Common use of Survival of Representations Indemnification Clause in Contracts

Survival of Representations Indemnification. (a) Seller hereby agrees to indemnify and 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 breach of any material representation or warranty 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 contribute under applicable law to the payment and satisfaction of all Damages incurred by the parties entitled to indemnification hereunder. (b) Buyer hereby agrees to indemnify and hold harmless Seller against Damages actually suffered or paid by Seller as a result of the breach of any representation or warranty made by the Buyer in this Agreement. To the extent that the Buyer's undertakings set forth in this Section 4 (b) may be unenforceable, the Buyer shall contribute the maximum amount that he is permitted to contribute under applicable law to the payment and satisfaction of all Damages incurred by the parties entitled to indemnification hereunder. (c) Any party seeking indemnification under this Article 4 (an “Indemnified Party”) shall give each party from whom indemnification is being sought (each, an “Indemnifying Party”) notice of any matter for which such Indemnified Party is seeking indemnification, stating the amount of the Damages, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations of an Indemnifying Party under this Article IV with respect to Damages arising from any claims of any third party that are subject to the indemnification provided for in this Article IV (collectively, “Third-Party Claims”) shall be 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 allow for a timely response and in any event within 30 days of the 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 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 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 4(c) shall be settled by the Indemnified Party without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.

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 hereby agrees hereunder. In order to indemnify 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 against, and to reimburse the Buyer Indemnified Parties with respect to, any and all damagesclaims, claimsdemands, causes of action, losses, or damages, liabilities, costs and expenses (including reasonable including, without limitation, attorneys' ’ fees and expensescourt costs) (“Damages”) actually suffered asserted against or paid incurred by any Buyer as a result Indemnified Party by reason of the or arising out of, or resulting from any breach of any material representation or warranty made by such Seller of any of the covenants or agreements of such Seller contained in this AgreementAgreement or any representations or warranties of such Seller contained in Section 5(a), 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 contribute under applicable law to the payment and satisfaction of all Damages incurred by the parties entitled to indemnification hereunder. (b) Buyer hereby agrees to indemnify and hold harmless Seller against Damages actually suffered or paid by Seller as a result (c) of the breach of any representation or warranty made by the Buyer in this Agreement. To the extent that the Buyer's undertakings set forth in this Section 4 (b) may be unenforceable, the Buyer shall contribute the maximum amount that he is permitted to contribute under applicable law to the payment and satisfaction of all Damages incurred by the parties entitled to indemnification hereunder. (c) Any party seeking indemnification under this Article 4 (an “Indemnified Party”) shall give each party from whom indemnification is being sought (each, an “Indemnifying Party”) notice of any matter for which such Indemnified Party is seeking indemnification, stating the amount of the Damages, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations of an Indemnifying Party under this Article IV Pro Rata Share” means with respect to Damages arising from any claims Seller a fraction, set forth as a percentage, the numerator of any third party that are subject 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 indemnification provided for in denominator of which is the total consideration received by all Sellers pursuant to this Article IV (collectively, “Third-Party Claims”Agreement as set forth on Annex I. Each of the Sellers’ liability under this Section 12(c) shall be 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 limited to allow for a timely response and in any event within 30 days its respective portion of the receipt Purchase Price received by such Seller and any amounts paid under Section 12(b) shall reduce the Indemnified Party of Pro Rata Share available for recovery from such notice; provided, however, that the failure to provide such timely notice shall not release the Indemnifying Party from any of its obligations Seller under this Article IV except to the extent the Indemnifying Party is materially prejudiced by such 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 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 4(c) shall be settled by the Indemnified Party without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld12(c).

Survival of Representations Indemnification. 7.1. Survival: Indemnification. (a) Seller hereby agrees to indemnify The covenants, agreements, representations, and hold harmless warranties of the Buyer from and against parties hereto contained herein or in any and all damagescertificate or other writing delivered pursuant hereto or in connection herewith shall survive the Contribution Date for a period of 12 months. Notwithstanding the preceding sentence, claimsany covenant, lossesagreement, representation, or expenses (including reasonable attorneys' fees and expenses) (“Damages”) actually suffered or paid by Buyer as a result warranty in respect of which indemnity may be sought under this Section 7 shall survive the time at which it would otherwise terminate pursuant to such sentence, if notice of the inaccuracy or breach of any material representation or warranty made by thereof giving rise to such Seller in this Agreement, though in no event in an amount exceeding indemnity shall have been given to the Purchase Price. To the extent that Seller's undertakings set forth in this Section 4(a) party against whom such indemnity may be unenforceablesought, Seller shall contribute the maximum amount that they are permitted prior to contribute under such time, subject to applicable law to the payment and satisfaction statutes of all Damages incurred by the parties entitled to indemnification hereunderlimitation. (b) Buyer Contributing Member and its successors and assigns (each a "Contributing Member Indemnitor"), jointly and severally, hereby agrees agree to indemnify each Blackstone Indemnitee and Blackstone Indemnitee Affiliate against and agree to hold them harmless Seller against Damages actually suffered from any and all actual damage, loss, liability, and expense (including, without limitation, reasonable expenses of investigation and attorney's fees and expenses in connection with any action, suit, proceeding, claim, investigation, or paid other loss, but not including any consequential or punitive damages or losses) ( "Losses") incurred by Seller as a result such Blackstone Indemnitee arising out of the any breach 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 the Buyer in Contributing Member pursuant to this Agreement. To the extent that the Buyer's undertakings set forth in this Section 4 (b) may be unenforceable, the Buyer shall contribute the maximum amount that he is permitted to contribute under applicable law to the payment and satisfaction of all Damages incurred by the parties entitled to indemnification hereunder. (c) Any party seeking indemnification under this Article 4 Blackstone Member and its successors and assigns (an “Indemnified Party”) shall give each party a "Blackstone Indemnitor"), jointly and severally, hereby agree to indemnify each Contributing Member Indemnitee and Contributing Member Indemnitee Affiliate against and agree to hold them harmless from whom indemnification is being sought (each, an “Indemnifying Party”) notice any and all actual Losses incurred by such Contributing Member Indemnitee arising out of any matter for which such Indemnified Party is seeking indemnification, stating the amount of the Damages, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement breach in any material respect of which such right of indemnification is claimed any covenant or arises. The obligations of an Indemnifying Party under this Article IV with respect to Damages arising from any claims agreement or of any third party that are subject to the indemnification provided for in this Article IV (collectively, “Third-Party Claims”) shall be 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 allow for a timely response and inaccuracy or omission in any event within 30 days of the 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 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 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 material 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 representation or warranty made by the Indemnifying Party or that is being defended by the Indemnified Party as provided above in Blackstone Member pursuant to this Section 4(c) shall be settled by the Indemnified Party without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheldAgreement.

Survival of Representations Indemnification. 7.1. Survival: Indemnification. (a) Seller hereby agrees to indemnify The covenants, agreements, representations, and hold harmless warranties of the Buyer from and against parties hereto contained herein or in any and all damagescertificate or other writing delivered pursuant hereto or in connection herewith shall survive the Contribution Date for a period of 12 months. Notwithstanding the preceding sentence, claimsany covenant, lossesagreement, representation, or expenses (including reasonable attorneys' fees and expenses) (“Damages”) actually suffered or paid by Buyer as a result warranty in respect of which indemnity may be sought under this Section 7 shall survive the time at which it would otherwise terminate pursuant to such sentence, if notice of the inaccuracy or breach of any material representation or warranty made by thereof giving rise to such Seller in this Agreement, though in no event in an amount exceeding indemnity shall have been given to the Purchase Price. To the extent that Seller's undertakings set forth in this Section 4(a) party against whom such indemnity may be unenforceablesought, Seller shall contribute the maximum amount that they are permitted prior to contribute under such time, subject to applicable law to the payment and satisfaction statutes of all Damages incurred by the parties entitled to indemnification hereunderlimitation. (b) Buyer Contributing Member and its successors and assigns (each a "Contributing Member Indemnitor"), jointly and severally, hereby agrees agree to indemnify each Blackstone Indemnitee and Blackstone Indemnitee Affiliate against and agree to hold them harmless Seller against Damages actually suffered from any and all actual damage, loss, liability, and expense (including, without limitation, reasonable expenses of investigation and attorney's fees and expenses in connection with any action, suit, proceeding, claim, investigation, or paid other loss, but not including any consequential or punitive damages or losses) ( "Losses") incurred by Seller as a result such Blackstone Indemnitee arising out of the (i) any breach 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 Buyer Loan Documents or in this Agreement. To connection with the extent that the Buyer's undertakings set forth in this Section 4 (b) may be unenforceable, the Buyer shall contribute the maximum amount that he is permitted to contribute under applicable law Existing Loan prior to the payment and satisfaction of all Damages incurred by the parties entitled to indemnification hereunderdate hereof. (c) Any party seeking indemnification under this Article 4 Blackstone Member and its successors and assigns (an “Indemnified Party”) shall give each party a "Blackstone Indemnitor"), jointly and severally, hereby agree to indemnify each Contributing Member Indemnitee and Contributing Member Indemnitee Affiliate against and agree to hold them harmless from whom indemnification is being sought (each, an “Indemnifying Party”) notice any and all actual Losses incurred by such Contributing Member Indemnitee arising out of any matter for which such Indemnified Party is seeking indemnification, stating the amount of the Damages, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement breach in any material respect of which such right of indemnification is claimed any covenant or arises. The obligations of an Indemnifying Party under this Article IV with respect to Damages arising from any claims agreement or of any third party that are subject to the indemnification provided for in this Article IV (collectively, “Third-Party Claims”) shall be 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 allow for a timely response and inaccuracy or omission in any event within 30 days of the 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 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 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 material 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 representation or warranty made by the Indemnifying Party or that is being defended by the Indemnified Party as provided above in Blackstone Member pursuant to this Section 4(c) shall be settled by the Indemnified Party without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheldAgreement.