Common use of Survival of Representations Warranties and Agreements Indemnification Clause in Contracts

Survival of Representations Warranties and Agreements Indemnification. (a) The covenants and agreements in this Agreement or in any certificate or instrument delivered pursuant to this Agreement shall survive the Effective Time in accordance with their respective terms. None of the representations or warranties in this Agreement or in any certificate or instrument delivered pursuant to this Agreement (except for the certificates substantially in the forms attached hereto in Exhibits G and H) shall survive the Effective Time. Subject to Section 9.14, the Confidentiality Agreement shall survive the execution and delivery of this Agreement and any termination of this Agreement, and the provisions of the Confidentiality Agreement shall apply to all information and material furnished by any party or its representatives thereunder or hereunder. (b) Following the Effective Time, Forest will indemnify, defend and hold harmless Spinco, the Company and each Person, if any, who controls, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (any such person being hereinafter referred to as a "Controlling Person"), Spinco or the Company from and against, and pay or reimburse each of the foregoing for, all losses, claims, damages, liabilities, actions, costs and expenses, joint or several, including reasonable attorneys' fees (collectively, "Losses"), arising out of or resulting from, directly or indirectly, or in connection with any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that Forest shall not be responsible for information provided by the Company as to itself and its Subsidiaries specifically for inclusion in, or incorporation by reference into, any such Proxy Statement/Prospectus or Registration Statement. (c) Following the Effective Time, Spinco will indemnify, defend and hold harmless Forest and each Controlling Person of Forest from and against, and pay or reimburse each of the foregoing for, all Losses arising out of or resulting from, directly or indirectly, or in connection with any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only with respect to information provided by the Company as to itself and its Subsidiaries specifically for inclusion in, or incorporation by reference into, any such Proxy Statement/Prospectus or Registration Statement.

Survival of Representations Warranties and Agreements Indemnification. (a) The covenants and agreements in this Agreement or in any certificate or instrument delivered pursuant to this Agreement shall survive the Effective Time in accordance with their respective terms. None of the representations or warranties in this Agreement or in any certificate or instrument delivered pursuant to this Agreement (except for the certificates substantially in the forms attached hereto in Exhibits G and H) shall survive the Effective Time. Subject to Section 9.14, the Confidentiality Agreement shall survive the execution and delivery of this Agreement and any termination of this Agreement, and the provisions of the Confidentiality Agreement shall apply to all information and material furnished by any party or its representatives thereunder or hereunder. (b) Following the Effective Time, Forest will indemnify, defend and hold harmless Spinco, the Company and each Person, if any, who controls, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (any such person being hereinafter referred to as a "“Controlling Person"”), Spinco or the Company from and against, and pay or reimburse each of the foregoing for, all losses, claims, damages, liabilities, actions, costs and expenses, joint or several, including reasonable attorneys' ’ fees (collectively, "“Losses"”), arising out of or resulting from, directly or indirectly, or in connection with any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that Forest shall not be responsible for information provided by the Company as to itself and its Subsidiaries specifically for inclusion in, or incorporation by reference into, any such Proxy Statement/Prospectus or Registration Statement. (c) Following the Effective Time, Spinco will indemnify, defend and hold harmless Forest and each Controlling Person of Forest from and against, and pay or reimburse each of the foregoing for, all Losses arising out of or resulting from, directly or indirectly, or in connection with any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only with respect to information provided by the Company as to itself and its Subsidiaries specifically for inclusion in, or incorporation by reference into, any such Proxy Statement/Prospectus or Registration Statement.

Survival of Representations Warranties and Agreements Indemnification. (a) The covenants Except as set forth in this Section 9.1(a) and for the agreements set forth in Sections 6.8 and 6.12, none of the agreements in this Agreement or in any certificate or instrument delivered pursuant to this Agreement shall survive the Effective Time in accordance with their respective termsTime. None of the representations or warranties in this Agreement or in any certificate or instrument delivered pursuant to this Agreement (except for the certificates substantially in the forms attached hereto in Exhibits G and H) shall survive the Effective Time. Subject to Section 9.14, the The Confidentiality Agreement shall survive the execution and delivery of this Agreement and any termination of this Agreement, and the provisions of the Confidentiality Agreement shall apply to all information and material furnished by any party or its representatives thereunder or hereunder. (b) Following the Effective Time, Forest Pennzoil will indemnify, defend and hold harmless SpincoPPC, the Company Quaker State and each Person, if any, who controls, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (any such person being hereinafter referred to as a "Controlling Person"), Spinco PPC or the Company Quaker State from and against, and pay or reimburse each of the foregoing for, all losses, claims, damages, liabilities, actions, costs and expenses, joint or several, including reasonable attorneys' fees (collectively, "Losses"), arising out of or resulting from, directly or indirectly, or of in connection with with: (i) any assets or liabilities of, or the operations of, Pennzoil or any of its Subsidiaries (other than PPC and its Subsidiaries). (ii) any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; providedmisleading PROVIDED, howeverHOWEVER, that Forest Pennzoil shall not be responsible for information provided by the Company as to itself and its Subsidiaries Quaker State specifically for inclusion in, or incorporation by reference into, any such Proxy Statement/Prospectus or Registration Statement. (iii) any financial advisory, broker's, finder's or similar fee or commission, reimbursement of expenses or indemnification or contribution payable in connection with the transactions contemplated by this Agreement and the other Transaction Agreements to any agent, broker, investment banker, financial advisor or other similar Person (x) by Pennzoil or (y) by PPC in excess of the amount set forth in Section 4.17 of the PPC Disclosure Schedule. (c) Following the Effective Time, Spinco PPC and Quaker State will jointly and severally indemnify, defend and hold harmless Forest Pennzoil and each Controlling Person controlling person of Forest Pennzoil from and against, and pay or reimburse each of the foregoing for, all Losses arising out of or resulting from, directly or indirectly, or of in connection with with: (i) any assets or liabilities of, or the operations of, PPC and Quaker State or any of their Subsidiaries; (ii) any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only with respect to information provided by the Company as to itself and its Subsidiaries Quaker State specifically for inclusion in, or incorporation by reference into, any such Proxy Statement/Prospectus or Registration Statement.

Survival of Representations Warranties and Agreements Indemnification. (a) The All covenants (other than those in Section 2.3, Section 6.21 (which survives indefinitely), and this Section and those which have been expressly waived by the party entitled thereto), and all representations and warranties contained in this Agreement and made at Closing, shall survive Closing for one (1) year from the Closing Date. No claim for a breach of any representation or warranty or covenant contained in this Agreement may be maintained by any party alleging such breach or misrepresentation unless such aggrieved party shall have delivered a written notice ("Notice of Breach") specifying the details (to the extent known at such time) of such claimed breach to the alleged breaching party within: (A) as to breaches of representations and warranties, one (1) year from the Closing Date, except as provided in Section 10.1(b)(ii), and (B), as to breaches or defaults in covenants, one year from the date the obligation to perform the covenant to which the breach or default pertains first arises (the "Survival Period"). Each representation, warranty, covenant and agreement contained herein, and each exception thereto, is independent of all other warranties, representations, covenants, agreements and exceptions contained herein (whether covering an identical or related subject matter) and must be independently and separately complied with and satisfied. No such representation or warranty shall be deemed to have been waived, affected or impaired by any investigation made by the party to whom such representation or warranty is given hereunder unless such party proceeded with the Closing with full knowledge of the facts arising to a breach of any such representations or warranties. (i) To the extent and in the manner provided in this Section, each of the Contributors, jointly and severally, hereby agrees to indemnify and hold harmless the Company, OP and their respective successors and assigns from, against and in respect of all Losses (defined below) (other than Losses described in Section 10.1(b)(ii) below) sustained or incurred as a result of, or arising out of, (i) any inaccuracy in or breach of any representation or warranty of any of the Contributors in this Agreement or in (ii) any certificate breach of any covenant or instrument delivered agreement to be performed post-Closing by any of the Contributors pursuant to this Agreement shall survive or any document delivered by Contributors to the Effective Time Company, OP or any Subsidiary at Closing. (ii) To the extent and in accordance with the manner provided in this Section, each of the Contributors of the stock of POB, jointly and severally, hereby agrees to indemnify and hold harmless the Company, OP and their respective terms. None successors and assigns from, against and in respect of all Losses sustained or incurred as a result of, or arising out of, any inaccuracy in or breach of any representation or warranty of any of the representations Contributors in Section 4.2(d)(ii) of this Agreement, provided that the Notice of Breach shall be delivered to the Contributors of the stock of POB within two (2) years of the Closing Date. (i) To the extent and in the manner provided in this Section, each of the Company and OP, jointly and severally, hereby agrees to indemnify and hold harmless the Contributors and their respective successors and assigns from, against and in respect of any and all Losses (other than Losses described in Section 10.1(c)(ii) below) sustained or warranties incurred as a result of, or arising out of, (i) any inaccuracy in or breach of any representation or warranty of the Company or OP in this Agreement or in (ii) any certificate breach of any covenant or instrument delivered agreement to be performed post-Closing by the Company or OP pursuant to this Agreement or any document delivered by the Company, OP or any Subsidiary to Contributors at Closing; (except for ii) To the certificates substantially extent and in the forms attached hereto manner provided in Exhibits G this Section, each of the Company and H) shall survive OP, jointly and severally, hereby agrees to indemnify and hold harmless the Effective Time. Subject to Section 9.14Contributors and their respective successors and assigns from, against and in respect of any and all Losses sustained or incurred as a result of, or arising out of, the Confidentiality Agreement shall survive existence of Hazardous Substances, USTs, asbestos-containing materials or PCBs in, under or upon the execution and delivery of this Agreement and any termination of this Agreement, and the provisions of the Confidentiality Agreement shall apply to all information and material furnished by any party or its representatives thereunder or hereunderCactus Village Shopping Center in concentrations exceeding applicable cleanup levels which require remediation under Environmental Laws. (bd) Following If a claim arises as to which a party hereto is entitled to indemnification hereunder (an "Indemnitee"), such Indemnitee shall issue a Notice of Breach within the Effective Time, Forest will indemnify, defend Survival Period to the party obligated to indemnify the Indemnitees (an "Indemnitor") specifying the details of such claim of Loss (as to which notice to Contributors in accordance with Section 10.2 below shall be considered sufficient notice as to all Contributors and hold harmless Spinco, as to which notice to the Company in accordance with Section 10.2 below shall be considered sufficient notice as to the Company and each Person, if any, who controls, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (any such person being hereinafter referred to as a "Controlling Person"OP), Spinco or the Company from and against, and pay or reimburse each of the foregoing for, all losses, claims, damages, liabilities, actions, costs and expenses, joint or several, including reasonable attorneys' fees (collectively, "Losses"), arising out of or resulting from, directly or indirectly, or in connection with any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that Forest the failure to provide the Notice of Breach as aforesaid shall not relieve an Indemnitor from its indemnification obligations hereunder unless, and only to the extent, that (i) such failure materially prejudices the Indemnitor's defense with regard to such claim or (ii) the Notice of Breach is not delivered during the Survival Period. (e) Notwithstanding anything herein to the contrary: (i) No claim for indemnity may be maintained with respect to Losses under subsection 10.1(b) or 10.1(c) unless an Indemnitee shall have delivered the Notice of Breach to the Indemnitor on or before the expiration of the Survival Period; (ii) The obligation of any Indemnitor to indemnify any Indemnitee hereunder for a Loss shall be reduced to the extent that the Indemnitee is entitled to payment for all or a portion of such Loss under any insurance policy or policies; (iii) The Company and OP shall not be responsible entitled to seek indemnification for information provided by Losses under Section 10.1(b)(i) hereunder until the aggregate amount of such Losses shall equal $500,000, in which event the Company as and OP shall be entitled to itself seek indemnification for the total amount of such Losses; (iv) The Contributors shall not be entitled to seek indemnification for Losses under Section 10.1(c)(i) hereunder until the aggregate amount of such Losses shall equal $500,000 (prior to the application of any Gross Up Amount (defined below)), in which event the Contributors shall be entitled to seek indemnification for the total amount of such Losses including any Gross Up Amount; and (v) The Contributors shall not be entitled to seek indemnification for Losses under Section 10.1(c)(ii) hereunder until the aggregate amount of such Losses shall equal $200,000 (prior to the application of any Gross Up Amount), in which event the Contributors shall be entitled to seek indemnification for the total amount of such Losses including any Gross Up Amount; and (vi) The total amount of Losses to which the Company, OP and its the Subsidiaries specifically for inclusion inshall be entitled to indemnification under Section 10.1(b)(i) hereunder shall not exceed $5,000,000, or incorporation by reference intoand the total amount of Losses to which the Company, any such Proxy Statement/Prospectus or Registration StatementOP and the Subsidiaries shall be entitled to indemnification under Section 10.1(b)(ii) hereunder shall not exceed $7,000,000. (cvii) Following The total amount of Losses to which the Effective Time, Spinco will indemnify, defend and hold harmless Forest and each Controlling Person of Forest from and againstContributors shall be entitled to indemnification under Section 10.1(c)(i) hereunder shall not exceed $5,000,000 prior to any Gross Up Amount, and pay or reimburse each the total amount of Losses to which the foregoing for, all Losses arising out of or resulting from, directly or indirectly, or in connection with Contributors shall be entitled to indemnification under Section 10.1(c)(ii) hereunder shall not exceed $2,000,000 prior to any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into either of the Registration Statements or in the Proxy Statement/Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only with respect to information provided by the Company as to itself and its Subsidiaries specifically for inclusion in, or incorporation by reference into, any such Proxy Statement/Prospectus or Registration StatementGross Up Amount.