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

Survival of Representations Warranties and Covenants Indemnification. Section 8.1 Survival of Representations, Warranties and Covenants. (a) The representations, warranties and certifications of Parent, Merger Sub and the Company contained in this Agreement, or in any certificate or other instrument delivered pursuant to this Agreement by such Person or on its behalf, shall remain in effect until, and shall expire on, the Closing Date, except that: (1) the representations and warranties contained in Section 4.3 (Capitalization) shall survive until the date one calendar year after the Closing Date; (2) neither the Escrow Termination Date nor any of the other foregoing time limits shall apply to claims based upon fraud or willful misrepresentation; and (3) the representation, warranty, covenant or obligation that is the subject matter of a Claim Notice made in accordance with Section 8.1(c) on or before the Escrow Termination Date, or such later date as applies to the survival of such representation, warranty, covenant or obligation pursuant to this Section 8.1(a), shall not so expire with respect to such Claim Notice or any subsequent Claim Notice that is reasonably related to the subject matter of such initial Claim Notice, but rather shall remain in full force and effect until such time as each and every claim that is based upon the claims or alleged facts or circumstances of such initial Claim Notice has been fully and finally resolved, either by means of a written settlement agreement or by the dispute resolution procedure set forth in Section 8.6. (b) The representations, warranties, certifications, covenants and obligations of Parent, Merger Sub and the Company, and the rights and remedies that may be exercised by any Person having a right to indemnification pursuant to this Article VIII, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any Knowledge of, any of the Indemnified Parties or any of their Representatives. (c) For purposes of this Agreement, a "Claim Notice" relating to a particular representation, warranty, covenant or obligation shall be deemed to have been delivered if any Indemnified Party, acting in good faith, delivers to the Stockholder Agent (with a copy to the Escrow Agent) a written notice stating that such Indemnified Party believes that there is or has been a possible breach of such representation, warranty, covenant or obligation and containing (i) a brief description of the circumstances supporting such Indemnified Party's belief that there is or has been such a possible breach; and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Losses that have arisen and may arise as a direct or indirect result of such possible breach. (d) It is the intent of the parties hereto that all indemnification obligations under this Article VIII shall apply without regard to whether or not (x) any Indemnifying Party was negligent or otherwise at fault in any respect with regard to the existence or occurrence of any of the matters covered by any such indemnification obligation, or (y) any Indemnifying Party otherwise caused or created, or is claimed to have caused or created, the existence or occurrence of any of the matters covered by any such indemnification obligation, whether through its own acts or omissions or otherwise. Notwithstanding the foregoing, the indemnification obligation of the Indemnifying Parties shall be reduced to the extent that an Indemnified Party receives insurance proceeds or other payment from a third party that specifically covers the Losses for which the Indemnifying Parties otherwise would be required to indemnify such Indemnified Party pursuant to this Article VIII. If an Indemnified Party receives insurance proceeds or other payment from a third party that specifically covers Losses for which one or more of the Indemnifying Parties previously paid such Indemnified Party pursuant to this Article VIII, then such Indemnified Party shall refund to the Indemnifying Parties an amount equal to the lesser of (i) the amount that the Indemnifying Parties previously paid to such Indemnified Party relating to such Losses, and (ii) the amount of such insurance proceeds or other payment.

Survival of Representations Warranties and Covenants Indemnification. Section 8.1 Survival of Representations, Warranties and Covenants. (a) The representations, warranties and certifications of Parent, Merger Sub and the Company contained Except as otherwise specifically provided in this Agreement, all representations, warranties, covenants and other agreements in this Agreement or in any certificate or other instrument delivered pursuant to this Agreement by such Person or on its behalf, hereto shall remain in effect until, and shall expire on, survive the Closing Dateand any investigation or inquiry made by the Seller or the Buyer, except that: (1) as the representations and warranties contained in Section 4.3 (Capitalization) shall survive until the date one calendar year after the Closing Date; (2) neither the Escrow Termination Date nor case may be, provided that any claim for a breach of the other foregoing time limits shall apply to claims based upon fraud or willful misrepresentation; and (3) the representation, warranty, covenant or obligation that is the subject matter of a Claim Notice made in accordance with Section 8.1(c) on or before the Escrow Termination Date, or such later date as applies to the survival of any such representation, warranty, covenant or obligation pursuant to this Section 8.1(a), shall not so expire other agreement must be made within the following periods: (i) with respect to such Claim Notice or any subsequent Claim Notice that is reasonably related the matters addressed in Section 3.18, prior to the subject matter lapse of such initial Claim Noticetime within which federal, but rather shall remain state or local taxing authorities are entitled to assert any tax liability on the part of the Bank for tax periods ending at or prior to the Closing Date; and (ii) with respect to all representations, warranties, covenants and agreements not specified in full force and effect until such time as each and every claim that is based upon clause (i) above, within one (1) year after the claims or alleged facts or circumstances of such initial Claim Notice has been fully and finally resolved, either by means of a written settlement agreement or by the dispute resolution procedure set forth in Section 8.6Closing Date. (b) The representationsSeller agrees to indemnify the Buyer (and its directors, warrantiesofficers, certifications, covenants agents and obligations of Parent, Merger Sub and the Companyemployees) against, and the rights Buyer agrees to indemnify the Seller (and remedies that may be exercised by its directors, officers, agents and employees) against, and each of them agrees to protect, to defend and to hold harmless the other (and the other's directors, officers, agents and employees) from all Damages in excess of $1,000,000 arising out of or resulting from any Person having a right to indemnification pursuant to this Article VIII, shall not be limited or otherwise affected by or as a result of any information furnished toinaccuracy in, or any investigation made by or any Knowledge breach of, any of the Indemnified Parties representations, warranties, covenants or other agreements of each of them contained herein or in any certificate or instrument delivered in connection herewith (except, in the case of a breach of the representation contained in Section 3.20, for Remediation Costs as to which the provisions relating to indemnification herein shall be inapplicable and which shall be paid solely as provided for in Section 5.13 hereof), which inaccuracy or breach is asserted and a claim for indemnification with respect thereto is made within the survival period set forth in Section 7.3(a), provided, however, that neither party's individual liability under this Section 7.3(b) shall exceed in the aggregate $15,000,000. Notwithstanding anything to the contrary herein, from and after the Closing Date, subject to the terms and conditions of this Agreement, Seller shall indemnify and protect, defend and hold harmless Buyer (and its directors, officers, agents and employees) from and against all Damages arising out of or resulting from (a) the Retained Assets and Liabilities, (b) the transfer of the Retained Assets and Liabilities from the Bank to another affiliate of KeyCorp and (c) that certain lawsuit entitled XXXXXX XXXXXXX V. KEYCORP, XX.XX., currently pending in the U.S. District Court of the Xxxxxxxx Xxxxxxxx xx Xxx Xxxx, as to which the Bank is a defendant. Notwithstanding the provisions of Section 7.3(a)(ii) or any other provisions to the contrary herein, the Buyer shall indemnify and protect, defend and hold harmless Seller and Holding Company (and their respective directors, officers, agents and employees) from and against all Damages arising out of or resulting from any failure on the part of Buyer or any of their Representativesits affiliates to perform under any leases or subleases, including, without limitation, those Damages which arise under that certain Guaranty or Guaranties to which the Holding Company is a party as guarantor and which relate to those leases or subleases, provided that such failure to perform is asserted, and a claim for indemnification with respect thereto is made, during the term of such leases or subleases, as the same may be extended from time to time, plus any applicable statute of limitations period. (c) For purposes of this AgreementIn the event that the Buyer seeks indemnification from the Seller pursuant to Section 7.3(b) with respect to any environmental claim, a "Claim Notice" relating to a particular representation, warranty, covenant or obligation shall be deemed to have been delivered if any Indemnified Party, acting in good faith, delivers to the Stockholder Agent (with a copy to the Escrow Agent) a written notice stating that such Indemnified Party believes that there is or has been a possible breach of such representation, warranty, covenant or obligation and containing (i) notwithstanding anything to the contrary set forth in paragraph (d) below, the Seller shall have the right to control any remediation of such real property which may be required by any federal, state or local governmental agency or authority, and, in the event of a brief description suit, shall assume the primary defense of and shall have the authority to negotiate, compromise and settle such claim. In the event the Seller elects to assume control over any remediation, it will, at the request of the circumstances supporting such Indemnified Party's belief that there is or has been such Buyer, proceed expeditiously with the remediation, with a possible breach; and (ii) a non-binding, preliminary estimate view both to the cost of the aggregate dollar amount efficient completion of the actual remediation and potential Losses that have arisen the time constraints of the Buyer. The Buyer shall retain the right to employ its own counsel and may arise as a direct or indirect result to participate in the defense of any such possible breachclaim, but shall be solely responsible for its own costs and expenses in connection with such participation. The Buyer agrees to cooperate with the Seller in the investigation of any such claim. (d) It is the intent of the parties hereto that all indemnification obligations In any case under this Article VIII shall apply without regard to whether or not (x) any Indemnifying Party was negligent or otherwise at fault in any respect with regard to the existence or occurrence of any of the matters covered by any such indemnification obligation, or (y) any Indemnifying Party otherwise caused or created, or is claimed to have caused or created, the existence or occurrence of any of the matters covered by any such indemnification obligation, whether through its own acts or omissions or otherwise. Notwithstanding the foregoing, the indemnification obligation of the Indemnifying Parties shall be reduced to the extent that an Indemnified Party receives insurance proceeds or other payment from a third Agreement where one party that specifically covers the Losses for which the Indemnifying Parties otherwise would may be required to indemnify such Indemnified Party pursuant to this Article VIII. If an Indemnified Party receives insurance proceeds the other against any claim or legal action, other payment from a third party that specifically covers Losses for than indemnification under the Tax Agreement, which one or more shall be governed in accordance with the terms and conditions of the Indemnifying Parties previously paid such Indemnified Party pursuant to this Article VIIITax Agreement, then such Indemnified Party indemnification shall refund to be provided in accordance with the Indemnifying Parties an amount equal to the lesser of procedure outlined below: (i) Provided that prompt notice is given of a claim or suit for which indemnification might be claimed, unless the amount that failure to provide such notice does not materially prejudice the Indemnifying Parties previously paid interests of the party to whom such Indemnified Party relating notice is to be provided, the indemnifying party promptly will defend, contest, or otherwise protect against any such Losses, claim or suit at its own cost and expense. (ii) The indemnified party may, but will not be obligated to, participate at its own expense in a defense thereof by counsel of its own choosing, but the amount indemnifying party shall be entitled to control the defense unless the indemnified party has relieved the indemnifying party from liability with respect to the particular matter; PROVIDED that the indemnifying party may only settle or compromise the matter subject to indemnification without the consent of the indemnified party if such settlement includes a complete release of all indemnified parties as to the matters in dispute; and PROVIDED FURTHER that the indemnified party will not unreasonably withhold or delay consent to any settlement or compromise that requires its consent. (iii) In the event the indemnifying party fails to timely defend, contest or otherwise protect against any such claim or suit, the indemnified party may, but will not be obligated to, defend, contest or otherwise protect against the same, and make any compromise or settlement thereof and recover the entire costs thereof from the indemnifying party, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such insurance proceeds claim or suit or the compromise or settlement thereof; PROVIDED, HOWEVER, that if the indemnifying party undertakes the defense of such matter, the indemnified party shall not thereafter be entitled to recover from the indemnifying party for its costs incurred in the defense thereof other paymentthan the reasonable costs of investigation undertaken by the indemnified party and reasonable costs of providing assistance. (iv) The indemnified party shall cooperate and provide such assistance as the indemnifying party may reasonably request in connection with the defense of the matter subject to indemnification and in connection with recovering from any third parties amounts that the indemnifying party may pay or be required to pay by way of indemnification hereunder, PROVIDED that the indemnified party shall not be required to file a claim with its insurers as to any matter subject to indemnification. The indemnified party shall protect its position with respect to any matter that may be the subject of indemnification hereunder in the same manner as it would any similar matter where no indemnification is available.

Survival of Representations Warranties and Covenants Indemnification. Section 8.1 Survival of Representations, Warranties and Covenants. (a) The representations, warranties and certifications of Parent, Merger Sub and the Company contained in this Agreement, or in any certificate or other instrument delivered pursuant to this Agreement by such Person or on its behalf, shall remain in effect until, and shall expire on, the Closing Date, except that: (1) the representations and warranties contained in Section 4.3 (Capitalization) and, to the extent relating thereto, contained in the certificates contemplated by Section 7.2(q) (Company Officers' Certificate), shall survive until the date one calendar year after the Closing Date; (2) neither the Escrow Termination Date nor any of the other foregoing time limits shall apply to claims based upon fraud or willful misrepresentation; and (3) the representation, warranty, covenant or obligation that is the subject matter of a Claim Notice made in accordance with Section 8.1(c) on or before the Escrow Termination Date, or such later date as applies to the survival of such representation, warranty, covenant or obligation pursuant to this Section 8.1(a), shall not so expire with respect to such Claim Notice or any subsequent Claim Notice that is reasonably related to the subject matter of such initial Claim Notice, but rather shall remain in full force and effect until such time as each and every claim that is based upon the claims or alleged facts or circumstances of such initial Claim Notice has been fully and finally resolved, either by means of a written settlement agreement or by the dispute resolution procedure set forth in Section 8.6. (b) The representations, warranties, certifications, covenants and obligations of Parent, Merger Sub and the Company, and the rights and remedies that may be exercised by any Person having a right to indemnification pursuant to this Article VIII, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any Knowledge of, any of the Indemnified Parties or any of their Representatives. (c) For purposes of this Agreement, a "Claim Notice" relating to a particular representation, warranty, covenant or obligation shall be deemed to have been delivered if any Indemnified Party, acting in good faith, delivers to the Stockholder Agent (with a copy to the Escrow Agent) a written notice stating that such Indemnified Party believes that there is or has been a possible breach of such representation, warranty, covenant or obligation and containing (i) a brief description of the circumstances supporting such Indemnified Party's belief that there is or has been such a possible breach; and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Losses that have arisen and may arise as a direct or indirect result of such possible breach. (d) It is the intent of the parties hereto that all indemnification obligations under this Article VIII shall apply without regard to whether or not (x) any Indemnifying Party was negligent or otherwise at fault in any respect with regard to the existence or occurrence of any of the matters covered by any such indemnification obligation, or (y) any Indemnifying Party otherwise caused or created, or is claimed to have caused or created, the existence or occurrence of any of the matters covered by any such indemnification obligation, whether through its own acts or omissions or otherwise. Notwithstanding the foregoing, the indemnification obligation of the Indemnifying Parties shall be reduced to the extent that an Indemnified Party receives insurance proceeds or other payment from a third party that specifically covers the Losses for which the Indemnifying Parties otherwise would be required to indemnify such Indemnified Party pursuant to this Article VIII. If an Indemnified Party receives insurance proceeds or other payment from a third party that specifically covers Losses for which one or more of the Indemnifying Parties previously paid such Indemnified Party pursuant to this Article VIII, then such Indemnified Party shall refund to the Indemnifying Parties an amount equal to the lesser of (i) the amount that the Indemnifying Parties previously paid to such Indemnified Party relating to such Losses, and (ii) the amount of such insurance proceeds or other payment.