Common use of Seller Parties’ Indemnification Clause in Contracts

Seller Parties’ Indemnification. Provided that the Closing occurs and subject to the other provisions of this Article 11, the Seller Parties shall jointly and severally release, defend, indemnify and hold harmless the Buyer Indemnitees from and against any and all Losses arising out of or relating to: (a) Any Seller Party’s breach of any covenant or agreement made by such Seller Party in this Agreement; (b) The breach of any of the Fundamental Representations or any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c); (c) The breach of any other (non-Fundamental Representations) representation or warranty made by the Seller Parties in Article 4 (other than Section 4.8(j)) or any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c); (d) The breach of any representation or warranty made by the Seller Parties in Section 4.8(j) or any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c); (e) Except for Covered Environmental Losses described on Schedule 11.1(c), any Covered Environmental Losses suffered or incurred by any Company Entity or Buyer; (f) Any liability to third parties for personal injury or death to the extent occurring before the Closing Date as a result of the ownership and/or operation of the Assets, or any obligations arising under the Material Agreements to the extent attributable to the period prior to the Closing Date; or (g) Any and all liabilities and obligations (whether vested, absolute, or contingent, known or unknown, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise) relating to the ownership and/or operation of the Retained Assets, whether before or after Closing. Notwithstanding the foregoing, no Seller Party shall be obligated to indemnify, defend or hold harmless the Buyer Indemnitees for Losses arising from any breach by any other Seller Party of any Individual Seller Party Representation.

Seller Parties’ Indemnification. Provided that Subject to each of the Closing occurs and subject to the other provisions of applicable limitations set forth in this Article 11V, each of the Seller Parties shall shall, jointly and severally release, defendseverally, indemnify the Buyer, Geeknet, each of their Affiliates and their respective directors, managers, Affiliates, members, officers, employees, stockholders, agents, attorneys, Representatives, heirs, successors and assigns (each, a “Buyer Indemnified Party” and collectively, the “Buyer Indemnified Parties”) and hold each of them harmless the Buyer Indemnitees from and against and pay on behalf of or reimburse such Buyer Indemnified Parties in respect of any loss, Liability, demand, claim, action, cause of action, cost, diminutions in value, damage, deficiency, fine or expense (including interest, penalties, assessments, judgments, awards, reasonable attorneys’, accountants’ and other professionals’ fees and expenses, court costs and all Losses reasonable amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, “Losses” and individually, a “Loss”) imposed on, sustained, incurred or suffered by, or asserted against, any Buyer Indemnified Party, whether in respect of third party claims, claims between the Parties, or otherwise, directly or indirectly relating to, arising out of or relating toin connection with: (ai) Any Seller Party’s breach of any covenant or agreement made by such Seller Party in this Agreement; (b) The breach of any of the Fundamental Representations or any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c); (c) The breach of any other (non-Fundamental Representations) representation or warranty made by the Seller Parties in Article 4 (other than Section 4.8(j)) or any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c); (d) The breach and all breaches of any representation or warranty made by any of the Seller Parties contained in Section 4.8(j) this Agreement or in any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c)Transaction Document; (eii) Except for Covered Environmental Losses described on Schedule 11.1(c)any and all breaches of any covenant or agreement made by, or to be performed by, any Covered Environmental Losses suffered or incurred by any Company Entity or BuyerSeller Party contained in this Agreement; (fiii) Any liability to third parties for personal injury or death to the extent occurring before all Excluded Assets; (iv) all Excluded Liabilities; (v) any inaccuracy in the Closing Date as a result of the ownership and/or operation of the Assets, or any obligations arising under the Material Agreements to the extent attributable to the period prior to the Closing DateCash Certificate; or (gvi) Any and all liabilities and obligations (whether vested, absolute, any cash compensation or contingent, known other amounts owed to any present or unknown, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise) relating former employees in respect of services rendered prior to the ownership and/or operation of date hereof and not paid pursuant to the Retained Assets, whether before or after Closing. Notwithstanding the foregoing, no Seller Party shall be obligated to indemnify, defend or hold harmless the Buyer Indemnitees for Losses arising from any breach by any other Seller Party of any Individual Seller Party RepresentationDeferred Wages Amount.

Seller Parties’ Indemnification. Provided that (a) From and after the Closing occurs and subject to the other provisions of this Article 11Date, the Seller Parties and Parent (the “Seller Indemnifying Parties”) shall jointly and severally releaseindemnify, defend, indemnify defend and hold harmless Purchaser, the Buyer Indemnitees Partnership, the New General Partner of the Partnership under the A&R LPA, the Manager, and their respective Affiliates, directors, officers, employees, equityholders, advisors, partners, members, agents and representatives and each of their respective successors and assigns (the “Purchaser Indemnified Parties”) from and against any and all Losses losses, Claims, Liabilities, Taxes, damages, costs or expenses (including costs of investigation, defense and attorney’s fees) (such amounts, in the aggregate, “Damages”) arising out of of, in connection with or relating to:related to the following (each, an “Indemnified Claim” and, collectively, the “Indemnified Claims”): (ai) Any (A) the representations and warranties contained in Section 4.01(a) or Section 4.01(b) being untrue or incorrect when made, (B) any breach by the Seller Party’s breach Indemnifying Parties or the Partnership of the covenants and agreements contained in Article V, or (C) any covenant Third Party Claims relating to this Agreement or agreement made by such Seller Party in this Agreementthe transactions contemplated hereby; (bii) The breach of any of the Fundamental Representations action, inaction, event or any representation with respect thereto circumstance, in the certificate delivered pursuant to Section 9.4(c); (c) The breach of any other (non-Fundamental Representations) representation each case arising, occurring or warranty made by the Seller Parties in Article 4 (other than Section 4.8(j)) or any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c); (d) The breach of any representation or warranty made by the Seller Parties in Section 4.8(j) or any representation with respect thereto in the certificate delivered pursuant to Section 9.4(c); (e) Except for Covered Environmental Losses described on Schedule 11.1(c), any Covered Environmental Losses suffered or incurred by any Company Entity or Buyer; (f) Any liability to third parties for personal injury or death to the extent occurring before the Closing Date as a result of the ownership and/or operation of the Assets, or any obligations arising under the Material Agreements to the extent attributable relating to the period prior to the Closing Date; or (g) Any and all liabilities and obligations (whether vested, absolute, or contingent, known or unknown, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, due or to become due, and whether contractual, statutory, or otherwise) relating to the ownership and/or Seller Parties’ operation of the Retained Assetsbusiness of the Partnership prior to the Closing or the Seller Parties’ ownership of the Partnership Interests prior to the Closing (in each case, whether before even if the related claim is asserted or maturing after Closingthe Closing Date); (iii) any and all Claims asserted against any Purchaser Indemnified Party by any direct or indirect creditor or equity holder of the Seller Indemnifying Parties, the Partnership or any of their Affiliates arising out of, in connection with, or related to the transactions contemplated by this Agreement and the Transaction Documents; provided, that the Seller Indemnifying Parties shall not indemnify any Purchaser Indemnified Party for any losses to the extent resulting from acts or omissions by such Purchaser Indemnified Party that are found by a final and non-appealable judgment of a court of competent jurisdiction to constitute gross negligence or willful misconduct by such Purchaser Indemnified Party; (iv) Indemnified Taxes; and (v) any Partnership Indebtedness, Partnership Expenses or White Eagle Liabilities. (b) Notwithstanding anything to the contrary contained herein, all amounts or distributions owing to the Seller Parties pursuant to the A&R LPA shall be subject to the terms of the Pledge Agreement, subject to set off by the Partnership to satisfy any Indemnified Claims or other indemnity obligations due from the Seller Parties to the Purchaser Indemnified Parties as and to the extent provided in the A&R LPA. (c) Parent shall cause Lamington Road or any other current or future holder of the Class B Partnership Units to execute pledge agreements substantially identical to the Pledge Agreement (and otherwise satisfactory to New General Partner) to secure the indemnity obligations contained in this Section 6.02. (d) Subject to compliance with the provisions of and the limitations set forth in this Article VI, if a Purchaser Indemnified Party obtains knowledge of any circumstance that such Purchaser Indemnified Party reasonably determines may give rise to a claim for Damages under Section 6.02(a), such Purchaser Indemnified Party shall give written notice thereof to the Seller Indemnifying Parties (each, a “Notice of Claim”). Notwithstanding Any Notice of Claim shall contain (i) a detailed description of the foregoingcircumstances giving rise to such Indemnified Claim and the basis on which such indemnification is sought, no (ii) anticipated Damages for which the Purchaser Indemnified Party claims it is entitled to indemnification pursuant to this Agreement, if calculable, (iii) in reasonable detail, the basis for such indemnity claim, and (iv) if such indemnity claim is as a result of a claim by a third party (a “Third Party Claim”), that such indemnity claim is as a result of a Third Party Claim and attaching copies of all relevant documentation with respect to such claim, including any summons, complaint or other pleading which may have been served, any written demand or any other document or instrument; provided, however, that the failure of the Purchaser Indemnified Party to give timely notice as provided herein shall not relieve the Seller Indemnifying Parties of their obligations under this Article VI, except to the extent the Seller Indemnifying Parties are actually prejudiced thereby. (e) With respect to any Third Party Claim, from and after receipt of a Notice of Claim pursuant to Section 6.02(d), the Seller Indemnifying Parties shall have the right, exercisable by written notice to Purchaser, to assume and conduct the defense of such Third Party Claim with counsel selected by the Seller Indemnifying Parties and reasonably acceptable to Purchaser, unless the Seller Indemnifying Parties would be unable to conduct the defense of such Third Party Claim in good faith due to a conflict of interest. In the event that the Seller Indemnifying Parties elect to assume the defense of a Third Party Claim as contemplated herein, the Purchaser Indemnified Party shall be obligated entitled to indemnifyparticipate in (but not control) the defense of such claim and to employ counsel of its choice for such purpose at its sole expense, defend unless Purchaser is advised by counsel that (i) a conflict of interest exists between Purchaser and counsel selected by Seller Indemnifying Parties or hold harmless (ii) Purchaser has defenses available to it that are not available to Seller Indemnifying Parties, in either of which cases such counsel shall be at the Buyer Indemnitees for Losses arising from any breach by any other expense of the Seller Party Indemnifying Parties. If the Seller Indemnifying Parties do not elect or are unable to assume the defense of any Individual Third Party Claim in accordance with this Section 6.02(e), the Purchaser Indemnified Party may defend such claim at the sole cost and expense of the Seller Indemnifying Parties (subject to the limitations set forth in this Article VI) and the Seller Indemnifying Parties may still participate in, but not control, the defense of such Third Party RepresentationClaim at the Seller Indemnifying Parties’ cost and expense. In the event that the Purchaser Indemnified Party assumes the defense of a Third Party Claim in accordance with this Section 6.02(e), the Purchaser Indemnified Party will not consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Seller Indemnifying Parties (such consent not to be unreasonably withheld, conditioned or delayed). In the event that the Seller Indemnifying Parties elect to assume the defense of a Third Party Claim in accordance with this Section 6.02(e), the Seller Indemnifying Parties shall not, without the prior written consent of the Purchaser Indemnified Party (such consent not to be unreasonably withheld, conditioned or delayed), consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, such claim, provided that the consent of the Purchaser Indemnified Party shall not be so required if the sole relief provided by such settlement, compromise, discharge or entry of any judgment consists of monetary obligations that are paid in full by the Seller Indemnifying Parties concurrently with the entry of such settlement, compromise, discharge or the entry into such judgment. In any such Third Party Claim, the party responsible for the defense of such claim hereunder shall, to the extent reasonably requested by the other Party, keep such other Parties informed as to the status of such claim, including all settlement negotiations and offers. If the Seller Indemnifying Parties do not assume the defense of such Third Party Claim in accordance with this Section 6.02(e), the Seller Indemnifying Parties shall make available to such Purchaser Indemnified Party and their attorneys and other representatives the Seller Indemnifying Parties’ representatives and all relevant books, records, documents and other materials reasonably required by such Purchaser Indemnified Party or its representatives and attorneys for use in contesting any Third Party Claim, and shall reasonably cooperate with such Purchaser Indemnified Party in the defense of all such claims. To the extent there is any conflict between the provisions of this Section 6.02(e) and the provisions of Section 8.13(c), the provisions of Section 8.13(c) shall control.