Common use of Indemnification by Spincos Clause in Contracts

Indemnification by Spincos. Except as provided in Sections 6.04 and 6.05 and subject to Section 13.01, each Spinco shall, and shall cause the other members of its Corresponding Group to, fully indemnify, defend and hold harmless each other Separate-co, each other member of each other Group and each of their respective current and former directors, officers and employees, and each of the heirs, executors, trustees, administrators, successors and assigns of any of the foregoing (collectively, such Spinco’s “Corresponding Other Separate-cos Indemnified Parties”), from and against any and all Liabilities of its Corresponding Other Separate-cos Indemnified Parties relating to, arising out of or resulting from any of the following items (without duplication): (a) with respect to such Spinco, the Corresponding Business, any Corresponding Entity, any Corresponding Asset, any Corresponding Liability or, subject to Article III, any Deferred Spun Asset; (b) any breach of, or failure to perform or comply with, any covenant, undertaking or obligation of, this Agreement or any of the Ancillary Agreements, by such Spinco or any other member of it Corresponding Group, subject to any limitation on liability set forth in any Ancillary Agreement for any such breach or failure to perform or comply with any covenant, undertaking or obligation under such Ancillary Agreement; and (c) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent relating to such Spinco’s Corresponding Group or Corresponding Business contained in any Registration Statement or any other filings made with the SEC in connection with the Separation and the Distributions.

Indemnification by Spincos. Except as provided in Sections 6.04 From and 6.05 after the Distribution Date of a Spinco, such Spinco (an “Indemnifying Spinco”) and subject to Section 13.01, each member of its Spinco shall, Group shall be responsible for and shall cause the other members of its Corresponding Group to, fully jointly and severally indemnify, defend and hold harmless each other Separate-co, each other member Party and the members of each other Party’s respective Group and each of their respective current Representatives and former directors, officers Affiliates (and employees, and each of the heirs, executors, trustees, administrators, successors and assigns of any of the foregoing (collectively, such Spinco’s “Corresponding Other Separate-cos Indemnified Parties”), them) from and against (i) all Tax Liabilities (including Specified Restructuring Taxes), Spin-Off Tax Liabilities and Tax-Related Losses that the Indemnifying Spinco or any and all Liabilities member of its Corresponding Other SeparateSpinco Group is required to pay under Section 2 or is responsible for under Section 4 (including, without limitation, any Tax Liabilities or Spin-cos Indemnified Parties relating to, Off Tax Liabilities or Tax-Related Losses arising out of or resulting from any of the following items (without duplication): (a) with respect to such Spincoa Permitted Transaction for which the Indemnifying Spinco is liable pursuant to Section 4(e)(i)); (ii) all Taxes (including Specified Restructuring Income Taxes), the Corresponding Business, Spin-Off Tax Liabilities and other Tax-Related Losses incurred by any Corresponding Entity, member of any Corresponding Asset, any Corresponding Liability or, subject to Article III, any Deferred Spun Asset; (b) any breach of, or failure to perform or comply with, any covenant, undertaking or obligation of, this Agreement or any Group by reason of the Ancillary Agreements, breach by such the Indemnifying Spinco or any other member of it Corresponding Group, subject to its Spinco Group of any limitation on liability set forth in any Ancillary Agreement for any such breach of its representations or failure to perform covenants hereunder or comply with any covenant, undertaking or obligation under such Ancillary Agreement; and (c) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent relating to such Spinco’s Corresponding Group or Corresponding Business contained in any Registration Statement or any other filings made with the SEC in connection with the Separation IRS Ruling (if applicable) and/or the Tax Opinions) and, in each case, any related costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses); provided, that (x) in the Distributionsevent that an IRS Ruling is not obtained with respect to the Distribution of a Spinco, such Spinco shall not be deemed to make any representations regarding such Distribution in the IRS Ruling Documents, and (y) no Spinco makes any representations regarding any facts that, if untrue, would result in Specified Restructuring Income Taxes (other than representations regarding (1) whether such Spinco is engaged in the active conduct of a trade or business within the meaning of Section 355(b) of the Code, (2) such Spinco’s conduct after the Distribution, and (3) the matters set forth in Section 4(a)(iii) hereof). If the indemnification obligation of a Spinco or any member of its Spinco Group under this Section 3(b) (or any adjustment for which such Spinco is responsible pursuant to this Section 3(b)) results in a Tax Benefit to another Party or any member of such other Party’s Group, which would not, but for the Tax which is the subject of the indemnification obligation (or the adjustment giving rise to such indemnification obligation), be allowable, then each Party receiving such Tax Benefit shall pay the Indemnifying Spinco the amount by which such Tax Benefit actually reduces, in cash, the amount of Tax that the Party or any member of its Group would have been required to pay and bear (or increases, in cash, the amount of a Refund to which the Party or any member of its Group would have been entitled) but for such indemnification (or adjustment giving rise to such indemnification obligation). Each Party receiving such Tax Benefit shall pay the Indemnifying Spinco for such Tax Benefit no later than five days after such Tax Benefit is Actually Realized.

Indemnification by Spincos. Except as provided in Sections 6.04 From and 6.05 after the Redemption Date, CarMax shall indemnify and subject to Section 13.01, each Spinco shallhold harmless, and shall cause the other members of its Corresponding Group to, fully indemnify, defend Spincos to indemnify and hold harmless each other Separate-coharmless, each other member of each other Group Circuit City Stores and each of the Circuit City Subsidiaries and their respective current and former officers, directors, officers agents, Affiliates, record and employeesbeneficial security holders (including, without limitation, trustees and each beneficiaries of trusts holding such securities), advisors and representatives (the heirs, executors, trustees, administrators, “Circuit City Indemnified Persons”) and their respective successors and assigns of any of the foregoing (collectively, such Spinco’s “Corresponding Other Separate-cos Indemnified Parties”), from and against any and all Liabilities of its Corresponding Other Separate-cos claims, debts, obligations, damages, losses, liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), fines, fees, penalties, deficiencies, costs and expenses (including, without limitation, amounts paid in settlement and any reasonable legal, expert, accounting or other expenses for investigating or defending any actions or threatened actions) (collectively, “Losses”) incurred by the Circuit City Indemnified Parties Persons arising out of, relating to, arising out of due to, or resulting from any of the following items (without duplication):in connection with, directly or indirectly: (a) with respect to such Spinco, the Corresponding Business, any Corresponding Entity, any Corresponding Asset, any Corresponding Liability or, subject to Article III, any Deferred Spun Asset; (b) any breach of, or failure to perform or comply with, of any covenant, undertaking agreement or obligation of, of any Spinco contained in this Agreement or any of the Ancillary AgreementsContracts or in the Deeds of Assignment or the Instruments of Assumption; (b) any and all liabilities arising out of or relating to the Separation, by such Spinco or any the Redemption, the Distribution and/or the Proxy/Prospectus (other member of it Corresponding Groupthan the Circuit City Stores Information) (together, subject the “Transaction Liabilities”) (in addition to any limitation on liability set forth indemnification provided for in any Ancillary Agreement for any such breach Section 4.1(a) above, and to the extent not arising out of or relating to a Circuit City Indemnified Person’s failure to perform its obligations arising out of or comply with any covenant, undertaking or obligation under such Ancillary Agreementrelating thereto); andor (c) any untrue statement failure to perform or alleged untrue statement satisfy any of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to CarMax Group Liabilities by any of the extent relating to such Spinco’s Corresponding Group or Corresponding Business contained in any Registration Statement or any other filings made with the SEC in connection with the Separation and the DistributionsSpincos.