Common use of Transaction Structure Clause in Contracts

Transaction Structure. Notwithstanding anything in this Agreement to the contrary, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided that (a) any such Requested Changes would not reasonably be expected to have an adverse effect on the Company or any Company Subsidiary or the holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (e) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions set forth in Article VIII, other than such conditions that are to be satisfied at the Closing and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE III

Transaction Structure. Notwithstanding anything in this Agreement to the contrary, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided provided, however, that (a) any such Requested Changes would not reasonably be expected to have an adverse effect in any material respect on the Company or any Company Subsidiary or the holders of the Company Common StockShares, the Partnership OP Units, Series A Preferred Units or the Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common StockShares, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.510.3, (d) none of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (e) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions set forth in Article VIII, other than such conditions that are to be satisfied at the Closing and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder shareholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder shareholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable and documented out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE III.

Transaction Structure. Notwithstanding anything Prior to the Closing, the Parties agree to co-operate in structuring the sale of the Purchased Assets as set forth in Schedule 2.5 and, to the extent necessary, any amendments made thereto with the consent of the Parties prior to the Closing Time, subject to the following: (a) the Buyer will structure the implementation of steps 2 and 13 (the “Buyer Purchase Structure”) as set forth in Schedule 2.5 in a manner so that no costs and expenses (including, without limitation, legal fees and disbursements) will be borne by MDS or any of the other Sellers and Buyer will be solely responsible for any and all Taxes actually incurred by MDS in connection with or in any way related to the implementation of the Buyer Purchase Structure and any costs and expenses (including, without limitation, legal fees and disbursements) actually incurred by MDS or the Sellers in the event of the termination or unwinding of such steps of the Buyer Purchase Structure should Closing not occur (unless Closing does not occur as a result of the failure of MDS to satisfy any conditions precedent within its control), and the Buyer shall indemnify and reimburse MDS and the Sellers forthwith, on an as incurred basis, for any and all such Taxes, costs and expenses; (b) without restricting the application of paragraph (a) above, MDS agrees to reasonably cooperate with Buyer in respect of any required or desired amendment to Schedule 2.5 following the date of this Agreement; provided, however, that (i) if MDS or any of the Operators incurs incremental Taxes in connection with or in any way related to the subject matter of the amendment, or (ii) if such amendment materially increases the risk for liability to Tax to MDS or any of the Operators, and MDS or any of the Operators incurs Taxes in connection with or in any way related to the subject matter of such amendment, in both (i) and (ii) as determined by MDS, acting reasonably, Buyer shall be solely responsible for any and all such Taxes. In the event of any such amendment, Buyer shall be responsible for all costs and expenses (including, without limitation, all legal fees and disbursements) actually incurred by MDS or any of the Operators in connection with or in any way related to implementation of the subject matter of any such amendment to Schedule 2.5. Buyer shall indemnify and reimburse each of MDS and the Operators forthwith, on an as incurred basis, for any and all such Taxes, costs and expenses so incurred; (c) without restricting the application of paragraph (a) above, Buyer agrees to reasonably cooperate with MDS in respect of any required or desired amendment to Schedule 2.5 following the date of this Agreement; provided, however, that (i) if Buyer or any Designated Buyer Affiliate incurs incremental Taxes in connection with or in any way related to the subject matter of the amendment, or (ii) if such amendment materially increases the risk for liability to Tax to Buyer or any Designated Buyer Affiliate, and Buyer or any Designated Buyer Affiliate incurs Taxes in connection with or in any way related to the subject matter of such amendment, in both (i) and (ii) as determined by Buyer, acting reasonably, MDS shall be solely responsible for any and all such Taxes. In the event of any such amendment, MDS shall be responsible for all costs and expenses (including, without limitation, all legal fees and disbursements) actually incurred by Buyer or any Designated Buyer Affiliate in connection with or in any way related to implementation of the subject matter of any such amendment to Schedule 2.5. MDS shall indemnify and reimburse each of Buyer or any Designated Buyer Affiliate forthwith, on an as incurred basis, for any and all such Taxes, costs and expenses so incurred; and (d) the obligation of the Parties set forth in this Section 5.13 shall, notwithstanding any other provision of this Agreement to the contrary, the Company Parties shall cooperate with survive completion or termination of this Agreement and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation hereby and shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (continue in full force and effect for the “Requested Changes”); provided that (a) any such Requested Changes would not reasonably be expected to have an adverse effect on the Company or any Company Subsidiary or the holders benefit of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to other Party until 60 days after the form or amount of consideration to be received by holders expiration of the Company Common Stockperiod during which, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (e) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions set forth in Article VIII, other than such conditions that are to be satisfied at the Closing and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, any waiver or other adverse Tax consequences todocument extending such period, any stockholder an assessment, reassessment or other equity interest holder form of the Company or the Partnership (in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties recognized document assessing liability for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to Taxes could be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE IIIissued under applicable Tax laws.

Transaction Structure. Notwithstanding anything in this Agreement If, prior to the contrarydate on which Parent commences solicitation of proxies for use at the Parent Stockholders’ Meeting, the Company Parties IRS notifies TDCC that the IRS will not issue one or more of the requested rulings, then, during the sixty (60) day period starting from the date of such IRS notification, the parties hereto shall cooperate collaborate reasonably and in good faith in order to determine a possible alternative structure for the transactions contemplated hereby that the parties hereto determine, with and agree the assistance of their respective tax advisors, will either make likely the receipt from the IRS of the ruling at issue or eliminate the necessity for the rulings, in either case, without (a) increasing in any material respect the costs to any reasonable changes requested by Parent solely regarding party hereto or any of their respective Affiliates; (b) causing the structure or steps performance of the covenants and agreements of any party hereto to become more burdensome in any material respect; (c) expanding in any material respect the scope of consents and approvals required to consummate the transactions contemplated hereby; (d) decreasing in any material respect the expected benefits of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments hereby to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided that (a) any such Requested Changes would not reasonably be expected to have an adverse effect on the Company or any Company Subsidiary or the holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none of the Company, the Partnership party hereto or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents respective Affiliates; or any Company Material Contract, (e) otherwise resulting in any substantial impediment to the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all consummation of the conditions transactions contemplated hereby. In the event the parties hereto reasonably, and in good faith, agree upon such an alternative transaction structure, they shall, as soon as practicable thereafter, modify the covenants and agreements set forth in Article VIIIthis Agreement and the other Transaction Documents accordingly to reflect the change in transaction structure referenced in the immediately preceding sentence. In furtherance of the foregoing, other than such conditions that are each of the parties hereto shall take all action reasonably necessary to modify the ruling request to reflect the transactions as so modified and effectuate the change in transaction structure contemplated by this Section 2.08, and each party hereto shall use its reasonable best efforts to cause the transactions contemplated hereby, as so modified, to be satisfied at the Closing consummated as soon as practicable thereafter and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with the terms of this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE IIIAgreement.

Transaction Structure. Notwithstanding anything in this Agreement to the contrary, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided that (a) If requested by any other Party to implement any reorganization transactions or implement any changes to the structure of the Transactions (each, a “Pre-Closing Reorganization”), each Party shall consider such Requested Changes would Pre-Closing Reorganization in good faith and cooperate with the other Parties to the extent it determines in good faith that such reorganization transactions or transaction structure changes are advisable, in the best interests of the Company and will not reasonably (i) have an adverse impact on such Party or its direct or indirect Subsidiaries or securityholders, (ii) alter or change the amount or kind of the consideration to be expected to received or paid by any of its or any of its securityholders in connection with the Transactions, (iii) have an adverse effect on the Company Tax consequences of the Transactions to the Party or any Company Subsidiary of its Subsidiaries or its direct or indirect securityholders, (iv) materially impede or delay consummation of any of the holders Transactions, and (v) result in any breach by any Party or any of its Subsidiaries of any Material Contract in the case of the Company Common Stockand its Subsidiaries or any Contract in the case of FEAC and its Subsidiaries or, Partnership OP Unitsin each case, Series A Preferred Units any Contract with a Governmental Entity, Order, Governing Document or Company Equity Awards, including any change Law. Any such changes to the form or amount of consideration to be received by holders structure of the Transactions that are agreed upon by FEAC and the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, shall be set forth in writing in an amendment to this Agreement pursuant to the terms hereof. (b) none Each Party hereby waives any breach of the Requested Changes shall delay a representation, warranty or prevent the Closingcovenant by any other Party, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none where such breach is a result of the Company, the Partnership an action taken by that other Party or any of their Subsidiaries (including all Company Subsidiaries) shall be required Affiliate thereof pursuant to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (e) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions set forth in Article VIII, other than such conditions that are to be satisfied at the Closing and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership Party in accordance with this Section 2.5 2.19. (including reasonable fees and expenses c) Each Party shall provide written notice to the other Parties of their Representatives)any proposed Pre-Closing Reorganization at least 15 Business Days prior to the Closing Date. The Parent PartiesUpon receipt of such notice, on a joint and several basiseach Party shall, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiariesextent it determines in good faith that such proposed Pre-Closing Reorganization is advisable in accordance with Section 2.19(a), cooperate and their Representatives from use commercially reasonable efforts to prepare prior to the Closing Date all documentation necessary and against any do all such other acts and all liabilitiesthings as are reasonably necessary, lossesincluding making amendments to this Agreement or the Plan of Arrangement, damages, claims, costs, expenses, interest, awards, judgments to give effect to such Pre-Closing Reorganization and penalties suffered or incurred by them in connection with or to complete such Pre-Closing Reorganization as a result of taking such actions. Without limiting closely as reasonably practicable prior to the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE IIIClosing Date.

Transaction Structure. Notwithstanding anything in this Agreement to In the contrary, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided event that (a) any such Requested Changes would not reasonably be expected to have an adverse effect on the Company or any Company Subsidiary or the holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (ei) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions consent set forth in Article VIII, other than such conditions that are Schedule 4(a)(iv) is not reasonably expected to be satisfied at obtained (and in any event if such consent has not been obtained within five (5) business days prior to the scheduled Closing Date set forth in Section 3(a)) and Buyer has not waived the condition set forth in Section 8.1(a4(a)(iv) and (ii) Seller and Buyer are not able to reach an agreement on the terms of the Alternative Agreement despite the use of commercially reasonable best efforts and good faith in the negotiation thereof as required by Section 9(a)(iv), have been satisfied (orBuyer shall cooperate with Seller, at Seller’s request, to amend and modify this Agreement and the option of Parentother agreements contemplated hereby, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence such manner as reasonably requested by Seller to implement an alternative structure for the Company transfer of the Business to Buyer from that contemplated in this Agreement provided such amended Agreement shall contain the provisions (“Required Provisions”) set forth below in form reasonably satisfactory to Seller (or Alternative Seller, as defined below) and Buyer. Without limiting the generality of the foregoing, the alternative structure may take the form of (1) a sale of stock of Seller by the stockholders of Seller (the “338(h)(10) Alternative”), (2) a sale of stock of Seller (which, under this alternative, would elect to be treated as a qualified subchapter S subsidiary within the meaning of Code Section 1361 prior to the Closing will occurDate) by a new entity (“Alternative Seller”) treated as an S corporation for federal income tax purposes and formed for the purpose of holding the capital stock of Seller (the “QSSS Alternative”), or (3) a sale of the equity interests of a limited liability company (the “Successor”) that is a successor (by merger or conversion) of Seller that does not elect to be treated as a corporation for federal income Tax purposes (the “Successor Alternative”). The Required Provisions shall (A) provide for the purchase and sale of the shares of capital stock of Seller (or equity interests in the Successor, if applicable) in lieu of the Assets, (fB) require the Requested Changes (or filing of an election under Code Section 338(h)(10), and any corresponding election under state, local, and foreign Tax law with respect to the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations purchase of the Parent Parties under this Agreement, including payment shares of any consideration hereunder, (gcapital stock of Seller if the 338(h)(10) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REITAlternative is selected, and (hC) neither provide for the Company nor transfer of any Company Subsidiary Excluded Assets to the Seller’s assignee or assignees and the assumption by the Alternative Seller of any Excluded Liabilities. The alternative structure shall be required selected by Buyer and shall be reasonably acceptable to take the Seller, provided that the parties hereto agree the Successor Alternative shall be reasonably acceptable to Seller in the event that no change in any such action Tax law that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more have a material adverse than impact on the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences toto Seller or Alternative Seller (or their respective stockholders or equityholders, any stockholder as applicable) of such alternative occurs on or other equity interest holder of before the Company or Closing Date. Notwithstanding anything to the Partnership (contrary in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnershipthis Section 9(j), Buyer need not accept an alternative structure unless such holders are indemnified by alternative structure delivers substantially the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 same economic result (including reasonable fees asset step-up basis for tax purposes) and expenses of their Representatives). The Parent Parties, would not have a material adverse effect on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered Buyer or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE IIIits Affiliates.