which it would otherwise terminate pursuant to such sentence, if notice of the inaccuracy or breach thereof giving rise to such indemnity shall have been given to the party against whom such indemnity may be sought, prior to such time, subject to applicable statutes of limitation plus any extensions or waivers thereof, and (ii) any representation or warranty as to which a claim (including without limitation a contingent claim) shall have been asserted during the survival period shall continue in effect with respect to such claim until such claim shall have been finally resolved or settled. Notwithstanding any investigation or audit conducted before or after the Closing Date or the decision of any party to complete the Closing, each party shall be entitled to rely upon the representations and warranties of the other party or parties set forth hereinlimitation. (b) Subject to the limitations set forth below, Sellers jointly Contributing Member and severally agree to indemnify, defend and hold harmless Buyer and the heirs, legal representatives, its successors and assigns of Buyer (collectively, the “Buyer Indemnified Parties” and individually, each a “Buyer Indemnified Party”"Contributing Member Indemnitor"), jointly and severally, hereby agree to indemnify each Blackstone Indemnitee and Blackstone Indemnitee Affiliate against and agree to hold them harmless from and against, and to reimburse the Buyer Indemnified Parties with respect to, any and all claimsactual damage, demandsloss, causes of actionliability, losses, damages, liabilities, costs and expenses expense (including, without limitation, attorneys’ reasonable expenses of investigation and attorney's fees and court costsexpenses in connection with any action, suit, proceeding, claim, investigation, or other loss, but not including any consequential or punitive damages or losses) asserted against or ( "Losses") incurred by any Buyer Indemnified Party by reason of or such Blackstone Indemnitee arising out of, or resulting from of any breach by Sellers in any material respect of any covenant or agreement or of the representations, warranties, covenants any inaccuracy or agreements contained omission in Section 4 of any material respect in any representation or warranty made by Contributing Member pursuant to this Agreement. Each of the Sellers’ liability under this Section 12(b) shall be limited to the Restricted Share Price of the Restricted Shares received by such Seller hereunder. In order to satisfy any liability under this Section 12(b), each Seller has the option to deliver Restricted Shares (having a deemed value equal to the Restricted Share Price), the Company Notes or cash or any combination thereof to the Buyer in satisfaction of such Seller’s obligations under Section 12(b) or (c), and upon any such cash payment, Buyer will release such Restricted Shares which have been pledged to it. The total amount paid by a Seller under this Section 12(b) when combined with amounts paid under Section 12(c) shall not exceed such Seller’s Pro Rata Share (as defined below). The Company Notes shall be deemed to have their face value plus accrued interest for purposes of satisfying any indemnity obligations of Sellers under Section 12(b) or (c) and each Seller shall have the option of cancelling all or any portion of such Company Notes to satisfy all or any portion of its indemnification obligations under Section 12(b) or (c). In order to secure Sellers’ obligations under this Section 12(b), Sellers shall pledge their respective Restricted Shares to the Company for one year pursuant to a Pledge Agreement substantially in the form attached hereto as Exhibit C.. (c) Sellers severally Blackstone Member and its successors and assigns (but only in proportion to their respective Pro Rata Share) each a "Blackstone Indemnitor"), jointly and not jointly severally, hereby agree to indemnify, defend indemnify each Contributing Member Indemnitee and Contributing Member Indemnitee Affiliate against and agree to hold them harmless the Buyer Indemnified Parties from and against, and to reimburse the Buyer Indemnified Parties with respect to, any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) asserted against or actual Losses incurred by any Buyer Indemnified Party by reason of or such Contributing Member Indemnitee arising out of, or resulting from of any breach by such Seller in any material respect of any covenant or agreement or of the covenants any inaccuracy or agreements of such Seller contained omission in this Agreement any material respect in any representation or any representations or warranties of such Seller contained in Section 5(a), (b) and (c) of this Agreement. “Pro Rata Share” means with respect to any Seller a fraction, set forth as a percentage, the numerator of which is the total consideration received warranty made by a Seller Blackstone Member pursuant to this Agreement for all of such Seller’s Shares as set forth on Annex I, and the denominator of which is the total consideration received by all Sellers pursuant to this Agreement as set forth on Annex I. Each of the Sellers’ liability under this Section 12(c) shall be limited to its respective portion of the Purchase Price received by such Seller and any amounts paid under Section 12(b) shall reduce the Pro Rata Share available for recovery from such Seller under this Section 12(c)Agreement.

Survival of Representations Indemnification. 7.1. Survival: Indemnification. (a) The representations covenants, agreements, representations, and warranties of the parties hereto contained in this Agreement herein or in any certificate, instrument, certificate or document other writing delivered pursuant hereto or in connection herewith shall survive the Closing Contribution Date for a period of one year after 12 months. Notwithstanding the Closing Date and shall thereafter terminate and preceding sentence, any covenant, agreement, representation, or warranty in respect of which indemnity may be of no further force or effect, except that (i) the representations and warranties of Sellers and the Company relating to taxes and tax returns in sought under this Section 4(d) and environmental liabilities in Section 4(f) 7 shall survive the Closing for the period time at which it would otherwise terminate pursuant to such sentence, if notice of the inaccuracy or breach thereof giving rise to such indemnity shall have been given to the party against whom such indemnity may be sought, prior to such time, subject to applicable statutes of limitation plus any extensions or waivers thereof, and (ii) any representation or warranty as to which a claim (including without limitation a contingent claim) shall have been asserted during the survival period shall continue in effect with respect to such claim until such claim shall have been finally resolved or settled. Notwithstanding any investigation or audit conducted before or after the Closing Date or the decision of any party to complete the Closing, each party shall be entitled to rely upon the representations and warranties of the other party or parties set forth hereinlimitation. (b) Subject to the limitations set forth below, Sellers jointly Contributing Member and severally agree to indemnify, defend and hold harmless Buyer and the heirs, legal representatives, its successors and assigns of Buyer (collectively, the “Buyer Indemnified Parties” and individually, each a “Buyer Indemnified Party”"Contributing Member Indemnitor"), jointly and severally, hereby agree to indemnify each Blackstone Indemnitee and Blackstone Indemnitee Affiliate against and agree to hold them harmless from and against, and to reimburse the Buyer Indemnified Parties with respect to, any and all claimsactual damage, demandsloss, causes of actionliability, losses, damages, liabilities, costs and expenses expense (including, without limitation, attorneys’ reasonable expenses of investigation and attorney's fees and court costsexpenses in connection with any action, suit, proceeding, claim, investigation, or other loss, but not including any consequential or punitive damages or losses) asserted against or ( "Losses") incurred by any Buyer Indemnified Party by reason of or such Blackstone Indemnitee arising out of, or resulting from of (i) any breach by Sellers in any material respect of any covenant or agreement or of any inaccuracy or omission in any material respect in any representation or warranty made by Contributing Member pursuant to this Agreement or (ii) any breach or default by Contributing Member or Capital Senior Living Corporation under the representations, warranties, covenants Loan Documents or agreements contained in Section 4 of this Agreement. Each of connection with the Sellers’ liability under this Section 12(b) shall be limited Existing Loan prior to the Restricted Share Price of the Restricted Shares received by such Seller hereunder. In order to satisfy any liability under this Section 12(b), each Seller has the option to deliver Restricted Shares (having a deemed value equal to the Restricted Share Price), the Company Notes or cash or any combination thereof to the Buyer in satisfaction of such Seller’s obligations under Section 12(b) or (c), and upon any such cash payment, Buyer will release such Restricted Shares which have been pledged to it. The total amount paid by a Seller under this Section 12(b) when combined with amounts paid under Section 12(c) shall not exceed such Seller’s Pro Rata Share (as defined below). The Company Notes shall be deemed to have their face value plus accrued interest for purposes of satisfying any indemnity obligations of Sellers under Section 12(b) or (c) and each Seller shall have the option of cancelling all or any portion of such Company Notes to satisfy all or any portion of its indemnification obligations under Section 12(b) or (c). In order to secure Sellers’ obligations under this Section 12(b), Sellers shall pledge their respective Restricted Shares to the Company for one year pursuant to a Pledge Agreement substantially in the form attached hereto as Exhibit C.date hereof. (c) Sellers severally Blackstone Member and its successors and assigns (but only in proportion to their respective Pro Rata Share) each a "Blackstone Indemnitor"), jointly and not jointly severally, hereby agree to indemnify, defend indemnify each Contributing Member Indemnitee and Contributing Member Indemnitee Affiliate against and agree to hold them harmless the Buyer Indemnified Parties from and against, and to reimburse the Buyer Indemnified Parties with respect to, any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) asserted against or actual Losses incurred by any Buyer Indemnified Party by reason of or such Contributing Member Indemnitee arising out of, or resulting from of any breach by such Seller in any material respect of any covenant or agreement or of the covenants any inaccuracy or agreements of such Seller contained omission in this Agreement any material respect in any representation or any representations or warranties of such Seller contained in Section 5(a), (b) and (c) of this Agreement. “Pro Rata Share” means with respect to any Seller a fraction, set forth as a percentage, the numerator of which is the total consideration received warranty made by a Seller Blackstone Member pursuant to this Agreement for all of such Seller’s Shares as set forth on Annex I, and the denominator of which is the total consideration received by all Sellers pursuant to this Agreement as set forth on Annex I. Each of the Sellers’ liability under this Section 12(c) shall be limited to its respective portion of the Purchase Price received by such Seller and any amounts paid under Section 12(b) shall reduce the Pro Rata Share available for recovery from such Seller under this Section 12(c)Agreement.