Common use of Indemnification by Contributor Clause in Contracts

Indemnification by Contributor. Subject to the other terms and conditions of this Article 10, from and after the Closing, Contributor shall indemnify and defend Acquiror and its Affiliates (including the Subject Entities) and their respective representatives, including directors, managers, officers, employees, consultants, financial advisors, counsel and accountants (collectively, the “Acquiror Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses actually incurred or sustained by, or imposed upon, the Acquiror Indemnitees as a result of: (a) any breach of any of the representations or warranties of Contributor, the Subject Entities, the Contributor Group, Retail Parent or their respective Affiliates contained in this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date; (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Contributor, the Retail Entities, the Contributor Group, Retail Parent or their respective Affiliates pursuant to this Agreement; (c) Contributor Taxes; (d) any liability arising under or with respect to any Employee Benefit Plan (i) as a result of the failure of such Employee Benefit Plan to be operated, maintained or administered in accordance with its terms and applicable Law; and/or (ii) as a result of a Controlled Group Liability arising prior to or as a result of actions prior to the date of this Agreement; (e) any liability arising with respect to a Registration Default (as such term is defined in each of the April 0000 XXX and the July 2015 RRA) under the April 0000 XXX or the July 2015 RRA, where such Registration Default occurs as a result of Contributor’s failure to provide the financial statements pursuant to Section 7.11; (f) any liability arising with respect to the assets or Subsidiaries of SUN R&M that are not included in or owned by SUN Retail as a result of the completion of the Division; and

Indemnification by Contributor. Subject (a) Contributor (the “Indemnifying Party”) agrees to the other terms and conditions of this Article 10fullest extent permitted by applicable law, from and after the Closing, Contributor shall to indemnify and defend Acquiror hold Contributee (and its Affiliates (including the Subject Entities) and their respective representativesofficers, including directors, managersemployees and agents) (each, officersan “Indemnitee”) harmless against all losses, employeesliabilities, consultantsobligations, financial advisorsdamages, counsel penalties, fines, forfeitures, legal fees, and accountants related costs and judgments and other costs, disbursements, fees and reasonable expenses imposed upon or incurred by or asserted against any Indemnitee (collectively, the “Acquiror IndemniteesLiabilities,” and each a “Liability”) againstor any Action arising out of or relating to, and shall hold each or resulting from (i) the breach by the Indemnifying Party of them harmless from and againstany representation, and shall pay and reimburse each of them forwarranty or covenant under this Agreement, (ii) the Indemnifying Party’s negligence, bad faith or willful misconduct or (iii) with respect to any Contributed Asset, any and all Losses actually incurred or sustained byPre-Closing Date Liability payable by Contributee; provided, or imposed uponhowever, the Acquiror Indemnitees as that there shall be no indemnification under this Section 4.4(a) for a result of: (a) any breach of any representation, warranty or covenant relating to any Contributed Asset set forth in Section 4.3 hereof so long as Contributor has complied with Section 4.4(b). (b) Notwithstanding Section 4.4(a), in the event of the representations a breach of any representation, warranty or warranties of Contributor, the Subject Entities, the Contributor Group, Retail Parent or their respective Affiliates contained covenant set forth in this Agreement, Section 4.3 hereof relating to any Contributed Asset as of the date upon which such representation or warranty was is made, the Indemnifying Party shall promptly notify the Contributee, who shall promptly notify the Administrative Agent, and pay, to the fullest extent permitted by applicable law, to Contributee an amount equal to the fair market value of such Contributed Asset as of the date of its contribution. Upon payment by the Indemnifying Party of such amount to Contributee with respect to any asset in accordance with the preceding sentence and amounts owing at such time, if any, under Section 4.4(a), Contributee shall, to the extent permitted by applicable law, assign or cause to be assigned such asset to Contributor and Contributor shall accept the assignment of such asset. Contributee shall, in such event, make or cause to be made all assignments of such asset necessary to effect such assignment. Any such assignment made or as if such caused to be made by Contributee shall be without recourse to, or representation or warranty was made on by, Contributee, except that the ownership of such asset shall be conveyed free and as of the Closing Date; (b) any breach or non-fulfillment clear of any covenant, agreement Liens created by the Credit Agreement. All costs and expenses associated with the foregoing shall be paid by the Indemnifying Party on demand or obligation to be performed at the direction of Contributee. Any funds received by Contributor, the Retail Entities, the Contributor Group, Retail Parent or their respective Affiliates Contributee pursuant to this Section 4.4(b) shall be applied in accordance with the Credit Agreement;. (c) Contributor Taxes; (d) Any Indemnitee that proposes to assert the right to be indemnified under this Section 4.4 will promptly, after receipt of notice of the commencement of any liability arising Action against such party in respect of which a claim is to be made against the Indemnifying Party under such sections, notify the Indemnifying Party of the commencement of such action, suit or proceeding, enclosing a copy of all papers served. In the event that any action, suit or proceeding shall be brought against any Indemnitee, such Indemnitee shall notify the Indemnifying Party of the commencement thereof and the Indemnifying Party shall be entitled to participate in, and to the extent that it shall wish, to assume the defense thereof, with its counsel reasonably satisfactory to such Indemnitee; provided that the Indemnifying Party shall not enter into any settlement with respect to any Employee Benefit Plan (i) as a result of the failure Action unless such settlement includes an unconditional release of such Employee Benefit Plan Indemnitee from all liability on claims that are the subject matter of such settlement and fully discharges with prejudice against the plaintiff the claim or action against such Indemnitee and does not include a statement as to, or an admission of, fault, culpability or failure to be operatedact by or on behalf of such Indemnitee; and provided, maintained or administered further, that the Indemnitee shall have the right to employ its own counsel in any such action the defense of which is assumed by the Indemnifying Party in accordance with its terms and applicable Law; and/or (ii) as a result this Section 4.4. No Indemnitee shall settle or compromise any claim covered pursuant to this Section 4.4 without the prior written consent of a Controlled Group Liability arising prior to the Indemnifying Party, which shall not be unreasonably withheld or as a result of actions prior to the date delayed. The provisions of this Agreement; (e) any liability arising with respect to a Registration Default (as such term is defined in each Section 4.4 shall survive the termination of the April 0000 XXX and the July 2015 RRA) under the April 0000 XXX this Agreement or the July 2015 RRA, where such Registration Default occurs as a result earlier resignation or removal of Contributor’s failure to provide the financial statements pursuant to Section 7.11; (f) any liability arising with respect to the assets or Subsidiaries of SUN R&M that are not included in or owned by SUN Retail as a result of the completion of the Division; andparty hereto.

Indemnification by Contributor. Subject Contributor agrees to the other terms and conditions of this Article 10, from and after the Closing, Contributor shall indemnify and defend Acquiror and its Affiliates (including the Subject Entities) and their respective representativesshareholders, including directors, managers, officers, employees, consultantsagents, financial advisors, counsel partners and accountants (collectively, the “Acquiror Indemnitees”) againstaffiliates in respect of, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses actually losses, liabilities (including punitive or exemplary damages, fines or penalties and interest thereon), expenses (including fees and disbursements of counsel and expenses of investigation and defense), claims or other obligations of any value whatsoever (collectively, "Losses") suffered, incurred or sustained byby any of them or to which any of them becomes subject, resulting from, arising out of or imposed upon, the Acquiror Indemnitees as a result of: relating to (ai) any breach of or inaccuracy in any representation or warranty, or nonfulfillment of or failure to perform or breach of any covenant or agreement on the representations or warranties part of Contributor, the Subject Entities, the Contributor Group, Retail Parent or their respective Affiliates contained in this Agreement, or (ii) any default or dispute set forth in Schedule 8A(xiii) attached to this Agreement. If Acquiror does not elect to terminate this Agreement at the Closing with respect to the Properties or at the Additional Closing with respect to the Additional Property, as the case may be, Acquiror shall be deemed to have waived the breach or inaccuracy of the date such any representation or warranty was made or as if contained in Section 8A, other than subsection (xiv) of Section 8A (unless such representation or warranty was made on and as breach of the Closing Date; subsection (bxiv) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Contributor, the Retail Entities, the Contributor Group, Retail Parent or their respective Affiliates pursuant to this Agreement; (c) Contributor Taxes; (d) any liability arising under or with respect to any Employee Benefit Plan (i) as a result Section 8A arose out of the failure of such Employee Benefit Plan to be operated, maintained or administered in accordance with its terms and applicable Law; and/or (ii) as a result of a Controlled Group Liability arising prior to or as a result of actions prior an event which occurred subsequent to the date of this Agreement; (e) any liability arising with respect to a Registration Default (as such term is defined in each of Agreement and was beyond the April 0000 XXX and the July 2015 RRA) under the April 0000 XXX or the July 2015 RRA, where such Registration Default occurs as a result control of Contributor’s failure ), which was disclosed on the certificate delivered by Contributor to provide the financial statements Acquiror pursuant to Section 7.11; 6C(i)(l), provided that (fa) any liability arising with respect to Contributor had no actual knowledge of such breach or inaccuracy on the assets date of this Agreement and (b) such inaccuracy or Subsidiaries of SUN R&M that are breach was not included in or owned by SUN Retail as a the result of the completion an intentional act or omission of the Division; andContributor.

Indemnification by Contributor. Subject In addition to all rights and remedies available to Contributee at law, in equity, or with respect to that certain Stockholder Rights Agreement of even date herewith, by and between Contributor, Contributee and the other terms and conditions of this Article 10, from and after investors listed on the Closingsignature pages thereto (the "RIGHTS AGREEMENT"), Contributor shall agrees to indemnify and defend Acquiror and Contributee, its Affiliates (including the Subject Entities) and their respective officers, directors, agents, representatives, including directorssuccessors, managers, officers, employees, consultants, financial advisors, counsel permitted assigns and accountants affiliates (other than Contributor) (collectively, the “Acquiror Indemnitees”"CONTRIBUTEE PARTIES") against, and shall hold each of them harmless from against and againstpay on behalf of or reimburse such Contributee Parties in respect of any loss (including, without limitation, diminution in value and shall pay consequential damages), liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of third party infringement claims (including, without limitation, interest, penalties, reasonable attorneys' fees and reimburse each of them for, any expenses and all Losses actually incurred amounts paid in investigation, defense or sustained bysettlement of any of the foregoing) (collectively, "LOSSES") which any such Contributee Party may suffer, sustain or imposed uponbecome subject to, the Acquiror Indemnitees as a result of: (a) any , in connection with, relating or incidental to or by virtue of the breach of any representation, covenant or agreement of the representations or warranties of Contributor, the Subject Entities, the Contributor Group, Retail Parent or their respective Affiliates contained in this Agreement; provided that the sole remedy and the extent of Contributor's obligations relating to any third party infringement claims, as arising from acts of or on behalf of Contributor relating to the Technology transfer by Contributor, shall be the return to Contributee of no more than 4,000,000 shares of Series A Preferred (or any shares of Contributee's Common Stock issued upon conversion of the date such representation or warranty was made or as if such representation or warranty was made on and as Series A Preferred). For purposes of determining the Closing Date; (b) any breach or non-fulfillment number of any covenant, agreement or obligation shares of Series A Preferred to be performed returned by Contributor, the Retail Entities, value of the Contributor Group, Retail Parent or their respective Affiliates pursuant to this Agreement; (c) Contributor Taxes; (d) any liability arising under or with respect to any Employee Benefit Plan shares of Series A Preferred shall be determined as follows (i) as a result prior to Contributee's initial public offering, the value of the failure Series A Preferred (or Contributee's Common Stock issued upon conversion of such Employee Benefit Plan the Series A Preferred) shall be deemed equal to be operated, maintained the greater of $2.00 per share or administered the highest price per share paid by a third party in accordance with its terms a bona fide third party transaction involving the Series A Preferred or Contributee's Common Stock and applicable Law; and/or (ii) as a result of a Controlled Group Liability arising prior subsequent to or as a result of actions prior to Contributee's initial public offering, the date of this Agreement; (e) any liability arising with respect to a Registration Default (as such term is defined in each fair market value of the April 0000 XXX and the July 2015 RRA) under the April 0000 XXX or the July 2015 RRA, where such Registration Default occurs as a result of Contributor’s failure to provide the financial statements pursuant to Section 7.11; (f) any liability arising with respect to the assets or Subsidiaries of SUN R&M that are not included in or owned by SUN Retail as a result of the completion of the Division; andContributee's Common Stock.

Indemnification by Contributor. Subject (a) Contributor (the “Indemnifying Party”) agrees to the other terms and conditions of this Article 10fullest extent permitted by applicable law, from and after the Closing, Contributor shall to indemnify and defend Acquiror hold Contributee (and its Affiliates (including the Subject Entities) and their respective representativesofficers, including directors, managersemployees and agents) (each, officersan “Indemnitee”) harmless against all losses, employeesliabilities, consultantsobligations, financial advisorsdamages, counsel penalties, fines, forfeitures, legal fees, and accountants related costs and judgments and other costs, disbursements, fees and reasonable expenses imposed upon or incurred by or asserted against any Indemnitee (collectively, the “Acquiror IndemniteesLiabilities,” and each a “Liability”) againstor any Action arising out of or relating to, and shall hold each or resulting from (i) the breach by the Indemnifying Party of them harmless from and againstany representation, and shall pay and reimburse each of them forwarranty or covenant under this Agreement, (ii) the Indemnifying Party’s negligence, bad faith or willful misconduct or (iii) with respect to any Contributed Asset, any and all Losses actually incurred or sustained byPre-Closing Date Liability payable by Contributee; provided, or imposed uponhowever, the Acquiror Indemnitees as that there shall be no indemnification under this Section 4.4(a) for a result of: (a) any breach of any representation, warranty or covenant relating to any Contributed Asset set forth in Section 4.3 hereof so long as Contributor has complied with Section 4.4(b). (b) Notwithstanding Section 4.4(a), in the event of the representations a breach of any representation, warranty or warranties of Contributor, the Subject Entities, the Contributor Group, Retail Parent or their respective Affiliates contained covenant set forth in this Agreement, Section 4.3 hereof relating to any Contributed Asset as of the date upon which such representation or warranty was is made, the Indemnifying Party shall promptly notify the Contributee, who shall promptly notify the Lender, and pay, to the fullest extent permitted by applicable law, to Contributee an amount equal to the fair market value of such Contributed Asset as of the date of its contribution. Upon payment by the Indemnifying Party of such amount to Contributee with respect to any asset in accordance with the preceding sentence and amounts owing at such time, if any, under Section 4.4(a), Contributee shall, to the extent permitted by applicable law, assign or cause to be assigned such asset to Contributor and Contributor shall accept the assignment of such asset. Contributee shall, in such event, make or cause to be made all assignments of such asset necessary to effect such assignment. Any such assignment made or as if such caused to be made by Contributee shall be without recourse to, or representation or warranty was made on by, Contributee, except that the ownership of such asset shall be conveyed free and as of the Closing Date; (b) any breach or non-fulfillment clear of any covenant, agreement Liens created by the Credit Agreement. All costs and expenses associated with the foregoing shall be paid by the Indemnifying Party on demand or obligation to be performed at the direction of Contributee. Any funds received by Contributor, the Retail Entities, the Contributor Group, Retail Parent or their respective Affiliates Contributee pursuant to this Section 4.4(b) shall be applied in accordance with the Credit Agreement;. (c) Contributor Taxes; (d) Any Indemnitee that proposes to assert the right to be indemnified under this Section 4.4 will promptly, after receipt of notice of the commencement of any liability arising Action against such party in respect of which a claim is to be made against the Indemnifying Party under such sections, notify the Indemnifying Party of the commencement of such action, suit or proceeding, enclosing a copy of all papers served. In the event that any action, suit or proceeding shall be brought against any Indemnitee, such Indemnitee shall notify the Indemnifying Party of the commencement thereof and the Indemnifying Party shall be entitled to participate in, and to the extent that it shall wish, to assume the defense thereof, with its counsel reasonably satisfactory to such Indemnitee; provided that the Indemnifying Party shall not enter into any settlement with respect to any Employee Benefit Plan (i) as a result of the failure Action unless such settlement includes an unconditional release of such Employee Benefit Plan Indemnitee from all liability on claims that are the subject matter of such settlement and fully discharges with prejudice against the plaintiff the claim or action against such Indemnitee and does not include a statement as to, or an admission of, fault, culpability or failure to be operatedact by or on behalf of such Indemnitee; and provided, maintained or administered further, that the Indemnitee shall have the right to employ its own counsel in any such action the defense of which is assumed by the Indemnifying Party in accordance with its terms and applicable Law; and/or (ii) as a result this Section 4.4. No Indemnitee shall settle or compromise any claim covered pursuant to this Section 4.4 without the prior written consent of a Controlled Group Liability arising prior to the Indemnifying Party, which shall not be unreasonably withheld or as a result of actions prior to the date delayed. The provisions of this Agreement; (e) any liability arising with respect to a Registration Default (as such term is defined in each Section 4.4 shall survive the termination of the April 0000 XXX and the July 2015 RRA) under the April 0000 XXX this Agreement or the July 2015 RRA, where such Registration Default occurs as a result earlier resignation or removal of Contributor’s failure to provide the financial statements pursuant to Section 7.11; (f) any liability arising with respect to the assets or Subsidiaries of SUN R&M that are not included in or owned by SUN Retail as a result of the completion of the Division; andparty hereto.