Common use of Certain Limits on Indemnification Clause in Contracts

Certain Limits on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) will be limited to an aggregate amount equal to Seven Million Five Hundred Thousand Dollars ($7,500,000) (the “R&W Cap”), provided, that the foregoing clause will not apply to Losses arising out of or relating to the breach of any Fundamental Representation of Seller or the Company, and (ii) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) in respect of Fundamental Representations will be limited to an aggregate amount equal to Twenty Million Dollars ($20,000,000) (the “Aggregate Cap”). (b) Seller and Seller Parent will have no obligation to indemnify the Buyer Indemnified Parties against Losses under Section 8.2(a) unless the aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) is greater than (i) in the case of any breach of any Fundamental Representation of Seller or the Company, Five Hundred Thousand Dollars ($500,000) (the “Fundamental Basket”), in which case the Buyer Indemnified Parties will, subject to Section 8.5(a), be entitled to indemnification for Losses from the first dollar of such Losses, and (ii) in the case of any breach of any representation or warranty other than the Fundamental Representations of Seller or the Company, Five Hundred Thousand Dollars ($500,000) (the “General Basket” and together with the Fundamental Basket, each a “Basket”), in which case the Buyer Indemnified Parties will, subject to Section 8.5(a), be entitled to indemnification for Losses in excess of the General Basket. (c) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Seller Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.3(a) will be limited to an aggregate amount equal to the R&W Cap, provided, that the foregoing clause will not apply to Losses arising out of or relating to the breach of any Fundamental Representation of Buyer, and (ii) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Seller Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.3(a) in respect of Fundamental Representations will be limited to an aggregate amount equal to the Aggregate Cap. (d) Buyer and Buyer Parent will have no obligation to indemnify the Seller Indemnified Parties against Losses under Section 8.3(a) unless the aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Seller Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.3(a) is greater than (i) in the case of any breach of any Fundamental Representation of Buyer, the Fundamental Basket, in which case the Seller Indemnified Parties will, subject to Section 8.5(c), be entitled to indemnification for Losses from the first dollar of such Losses, and (ii) in the case of any breach of any representation or warranty other than the Fundamental Representations of Buyer, the General Basket, in which case the Seller Indemnified Parties will, subject to Section 8.5(c), be entitled to indemnification for Losses in excess of the General Basket.

Certain Limits on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreementcontrary, (i) the maximum Parent Indemnified Parties shall not be entitled to indemnification for Losses under Section 9.2(a)(i) unless the aggregate amount of all such Losses (except for Losses arising out of Fraud) which may such indemnifying party would, but for this Section 9.5(a), be recovered by the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) will be limited to liable thereunder exceeds on an aggregate amount equal to Seven Million Five Hundred Thousand Dollars (basis $7,500,000) (the “R&W Cap”)8,893,750, provided, that the foregoing clause will not apply to Losses arising out of or relating and then only to the breach extent of any Fundamental Representation of Seller or the Company, such excess; and (ii) in no event shall the maximum aggregate amount of Losses all payments made by or on behalf of the Security Holders in connection with indemnification claims and other obligations under this Article IX (except for Losses arising out of Fraudwhich shall include all payments made from the Retention Escrow Account) which may be recovered by exceed the Buyer Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.2(a) in respect of Fundamental Representations will be limited to an aggregate amount equal to Twenty Million Dollars ($20,000,000) Retention Escrow Amount (the “Aggregate Parent Cap”). (b) Notwithstanding anything to the contrary, (i) the Seller and Seller Parent will have no obligation to indemnify the Buyer Indemnified Parties against shall not be entitled to indemnification for Losses under Section 8.2(a9.3(a)(i) unless the aggregate amount of all such Losses (except for Losses arising out of Fraud) which may be recovered by the Buyer Indemnified Parties pursuant to any and all claims such indemnifying party would, but for indemnification made under this Section 8.2(a) is greater than (i) in the case of any breach of any Fundamental Representation of Seller or the Company, Five Hundred Thousand Dollars ($500,000) (the “Fundamental Basket”), in which case the Buyer Indemnified Parties will, subject to Section 8.5(a9.5(b), be entitled liable thereunder exceeds on an aggregate basis $7,893,750, and then only to indemnification for Losses from the first dollar extent of such Losses, excess; and (ii) in no event shall the aggregate amount of all payments made by or on behalf of the Parent Parties in connection with indemnification claims and other obligations under this Article IX exceed on an aggregate basis the aggregate value of the SCOLP Units issued to Electing Security Holders (the “Seller Cap”). (c) The limitations set forth in Section 9.5(a) and Section 9.5(b) shall not apply in respect of any claims for indemnification with respect to Fraud; provided, that in no event shall the Parent Indemnified Parties or the Seller Indemnified Parties be entitled to indemnification pursuant to Section 9.2 for any amounts that, in the aggregate, exceed the Base Purchase Price. (d) Notwithstanding anything to the contrary, the Parent Indemnified Parties and the Seller Indemnified Parties shall be deemed not to have suffered any Loss (whether in contract, tort or otherwise) to the extent that such Loss (i) is accrued, provided or reserved for, or otherwise reflected or taken into account in, the Financial Statements, or (ii) arises from any item or matter that is included or otherwise taken into account in, or was raised or should have been raised as part of the settlement of, Net Working Capital or the other items of the Closing Statement. (e) Any Loss under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement. (f) With respect to the indemnification obligations pursuant to Section 9.2(a)(i), any payment to be made to the Parent Indemnified Parties with respect to Losses pursuant to Section 9.2(a)(i) (other than claims for Fraud) shall be made as follows, in each case, subject to the limitations contained in this Article IX: (i) first, from the Retention Escrow Account pursuant to the terms of the Retention Escrow Agreement; and (ii) second, from the R&W Policy up to the policy limit (or such lesser amount obtained under the R&W Policy in connection with a settlement and release negotiated with the insurer of the R&W Policy). (g) The Parent Parties acknowledge and agree that, except as expressly set forth in Section 9.5(a), Section 9.5(c) and Section 9.5(f), other than in the case of Fraud, the R&W Policy shall be the sole and exclusive remedy of the Parent Indemnified Parties for any and all Losses with respect to the breach of any representation or warranty other than contained herein or in any certificate delivered pursuant to this Agreement that are sustained or incurred by any of the Fundamental Representations of Seller or the Company, Five Hundred Thousand Dollars ($500,000) (the “General Basket” and together with the Fundamental Basket, each a “Basket”), in which case the Buyer Parent Indemnified Parties willand, subject to except as expressly set forth in Section 8.5(a), be entitled to indemnification for Losses in excess of the General Basket. (c9.5(a) Notwithstanding anything to the contrary contained in this Agreement, (iand Section 9.5(c) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Seller Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.3(a) will be limited to an aggregate amount equal to the R&W Cap, provided, that the foregoing clause will not apply to Losses arising out of or relating to the breach of any Fundamental Representation of Buyer, and (ii) the maximum aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Seller Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.3(a) in respect of Fundamental Representations will be limited to an aggregate amount equal to the Aggregate Cap. (d) Buyer and Buyer Parent will have no obligation to indemnify the Seller Indemnified Parties against Losses under Section 8.3(a) unless the aggregate amount of Losses (except for Losses arising out of Fraud) which may be recovered by the Seller Indemnified Parties pursuant to any and all claims for indemnification made under Section 8.3(a) is greater than (i) in the case of any breach of any Fundamental Representation of BuyerFraud, the Fundamental Basket, in which case the Seller Security Holders shall have no liability to any Parent Indemnified Parties will, subject Party for any Losses with respect to Section 8.5(c), be entitled to indemnification for Losses from the first dollar of such Losses, and (ii) in the case of any breach breaches of any representation or warranty hereunder pursuant to Section 9.2(a)(i) (provided, that, in the case of Fraud, any such Parent Indemnified Party shall first seek recovery, if the Losses with respect to breaches of any representation or warranty hereunder pursuant to Section 9.2(a)(i) are recoverable under the R&W Policy, under the R&W Policy). (h) Solely for purposes of determining under this Article IX whether there is an indemnifiable Loss under Section 9.2(a)(i) or Section 9.3(a)(i), as applicable, including for purposes of determining the amount of such Losses, all qualifications or exceptions therein referring to the terms “material”, “materiality”, “in all material respects” or “Material Adverse Effect,” as well as the qualification of “to the Company’s Knowledge” in the lead-in to Article III (but not the references to “Company’s Knowledge” in the specific representations and warranties in Article III), shall be disregarded (except with respect to the term “Material Adverse Effect” in clause (ii) of Section 3.7, the term “materially delay” in Section 3.1(a) and Section 3.1(b), the term “Material Contracts” and the term “Material Tenant Leases”). For the avoidance of doubt, such qualifications and exceptions shall not be disregarded for any purpose other than as set forth in this Section 9.5(h). (i) Nothing in this Article IX is intended to affect or limit the Fundamental Representations ability of Buyer, Parent to recover under the General Basket, in which case the Seller Indemnified Parties will, subject to Section 8.5(c), be entitled to indemnification R&W Policy for Losses in excess of the General Basketany matters covered thereunder.