Common use of Indemnification Provisions for Benefit of the Buyer Clause in Contracts

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations in Section 8(b)(ii), the Seller agrees to indemnify the Buyer, SM&P and any of their respective Affiliates, directors, officers, employees and agents (collectively, the "Buyer Indemnified Parties") from and against any Adverse Consequences any Buyer Indemnified Party suffers as a result of the breach of any of the Seller's representations, warranties and covenants contained herein, provided that (A) such Adverse Consequences exceed the Claim Deductible, and (B) in the case of breaches of representations and warranties contained in Section 4, the Buyer makes a written claim for indemnification against the Seller pursuant to Section 11(g) within the applicable survival period. (ii) The Seller shall have no obligation under Section 8(b) to indemnify the Buyer Indemnified Parties from and against any Adverse Consequences arising from or relating to the breach of any representation, warranty or covenant until the aggregate of the Adverse Consequences for all claims (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000. After the aggregate of the Adverse Consequences for all claims under Section 8(b) (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000, the Seller shall indemnify the Buyer Indemnified Parties for all Adverse Consequences in excess of $500,000, up to a maximum aggregate indemnity of $8.0 million.

Indemnification Provisions for Benefit of the Buyer. (ia) Subject to In the limitations in Section 8(b)(ii), event the Seller agrees to indemnify breaches (or in the Buyerevent any third party alleges facts that, SM&P and if true, would mean the Seller has breached) any of their respective Affiliates, directors, officers, employees and agents (collectively, the "Buyer Indemnified Parties") from and against any Adverse Consequences any Buyer Indemnified Party suffers as a result of the breach of any of the Seller's its representations, warranties warranties, and covenants contained herein, provided that (A) and, if there is an applicable survival period with respect to such Adverse Consequences exceed the Claim Deductible, and (B) in the case of breaches of representations and warranties contained in of the Seller pursuant to Section 48.01 above, provided that the Buyer makes a written claim for indemnification against the Seller pursuant within such survival period, then the Seller agrees to Section 11(gindemnify each of Holdings, the Buyer and their respective Affiliates, officers, directors, agents, and representatives (collectively the "Buyer Indemnified Parties") within from and against the entirety of any Adverse Consequences that such Buyer Indemnified Parties may suffer through and after the date of the claim for indemnification (including any Adverse Consequences that such Buyer Indemnified Parties may suffer after the end of any applicable survival period) resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (iib) The Seller shall not have no any obligation under Section 8(b) to indemnify the Buyer Indemnified Parties from and against any Adverse Consequences resulting from, arising from out of, relating to, in the nature of, or relating caused by any set of related facts comprising a breach of one or more of the representations and warranties of the Seller contained in Article II or Article IV above (other than in Section 2.06 or Section 4.11 above), unless such Buyer Indemnified Parties have suffered such Adverse Consequences in excess of a $500,000 aggregate deductible, at which point the Seller will be obligated, subject to the breach provisions of any representationSection 8.02(d), warranty or covenant until the aggregate of the Adverse Consequences for all claims (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000. After the aggregate of the Adverse Consequences for all claims under Section 8(b) (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000, the Seller shall to indemnify the Buyer Indemnified Parties for all from and against further such Adverse Consequences. (c) In addition, the Seller agrees to indemnify the Buyer Indemnified Parties from and against the first $500,000 of Adverse Consequences, plus one-half of any Adverse Consequences in excess of $500,0001,000,000, up in each case that the Buyer Indemnified Parties may suffer in the aggregate resulting from, arising out of, relating to, in the nature of, or caused by the failure of the Seller to obtain prior to the Closing Date any of the landlord (and sublandlord) consents that are required in connection with the transactions contemplated by this Agreement; provided, however, that the Buyer shall use its reasonable efforts to mitigate the amount of any Adverse Consequences that the Buyer Indemnified Parties may suffer with respect to any failure of the Seller to obtain any such consent; and provided further that the Buyer must make a maximum written claim for any such indemnification against the Seller within a survival period of eighteen months after the Closing as described above in Section 8.02 (a) The Seller also agrees to indemnify the Buyer Indemnified Parties from and against the entirety of any Adverse Consequences that such Buyer Indemnified Parties may suffer resulting from, arising out of, relating to, in the nature of, or caused by any of the specific matters identified on Exhibit F attached hereto; provided, that the Seller shall have the right to defend those matters identified under items 1 and 3 of Exhibit F without regard to the provisions of clauses (i), (ii), and (iii) of Section 8.04(b). (d) There will be a $20,000,000 aggregate indemnity ceiling on the obligation of the Seller to indemnify the Buyer Indemnified Parties against Adverse Consequences pursuant to this Section 8.02; provided, however, that this $8.0 million20,000,000 ceiling will not apply with respect to the provisions of Article IX below.

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations contained in Section 8(b)(iiSection8(b)(iii), in the event the Seller breaches any of its representations in Section3 or in the assignment documents transferring to Buyer the Seller's interest in the Acquired Assets (including without limitation, any statutory warranty deeds executed and delivered by Seller) or the Seller breaches any of its covenants contained in Section6 above, the Seller agrees to indemnify the Buyer, SM&P and any of their respective Affiliates, directors, officers, employees and agents (collectively, the "Buyer Indemnified Parties") from and against any Adverse Consequences any the Buyer Indemnified Party suffers as a result shall suffer through and after the date of the breach claim for indemnification caused proximately by the breach, provided however, that the indemnity in this Subsection (i) shall not apply at all to matters disclosed on the Disclosure Schedule, to matters which Buyer knew or had reason to know at the time of the Closing, to matters for which Buyer is indemnifying Seller as provided in this Agreement or to any claims arising after the Seller's representations and warranties become null and void. Solely for purposes of the Seller's representationsindemnification obligations under this Subsection (i), warranties any representation or covenant of Seller in Section3 and covenants contained herein, provided that (A) Section6 which includes the term "material adverse effect" shall be construed as if such Adverse Consequences exceed the Claim Deductible, and (B) in the case of breaches of representations and warranties contained in Section 4, the Buyer makes a written claim for indemnification against the Seller pursuant to Section 11(g) within the applicable survival periodterm instead were "effect" without any additional qualification. (ii) The Seller shall have no obligation under Section 8(b) agrees to indemnify the Buyer Indemnified Parties from and against any Adverse Consequences arising from or relating the Buyer shall suffer caused proximately by any liability of the Seller which is not an Assumed Liability. (iii) Seller's indemnification obligation to the breach of Buyer pursuant to Subsection (i) shall not exceed $1,500,000 million in the aggregate. Buyer agrees that it will not seek indemnification for any representation, warranty or covenant until claim under Subsection (i) unless such claim has a value greater than $25,000. Buyer agrees that it will not seek indemnification for any claim under Subsection (i) unless the aggregate of the Adverse Consequences for all claims (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000. After the aggregate of the Adverse Consequences for all claims under Section 8(bSubsection (i) (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000, the Seller shall indemnify the will result in loss to Buyer Indemnified Parties for all Adverse Consequences in excess of $500,000250,000 in the aggregate, provided however, that once such threshold is exceeded, Seller shall indemnify Buyer for all such claims from the first dollar of claims up to a maximum aggregate indemnity of the $8.0 million1,500,000 limitation specified above.

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations in Section 8(b)(ii), the Seller agrees to indemnify the Buyer, SM&P and any of their respective Affiliates, directors, officers, employees and agents (collectively, the "“Buyer Indemnified Parties"”) from and against any Adverse Consequences any Buyer Indemnified Party suffers as a result of the breach of any of the Seller's representations, warranties warranties, covenants and covenants other agreements contained hereinherein or in any certificate delivered in connection herewith (without regard to any materiality or Material Adverse Effect qualifiers contained in any such representation, warranty, covenant or agreement), provided that (A) such Adverse Consequences arising from any individual claim exceed the Claim Deductible, and (B) in the case of breaches of representations and warranties contained in Section 4, the Buyer makes a written claim for indemnification against the Seller pursuant to Section 11(g) within the applicable survival period. (ii) The Notwithstanding Section 8(b)(i), the Seller shall have no obligation under Section 8(b8(b)(i) to indemnify the Buyer Indemnified Parties from and against any Adverse Consequences arising from or relating to the breach of any representation, warranty or covenant until the aggregate of the Adverse Consequences for all claims (including otherwise required to be indemnified by the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim DeductibleSeller under Section 8(b)(i) exceeds $500,000750,000 (the “Deductible”). After the aggregate of the Adverse Consequences for all claims otherwise required to be indemnified by the Seller under Section 8(b) (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible8(b)(i) exceeds $500,000the Deductible, the Seller shall indemnify the Buyer Indemnified Parties for all Adverse Consequences in excess of $500,000the Deductible, up to a maximum aggregate indemnity under this Agreement of $8.0 million7,000,000 (the “Cap”). Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to claims for indemnification for a breach of the representations and warranties of the Seller contained in (A) Section 3(a) or (B) Sections 4(a) (Organization, Qualification and Corporate Power), 4(b) (Capitalization), 4(e) (Title to Personal Property), 4(l) (Taxes) and 4(r) (Employee Benefits).

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations in Section 8(b)(ii), the Seller agrees to indemnify the Buyerindemnify, SM&P defend and any of their respective Affiliates, hold harmless Buyer and its directors, officersofficers and Affiliates against and in respect of all Liabilities, employees obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable attorneys' and agents expert witness fees and disbursements in connection with investigating, defending or settling any action or threatened action), arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (collectively, the "Buyer Indemnified PartiesLosses") that results from: (1) the inaccuracy of any representation or warranty made by Seller herein or any third party allegation which if true would mean a representation or warranty made by the Seller herein was inaccurate, or resulting from and against any Adverse Consequences any Buyer Indemnified Party suffers as a result of the misrepresentation, breach of warranty (as if all qualifiers specifically using the following words "material", "materiality", "Knowledge", or "Material Adverse Effect" were not contained in such representation or warranty) or nonfulfillment of any agreement or covenant of Seller contained herein or in any agreement or instrument required to be entered into in connection herewith or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Seller hereunder; provided, however, that the Seller's representations, warranties and covenants contained herein, provided that (A) such Adverse Consequences exceed the Claim Deductible, and (BSeller shall not be liable under this Section 9.2(a) in the case respect of breaches of representations and warranties contained in Section 4, the Buyer makes a written claim for indemnification against the Seller pursuant to Section 11(g) within the applicable survival period. (ii) The Seller shall have no obligation under Section 8(b) to indemnify the Buyer Indemnified Parties from and against any Adverse Consequences arising from or relating to the breach of any representation, warranty or covenant Losses until the aggregate of the Adverse Consequences for all claims (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) such Losses exceeds $500,000. After the aggregate of the Adverse Consequences for all claims under Section 8(b) (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000200,000, provided, further, that after such event the Seller shall indemnify the Buyer Indemnified Parties for be required to pay all Adverse Consequences in excess amounts by which such aggregate amount of Losses exceeds $500,000100,000, up to a maximum aggregate indemnity amount of $8.0 million6,000,000; (2) any Liability which is not an Assumed Liability (including any Liability that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law). In the event that Seller may be obliged to indemnify Buyer under both subsection (a) and subsection (b) of this Section 9.2, its obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Seller written notice for any claim made in respect of the indemnification provided in this Section 9.2, whether or not arising out of a claim by a third party.

Indemnification Provisions for Benefit of the Buyer. (i) Subject to In the limitations in Section 8(b)(ii)event: (x) of (1) any inaccuracy, the Seller agrees to indemnify the Buyer, SM&P and any of their respective Affiliates, directors, officers, employees and agents (collectively, the "Buyer Indemnified Parties") from and against any Adverse Consequences any Buyer Indemnified Party suffers as a result of the violation or breach of any of the Seller's representationsSellers’ representations or warranties (without giving effect to any supplement to the Schedules or any qualification as to materiality, warranties and covenants Seller Material Adverse Effect or Seller Adverse Effect) contained herein, provided that herein (A) such Adverse Consequences exceed the Claim Deductible, and (B) in the case of breaches of other than representations and or warranties contained in Sections 3(b)(iv) (Brokers), 4(c)(Capitalization), 4(g) (Tax) and 4(u)(vii) (ERISA)) or (2) any Adverse Consequences attributable to any Buyer’s Title Objections in excess of the first $100,000 thereof; (y) there is an applicable survival period pursuant to Section 4, 9(a); and (z) the Buyer makes a written claim for indemnification against the Seller Sellers pursuant to Section 11(g12(m) within the applicable such survival period, then from and after Closing the Sellers agree, jointly and severally, to release, indemnify and hold harmless the Buyer Indemnitees from and against any Adverse Consequences actually suffered by the Buyer Indemnitees to the extent relating to or arising from such inaccuracy, violation or breach or Buyer’s Title Objection; provided that the Sellers shall not have any obligation to indemnify the Buyer Indemnitees from all such inaccuracies, violations and breaches and or Buyer’s Title Objection until the Buyer Indemnitees, in the aggregate, have suffered Adverse Consequences by reason of the sum of all such inaccuracies, violations and breaches and all such Buyer’s Title Objections in excess of an aggregate deductible amount equal to $5,000,000, at which point the Sellers shall be obligated to indemnify the Buyer Indemnitees from and against fifty percent (50%) of the next $5,000,000 of Adverse Consequences by reason of such sum of all such inaccuracies, violations or breaches and all such Buyer’s Title Objections and 100% of all Adverse Consequences exceeding $10,000,000. (ii) The In the event of: (x) (1) any breach of Sellers’ covenants or obligations in this Agreement, or (2) any inaccuracy, violation or breach in any representation or warranty (without giving effect to any supplement to the Schedules or any qualification as to materiality, Seller shall have no obligation under Material Adverse Effect or Seller Adverse Effect) contained in Sections 3(a)(vi) (Brokers), 4(c) (Capitalization), 4(g) (Tax) or 4(u)(vii) (ERISA), (y) there is an applicable survival period pursuant to Section 8(b9(a); and (x) the Buyer makes a written claim for indemnification against the Sellers pursuant to Section 12(m) within such survival period, then from and after the Closing Sellers agree, jointly and severally, to release and indemnify the Buyer Indemnified Parties Indemnitees from and against the entirety of any Adverse Consequences actually suffered by the Buyer Indemnitees to the extent relating to or arising from such inaccuracy, violation or breach described in clause (x) of this Section 9(b)(ii). (iii) Except to the extent they constitute Assumed Obligations, from and after the Closing the Sellers, jointly and severally, shall release, indemnify, and hold harmless the Buyer Indemnitees against any and all Obligations, liabilities, expenses, costs and Adverse Consequences arising from or relating to (a) the breach of any representation, warranty Retained Obligations or covenant until the aggregate Permitted Indebtedness or (b) liability arising under Section 414(o) of the Code, or from having been under “common control” with any Company, within the meaning of Section 4001(a)(14) of ERISA or (c) any environmental condition, claim or loss existing or arising prior to the Closing, including, in the case of (a) through (c) above, the matters disclosed on the Schedules to this Agreement. (iv) To the extent any Buyer Indemnitee becomes liable to, and is ordered to and does pay to any third party that is not a Buyer Indemnitee, punitive, exemplary, special or consequential damages caused by any matter for which such Buyer Indemnitee is entitled to be indemnified under this Section 9(b), then such punitive, exemplary, special or consequential damages shall be deemed actual damages to such Buyer Indemnitee and included within the definition of Adverse Consequences for purposes of this Section 9. Except to the extent specified in the immediately preceding sentence with respect third party claims, Sellers shall not be liable to any Buyer Indemnitee for any exemplary, punitive, special or consequential damages. Sellers may elect to pay all claims or any portion of amounts due to Buyer under this Article in the form of Units; provided, however, that any payment in such form shall be valued at the average closing price for such Common Units on the Buyer’s primary securities exchange/market during the ten (including 10) trading days immediately preceding the Claim Deductible for each individual claim for day on which Adverse Consequences exceed such payment is due. (v) Notwithstanding anything in Section 9(b)(i) of this Agreement to the Claim Deductible) exceeds $500,000. After the aggregate of the Adverse Consequences for all claims under Section 8(b) (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000contrary, the Seller in no event shall Sellers ever be required to indemnify the Buyer Indemnified Parties Indemnitees for all Adverse Consequences under Section 9(b)(i) in excess of an amount exceeding, in the aggregate, $500,000, up to a maximum aggregate indemnity of $8.0 million112,000,000.