Common use of Indemnification by Indemnitor Clause in Contracts

Indemnification by Indemnitor. Indemnitor at all times shall defend, indemnify, and hold Lender harmless from and against any and all liabilities (including strict liability), suits, actions, claims, demands, penalties, damages (including, without limitation, lost profits, consequential damages, interest, penalties, fines, and monetary sanctions), losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and expenses, and remedial costs) (collectively, "Liabilities") that may now or in the future be incurred or suffered by or imposed upon Lender because of, resulting from, in connection with, or arising in any manner whatsoever out of the breach of any warranty or covenant or the inaccuracy of any representation of Indemnitor contained or referred to in this Agreement or that may be asserted as a direct or indirect result of the presence at, on, over or under, or the handling, treatment, storage, transportation, removal, disposal, escape, seepage, leakage, spillage, discharge, emission, or release on or from the Property of any Hazardous Materials or any Hazardous Materials Contamination, whether or not occasioned wholly or in part by any condition, accident, or event caused by any act or omission of Lender; provided, however, Indemnitor shall not be liable for any of the foregoing to the extent the subject of the Liability is caused by or arises out of the gross negligence or willful misconduct of Lender. Such Liabilities also shall include, without limitation: (i) injury to or death of any person; (ii) damage to or loss of the use of any property; (iii) the cost of any demolition and rebuilding of any buildings or improvements on the Property, repair or remediation and the preparation for and completion of any activity required by any Governmental Authority; (iv) any lawsuit brought or threatened, good faith settlement reached, or governmental order relating to the presence, disposal, release, or threatened release of any Hazardous Materials, on, from, or under the Property; and (v) the imposition and removal of any lien on the Property which, with respect to each of the foregoing, results from, in connection with, or arises in any manner whatsoever out of the breach of any warranty or covenant or the inaccuracy of any representation of Indemnitor contained in this Agreement or is asserted as a direct or indirect result of the presence at, on, over or under, or the handling, treatment, storage, transportation, removal, disposal, escape, seepage, leakage, spillage, discharge, emission, or release on or from the Property of any Hazardous Materials or any Hazardous Materials Contamination. 4.1 Any information provided to Lender by Indemnitor under this Agreement is intended to allow Lender to protect its security interest in the Property and is not intended to create or impose upon Lender any obligations with respect to the operation or ownership of the Property. Any rights, authority or approvals granted to Lender by Indemnitor under this Agreement are given solely to protect Lender's security interest in the Property and are not intended to create any obligations upon Lender with respect to the operation or ownership of the Property. 4.2 Notwithstanding anything to the contrary contained in the Loan Documents, except as provided in the immediately following sentences, the provisions of this Section 4 shall (i) survive the termination or expiration of the Loan Documents, the full repayment of the indebtedness and other sums due and payable under the Loan Documents, or the acquiring of title by Lender or its successors and assigns by foreclosure or otherwise, (ii) be fully enforceable against Indemnitor and its successors and assigns, and (iii) constitute a separate undertaking by Indemnitor that serves as an inducement to Lender in extending the Loan to Indemnitor. However, notwithstanding any contrary provision of this Agreement, Indemnitor will have no obligation (including any obligation to indemnify any Lender indemnitee) with respect to any Hazardous Materials that are brought onto the Property after the earlier of the following dates; (i) the date on which the Mortgage has been released or (ii) the date on which the lien of the Mortgage is foreclosed or a conveyance by deed in lieu of such foreclosure is effective. Indemnitor hereby acknowledges that Lender is acting in reliance upon the representations and warranties contained in Section 3 in making the Loan to Indemnitor. Notwithstanding any contrary provision of this Agreement, the terms set forth in Section 2.2.26.5 of the Mortgage will apply to any transfer permitted by the Loan Documents.

Indemnification by Indemnitor. (a) Subject to the Tax Matters Agreement, and Sections 8.01(b), 8.03, 8.04, 8.06, 8.07 and 10.01, Indemnitor at all times shall defend, indemnify, defend and hold Lender harmless from Acquiror and against any and all liabilities (including strict liability), suits, actions, claims, demands, penalties, damages its Affiliates (including, without limitation, lost profits, consequential damages, interest, penalties, fines, the Company and monetary sanctions), losses, costs, the Company Subsidiaries) and expenses (including, without limitation, reasonable attorneys' fees and expenses, and remedial costs) Representatives (collectively, the "LiabilitiesAcquiror Indemnified Parties") against, and reimburse each Acquiror Indemnified Party for, all Losses that such Acquiror Indemnified Party may now at any time suffer or incur, or become subject to, as a result of or in connection with: (i) any inaccuracy or breach of any representation or warranty made by Seller or Indemnitor in this Agreement or in the future be incurred or suffered by or imposed upon Lender because of, resulting from, certificate referred to in connection with, or arising in Section 6.02(a)(iii) (other than any manner whatsoever out of the breach of any warranty or covenant or the inaccuracy of any representation or warranty made by Indemnitor in Section 3.19, which is covered by the Tax Matters Agreement); (ii) any failure by Seller or Indemnitor to perform or comply with any of Indemnitor its covenants or agreements contained or referred to in this Agreement or that may be asserted as a direct or indirect result of Agreement; (iii) any Environmental Claim relating to the presence at, on, over or under, Acquired Real Property Assets or the handlingAcquired Personal Property Assets arising out of actions, omissions, events or facts occurring on or prior to the Closing Date or to the treatment, storage, transportationrecycling or Release at any property to which Hazardous Material was transported from any Acquired Real Property Asset on or prior to the Closing Date; (iv) any Third Party Claim arising out of actions, removalomissions, disposalevents or facts occurring on or prior to the Closing Date relating to the assets (including the Acquired Personal Property Assets), escapeproperties (including the Acquired Real Property Assets) or business of the Company and the Company Subsidiaries, seepageincluding the Actions and matters described in Schedules 3.08 and 3.24(e); (v) any Excluded Assets and any Excluded Liabilities; and (vi) any fees and expenses payable to attorneys, leakageconsultants or accountants retained or hired by or on behalf of Seller, spillageIndemnitor, dischargethe Company, emissionthe Company Subsidiaries and their respective Affiliates and Representatives in connection with the transactions contemplated by the Transaction Agreements. (b) Notwithstanding any other provision to the contrary, Indemnitor shall not be required to indemnify, defend or hold harmless any Acquiror Indemnified Party against, or release reimburse any Acquiror Indemnified Party for: (i) any Losses pursuant to Section 8.01(a)(i) (other than Losses arising solely as a result of or in connection with the inaccuracy or breach of any representation 42 or warranty made by Seller or Indemnitor in Sections 3.01, 3.02, 3.03 or 3.21, as to which this Section 8.01(b) shall not apply) with respect to any claim for inaccuracy or breach of representation if (1) any officer of Acquiror obtained actual knowledge on or before the date hereof that such representation was not true and correct, or (2) any officer of Acquiror obtained actual knowledge (whether during the Due Diligence Review, by notice from Seller or otherwise) that such representation was not true and correct after the date hereof but before the Closing Date, unless on or before the Closing Date (x) Acquiror shall have notified Seller or Indemnitor in writing, providing reasonable detail, of such inaccuracy or breach and (y) Seller and Indemnitor shall have agreed prior to the Closing that Acquiror shall not be obligated to close the transactions contemplated by this Agreement (it being understood that if Acquiror thereafter elects not to so close, this Agreement shall automatically terminate and no party hereto shall have the right to ▇▇▇ any other party hereto or any Releasee for damages or specific performance of this Agreement); provided, that Indemnitor shall have the burden of proof with respect to clauses (1) and (2) above; (ii) with respect to any claim (or series of related claims arising from the Property same underlying facts, events or circumstances), (A) unless such claim (or series of any Hazardous Materials related claims arising from the same underlying facts, events or any Hazardous Materials Contaminationcircumstances) involves Losses in excess of $100,000 and (B) until the aggregate amount of all Losses of the Acquiror Indemnified Parties exceeds $2,000,000, whether or not occasioned wholly or in part by any conditionafter which Indemnitor shall be liable for all Losses of the Acquiror Indemnified Parties, accident, or event caused by any act or omission of Lenderincluding such $2,000,000; provided, however, Indemnitor that this clause (ii) shall not be liable for apply to any of the foregoing Third Party Claim relating to the extent the subject of the Liability is caused by or arises arising out of the gross negligence or willful misconduct operation of Lender. Such Liabilities also the senior living business conducted by Seller, Indemnitor and their respective Affiliates and including, prior to the Closing Date, by the Company and the Company Subsidiaries (the "Seller Operations"); (c) The cumulative aggregate indemnification obligation of the Indemnitor under Sections 8.01(a)(i), 8.01(a)(iii) and 8.01(a)(iv) shall includein no event exceed $75,000,000 in the aggregate; provided, without limitation: (i) injury however, that the foregoing limitation shall not apply to any Third Party Claim relating to or death of any person; (ii) damage to or loss of the use of any property; (iii) the cost of any demolition and rebuilding of any buildings or improvements on the Property, repair or remediation and the preparation for and completion of any activity required by any Governmental Authority; (iv) any lawsuit brought or threatened, good faith settlement reached, or governmental order relating to the presence, disposal, release, or threatened release of any Hazardous Materials, on, from, or under the Property; and (v) the imposition and removal of any lien on the Property which, with respect to each of the foregoing, results from, in connection with, or arises in any manner whatsoever arising out of the Seller Operations. (d) For purposes of this Article VIII and for purposes of determining whether Acquiror Indemnified Parties are entitled to indemnification from Indemnitor pursuant to Sections 8.01(a)(i) and 8.01(b) hereof, any breach of any warranty or covenant or the inaccuracy of in any representation or warranty (other than any representation or warranty contained in Sections 3.06, 3.07 and 3.18 and the first sentence of Section 3.14, as to which this Section 8.01(d) shall not apply) of Indemnitor contained in this Agreement or is asserted as a direct or indirect result of the presence at, on, over or under, or the handling, treatment, storage, transportation, removal, disposal, escape, seepage, leakage, spillage, discharge, emission, or release on or from the Property of any Hazardous Materials or any Hazardous Materials Contamination. 4.1 Any information provided to Lender by Indemnitor under this Agreement is intended to allow Lender to protect its security interest in the Property and is not intended to create or impose upon Lender any obligations with respect to the operation or ownership of the Property. Any rights, authority or approvals granted to Lender by Indemnitor under this Agreement are given solely to protect Lender's security interest in the Property and are not intended to create any obligations upon Lender with respect to the operation or ownership of the Property. 4.2 Notwithstanding anything to the contrary contained in the Loan Documents, except as provided in the immediately following sentences, the provisions of this Section 4 Seller shall (i) survive the termination or expiration of the Loan Documents, the full repayment of the indebtedness and other sums due and payable under the Loan Documents, or the acquiring of title by Lender or its successors and assigns by foreclosure or otherwise, (ii) be fully enforceable against Indemnitor and its successors and assigns, and (iii) constitute a separate undertaking by Indemnitor that serves as an inducement to Lender in extending the Loan to Indemnitor. However, notwithstanding any contrary provision of this Agreement, Indemnitor will have no obligation (including any obligation to indemnify any Lender indemnitee) with respect determined without regard to any Hazardous Materials that are brought onto the Property after the earlier of the following dates; (i) the date on which the Mortgage has been released or (ii) the date on which the lien of the Mortgage is foreclosed or a conveyance by deed in lieu of such foreclosure is effective. Indemnitor hereby acknowledges that Lender is acting in reliance upon the representations and warranties contained in Section 3 in making the Loan to Indemnitor. Notwithstanding any contrary provision of this Agreement, the terms materiality qualifications set forth in Section 2.2.26.5 such representation or warranty, and all references to the terms "material," "materially," "materiality," "Material Adverse Effect" or any similar terms shall be ignored for purposes of the Mortgage will apply to any transfer permitted by the Loan Documentsdetermining whether such representation or warranty was true and correct when made or deemed made.

Indemnification by Indemnitor. (a) Subject to the Tax Matters Agreement, and Sections 8.01(b), 8.03, 8.04, 8.06, 8.07 and 10.01, Indemnitor at all times shall defend, indemnify, defend and hold Lender harmless from Acquiror and against any and all liabilities (including strict liability), suits, actions, claims, demands, penalties, damages its Affiliates (including, without limitation, lost profits, consequential damages, interest, penalties, fines, the Company and monetary sanctions), losses, costs, the Company Subsidiaries) and expenses (including, without limitation, reasonable attorneys' fees and expenses, and remedial costs) Representatives (collectively, the "LiabilitiesAcquiror Indemnified Parties") against, and reimburse each Acquiror Indemnified Party for, all Losses that such Acquiror Indemnified Party may now at any time suffer or in the future be incurred incur, or suffered by become subject to, as a result of or imposed upon Lender because of, resulting from, in connection with, : (i) any inaccuracy or arising in any manner whatsoever out of the breach of any representation or warranty made by Seller or covenant or the inaccuracy of any representation of Indemnitor contained or referred to in this Agreement or that may be asserted as a direct in the certificate to in Section 6.02(a)(iii) (other than any inaccuracy of any referred representation or indirect result warranty made by Indemnitor in Section 3.19, which is covered by the Tax Matters Agreement); (ii) any failure by Seller or Indemnitor to perform or comply with any of its covenants or agreements contained in this Agreement; (iii) any Environmental Claim relating to the presence at, on, over or under, Acquired Real Property Assets or the handlingAcquired Personal Property Assets arising out of actions, omissions, events or facts occurring on or prior to the Closing Date or to the treatment, storage, transportationrecycling or Release at any property to which Hazardous Material was transported from any Acquired Real Property Asset on or prior to the Closing Date; (iv) any Third Party Claim arising out of actions, removalomissions, disposalevents or facts occurring on or prior to the Closing Date relating to the assets (including the Acquired Personal Property Assets), escapeproperties (including the Acquired Real Property Assets) or business of the Company and the Company Subsidiaries, seepageincluding the Actions and matters described in Schedules 3.08 and 3.24(e); (v) any Excluded Assets and any Excluded Liabilities; and (vi) any fees and expenses payable to attorneys, leakageconsultants or accountants retained or hired by or on behalf of Seller, spillageIndemnitor, dischargethe Company, emissionthe Company Subsidiaries and their respective Affiliates and Representatives in connection with the transactions contemplated by the Transaction Agreements. (b) Notwithstanding any other provision to the contrary, Indemnitor shall not be required to indemnify, defend or hold harmless any Acquiror Indemnified Party against, or release reimburse any Acquiror Indemnified Party for: (i) any Losses pursuant to Section 8.01(a)(i) (other than Losses arising solely as a result of or in connection with the inaccuracy or breach of any representation 42 or warranty made by Seller or Indemnitor in Sections 3.01, 3.02, 3.03 or 3.21, as to which this Section 8.01(b) shall not apply) with respect to any claim for inaccuracy or breach of representation if (1) any officer of Acquiror obtained actual knowledge on or before the date hereof that such representation was not true and correct, or (2) any officer of Acquiror obtained actual knowledge (whether during the Due Diligence Review, by notice from Seller or otherwise) that such representation was not true and correct after the date hereof but before the Closing Date, unless on or before the Closing Date (x) Acquiror shall have notified Seller or Indemnitor in writing, providing reasonable detail, of such inaccuracy or breach and (y) Seller and Indemnitor shall have agreed prior to the Closing that Acquiror shall not be obligated to close the transactions contemplated by this Agreement (it being understood that if Acquiror thereafter elects not to so close, this Agreement shall automatically terminate and no party hereto shall have the right to sue any other party hereto or any Releasee for damages or s▇▇▇ific performance of this Agreement); provided, that Indemnitor shall have the burden of proof with respect to clauses (1) and (2) above; (ii) with respect to any claim (or series of related claims arising from the Property same underlying facts, events or circumstances), (A) unless such claim (or series of any Hazardous Materials related claims arising from the same underlying facts, events or any Hazardous Materials Contaminationcircumstances) involves Losses in excess of $100,000 and (B) until the aggregate amount of all Losses of the Acquiror Indemnified Parties exceeds $2,000,000, whether or not occasioned wholly or in part by any conditionafter which Indemnitor shall be liable for all Losses of the Acquiror Indemnified Parties, accident, or event caused by any act or omission of Lenderincluding such $2,000,000; provided, however, Indemnitor that this clause (ii) shall not be liable for apply to any of the foregoing Third Party Claim relating to the extent the subject of the Liability is caused by or arises arising out of the gross negligence or willful misconduct operation of Lender. Such Liabilities also the senior living business conducted by Seller, Indemnitor and their respective Affiliates and including, prior to the Closing Date, by the Company and the Company Subsidiaries (the "Seller Operations"); (c) The cumulative aggregate indemnification obligation of the Indemnitor under Sections 8.01(a)(i), 8.01(a)(iii) and 8.01(a)(iv) shall includein no event exceed $75,000,000 in the aggregate; provided, without limitation: (i) injury however, that the foregoing limitation shall not apply to any Third Party Claim relating to or death of any person; (ii) damage to or loss of the use of any property; (iii) the cost of any demolition and rebuilding of any buildings or improvements on the Property, repair or remediation and the preparation for and completion of any activity required by any Governmental Authority; (iv) any lawsuit brought or threatened, good faith settlement reached, or governmental order relating to the presence, disposal, release, or threatened release of any Hazardous Materials, on, from, or under the Property; and (v) the imposition and removal of any lien on the Property which, with respect to each of the foregoing, results from, in connection with, or arises in any manner whatsoever arising out of the Seller Operations. (d) For purposes of this Article VIII and for purposes of determining whether Acquiror Indemnified Parties are entitled to indemnification from Indemnitor pursuant to Sections 8.01(a)(i) and 8.01(b) hereof, any breach of any warranty or covenant or the inaccuracy of in any representation or warranty (other than any representation or warranty contained in Sections 3.06, 3.07 and 3.18 and the first sentence of Section 3.14, as to which this Section 8.01(d) shall not apply) of Indemnitor contained in this Agreement or is asserted as a direct or indirect result of the presence at, on, over or under, or the handling, treatment, storage, transportation, removal, disposal, escape, seepage, leakage, spillage, discharge, emission, or release on or from the Property of any Hazardous Materials or any Hazardous Materials Contamination. 4.1 Any information provided to Lender by Indemnitor under this Agreement is intended to allow Lender to protect its security interest in the Property and is not intended to create or impose upon Lender any obligations with respect to the operation or ownership of the Property. Any rights, authority or approvals granted to Lender by Indemnitor under this Agreement are given solely to protect Lender's security interest in the Property and are not intended to create any obligations upon Lender with respect to the operation or ownership of the Property. 4.2 Notwithstanding anything to the contrary contained in the Loan Documents, except as provided in the immediately following sentences, the provisions of this Section 4 Seller shall (i) survive the termination or expiration of the Loan Documents, the full repayment of the indebtedness and other sums due and payable under the Loan Documents, or the acquiring of title by Lender or its successors and assigns by foreclosure or otherwise, (ii) be fully enforceable against Indemnitor and its successors and assigns, and (iii) constitute a separate undertaking by Indemnitor that serves as an inducement to Lender in extending the Loan to Indemnitor. However, notwithstanding any contrary provision of this Agreement, Indemnitor will have no obligation (including any obligation to indemnify any Lender indemnitee) with respect determined without regard to any Hazardous Materials that are brought onto the Property after the earlier of the following dates; (i) the date on which the Mortgage has been released or (ii) the date on which the lien of the Mortgage is foreclosed or a conveyance by deed in lieu of such foreclosure is effective. Indemnitor hereby acknowledges that Lender is acting in reliance upon the representations and warranties contained in Section 3 in making the Loan to Indemnitor. Notwithstanding any contrary provision of this Agreement, the terms materiality qualifications set forth in Section 2.2.26.5 such representation or warranty, and all references to the terms "material," "materially," "materiality," "Material Adverse Effect" or any similar terms shall be ignored for purposes of the Mortgage will apply to any transfer permitted by the Loan Documentsdetermining whether such representation or warranty was true and correct when made or deemed made.