Common use of Indemnification by Purchasers Clause in Contracts

Indemnification by Purchasers. During the Survival Period and subject to Section 18.14 below, each Purchaser shall and hereby does indemnify and hold the Company harmless from and against and in respect of any and all actual loss, damage and expense incurred by the Company resulting from, arising out of, attributable to, or in any manner connected with: (a) Any misrepresentation or breach of any representation or warranty made by the Purchaser pursuant to this Agreement or failure to fulfill any covenant or agreement on the part of the Purchaser contained in this Agreement or in any certificate or other document delivered, or to be delivered, by the Purchaser to the Company in connection with this Agreement; and (b) Any and all actions, suits, proceedings, demands, assessments or judgments, costs and expenses (including reasonable legal and accounting fees and investigation costs) incident to the foregoing and the enforcement thereof. If any event shall occur or any circumstance arise which might give rise to a claim in respect of any matter against which the Purchaser has indemnified the Company hereunder, the Company promptly shall give notice thereof to the Purchaser. Such notice shall be given within fifteen (15) days after said claim shall have been presented to the Company. Unless the parties otherwise agree in writing, the Purchaser shall defend against all such third-party claims or otherwise satisfy said claims, at its sole cost and expense, through counsel and accountants designated by it, which approval shall not be delayed or withheld unreasonably. The Company shall have the right to participate with the Purchaser in the defense of any such matter. The Purchaser shall not be liable for any settlement of a claim by the Company without the Purchaser’s consent. Notwithstanding anything to the contrary herein, the Company shall not lay claim and the Purchaser shall not be liable under this Section for any action, proceeding or investigation in respect of which indemnity may be sought as provided above, amounting to less than $50,000 in the aggregate, provided that such persons shall be liable from the first dollar for any claim or claims exceeding such amount.

Indemnification by Purchasers. During In consideration of the Survival Period Company’s execution and subject delivery of this Agreement and sale of the Securities hereunder and in addition to Section 18.14 belowall of a Purchaser’s other obligations under the Transaction Documents to which it is a party, each Purchaser shall severally, and hereby does not jointly, indemnify and hold harmless the Company, each of its directors, officers, stockholders, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Company harmless (within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act), and the respective directors, officers, shareholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, a “Company Party”), from and against and all Damages in respect of any and all actual loss, damage and expense incurred an amount not to exceed the aggregate purchase price paid by the Company resulting from, arising out of, attributable to, or in any manner connected with: (a) Any misrepresentation or breach of any representation or warranty made by the such Purchaser for Securities pursuant to this Agreement that such Company Party may suffer or failure incur as a result of or relating to fulfill any covenant or agreement on the part breach of any of the representations, warranties, covenants or agreements made by such Purchaser in this Agreement or in the other Transaction Documents to which it is a party, other than claims for indemnification within the scope of Section 5 of the Registration Rights Agreement; provided, however, that the indemnity provided by this Section 9.2 and in the Registration Rights Agreement shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from a breach of any of the Company’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. To the extent that the foregoing undertakings by such Purchaser set forth in this Section 9.2 may be unenforceable for any certificate or other document deliveredreason, or to be delivered, by such Purchaser shall make the Purchaser maximum contribution to the Company in connection with this Agreement; and (b) Any payment and all actions, suits, proceedings, demands, assessments or judgments, costs and expenses (including reasonable legal and accounting fees and investigation costs) incident to satisfaction of each of the foregoing and the enforcement thereof. If any event shall occur or any circumstance arise Damages which might give rise to a claim in respect of any matter against which the Purchaser has indemnified the Company hereunder, the Company promptly shall give notice thereof to the Purchaser. Such notice shall be given within fifteen (15) days after said claim shall have been presented to the Company. Unless the parties otherwise agree in writing, the Purchaser shall defend against all such third-party claims or otherwise satisfy said claims, at its sole cost and expense, through counsel and accountants designated by it, which approval shall not be delayed or withheld unreasonably. The Company shall have the right to participate with the Purchaser in the defense of any such matter. The Purchaser shall not be liable for any settlement of a claim by the Company without the Purchaser’s consent. Notwithstanding anything to the contrary herein, the Company shall not lay claim and the Purchaser shall not be liable is permissible under this Section for any action, proceeding or investigation in respect of which indemnity may be sought as provided above, amounting to less than $50,000 in the aggregate, provided that such persons shall be liable from the first dollar for any claim or claims exceeding such amountapplicable law.

Indemnification by Purchasers. During the Survival Period and subject to Section 18.14 below(a) Seller Claims Against CPS. CPS will indemnify, each Purchaser shall and hereby does indemnify defend and hold harmless Seller, its parents and Affiliates and each of their respective officers, directors, employees, attorneys, agents and successors and assigns and each Person included in the Company harmless Seller Group from and against and in respect of any and all actual lossLosses which arise or result from the following (collectively, damage and expense incurred by the Company resulting from"Seller Claims"), arising out ofIN EACH CASE, attributable toEVEN IF SUCH LOSSES ARE CAUSED BY THE SOLE, or in any manner connected withJOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF ANY PERSON INCLUDED IN THE SELLER GROUP, EXCEPT TO THE EXTENT CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SUCH PERSON: (ai) Any misrepresentation any breach or breach violation of any representation or warranty made by the Purchaser pursuant to this Agreement or failure to fulfill any covenant covenant, obligation or agreement on the part of CPS set forth in this Agreement; (ii) any breach or inaccuracy of any of the Purchaser contained representations or warranties made, as of the Closing Date, by CPS in this Agreement in ARTICLE 5; provided, that for purposes of determining whether there has been a breach or in any certificate or other document delivered, or to be delivered, by the Purchaser to the Company in connection with this Agreement; and (b) Any and all actions, suits, proceedings, demands, assessments or judgments, costs and expenses (including reasonable legal and accounting fees and investigation costs) incident to the foregoing and the enforcement thereof. If any event shall occur or any circumstance arise which might give rise to a claim in respect of any matter against which the Purchaser has indemnified the Company hereunder, the Company promptly shall give notice thereof to the Purchaser. Such notice shall be given within fifteen (15) days after said claim shall have been presented to the Company. Unless the parties otherwise agree in writing, the Purchaser shall defend against all such third-party claims or otherwise satisfy said claims, at its sole cost and expense, through counsel and accountants designated by it, which approval shall not be delayed or withheld unreasonably. The Company shall have the right to participate with the Purchaser in the defense inaccuracy of any such matter. The Purchaser representation or warranty, and the amount of Losses sustained or incurred, for purposes of this Section 8.3(a), such representations and warranties shall not be liable for any settlement of a claim by the Company interpreted without the Purchaser’s consent. Notwithstanding anything giving effect to the contrary hereinwords "material", "materially", "Material Adverse Effect", or words of similar effect; or (iii) if the Closing occurs as to CPS, the Company shall design, construction, ownership, operation or use of any of the Purchased Assets or the Generation Facility (but excluding the Excluded Assets), the failure to pay, perform or discharge any Assumed Liabilities as and when due or any other matter relating to or arising out of the Purchased Assets or the Generation Facility, in each case whether relating to periods of time prior to or after the Closing, to the extent CPS is not lay claim and entitled to indemnification by Seller against such Losses under Section 8.2(a) (subject to the Purchaser shall not be liable under limitations in this Section for any action, proceeding or investigation in respect of which indemnity may be sought as provided above, amounting to less than $50,000 in the aggregate, provided that such persons shall be liable from the first dollar for any claim or claims exceeding such amountAgreement).

Indemnification by Purchasers. During the Survival Period Each Purchaser, severally and subject not jointly, agrees to Section 18.14 below, each Purchaser shall and hereby does indemnify Sellers and hold the Company Sellers harmless from and against and in respect of any and all actual loss, damage and or expense incurred (including reasonable attorneys' fees) which Sellers actually incur (to the extent not covered by the Company resulting frominsurance recoveries obtained), arising out of, attributable to, suffer or become liable for as a result of or in any manner connected with: (a) Any misrepresentation connection with the inaccuracy or breach of any agreement, representation or warranty made by the Purchaser pursuant to this Agreement or failure to fulfill any covenant or agreement on the part of the such Purchaser contained in this Agreement occurring or in developing during the period of survival of such agreement, representation or warranty including any certificate claims by any third party alleging facts and circumstances which, if true, would constitute such inaccuracy or other document deliveredbreach. The Company and each Purchaser, severally and not jointly, agree to indemnify Sellers and hold Sellers harmless from any loss, damage or to be delivered, by the Purchaser expense (including reasonable attorneys' fees) which Sellers actually incur (to the Company extent not covered by insurance recoveries obtained), suffer or become liable for as a result of or in connection with this Agreement(a) any assertion against Sellers of any claim or liability of the Company accruing on or after the Closing Date or arising out of the operation of the Complex after the Closing Date or arising out of the Company's failure to satisfy the Assumed Obligations; and or (b) Any the assertion against Sellers by any person, firm, governmental agency or corporation of any obligation or liability of the Company occurring after the Closing Date and all actionsthereafter occurred, suitsincluding without limitation, proceedings, demands, assessments tax claims or judgments, costs and expenses (including reasonable legal and accounting fees and investigation costs) incident to the foregoing liabilities. Sellers shall give Purchasers and the enforcement thereof. If Company prompt written notice of any event shall occur claim, suit or any circumstance arise demand which might they believe will give rise to indemnification under this paragraph; provided, however, that the failure to give such notice shall not affect the liability of the indemnifying party hereunder unless the failure to give such notice adversely and materially affects the ability of the indemnifying party to defend itself against a claim in respect of any matter against which or to cure the Purchaser has indemnified breach or inaccuracy giving rise to the Company hereunderclaim for indemnification on account thereof. Except as hereinafter provided, the Company promptly shall give notice thereof to the Purchaser. Such notice shall be given within fifteen (15) days after said claim shall have been presented to the Company. Unless the parties otherwise agree in writing, the Purchaser shall defend against all such third-indemnifying party claims or otherwise satisfy said claims, at its sole cost and expense, through counsel and accountants designated by it, which approval shall not be delayed or withheld unreasonably. The Company shall have the right to participate defend and to direct the defense against any such claim, suit or demand, in its name or in the names of Sellers at the indemnifying party's expense and with counsel of the Purchaser indemnifying party's own choosing, which counsel shall be reasonably satisfactory to Sellers. Sellers shall, at the indemnifying party's expense, cooperate in the defense of any such matterclaim, suit or demand. The Purchaser If the indemnifying party, within reasonable time after notice of a claim, fails to defend Sellers or if, in the good faith judgment of Sellers, the facts giving rise to indemnification hereunder shall not involve a possible claim by Sellers or any of their affiliates against a third party seeking an injunction or other equitable relief against Sellers or any of their affiliates, Sellers shall be liable for any entitled to have separate counsel undertake the defense, compromise or settlement of a such claim at the expense of and for the account and risk of the indemnifying party subject to the right of the indemnifying party to assume the defense of such claim at any time prior to the settlement, compromise or final determination thereof if the only issues remaining therein involve liability for, or the amount of, money damages to be assessed against Sellers, provided the indemnifying party will not, without Sellers' written consent (not to be unreasonably withheld or delayed), settle or compromise any claim or consent to any entry of judgment which does not include as an unconditional term thereof the giving by the Company without claimant or the Purchaser’s consent. Notwithstanding anything plaintiff to the contrary herein, the Company shall not lay claim and the Purchaser shall not be liable under this Section for any action, proceeding or investigation Sellers a release from all liability in respect of which indemnity may such claim. No right or remedy conferred in this paragraph is intended to be sought as provided aboveexclusive of any other right or remedy available, amounting now or hereafter at law or in equity or otherwise, to less than $50,000 in the aggregate, provided that such persons shall be liable from the first dollar for any claim or claims exceeding such amountparties hereto.

Indemnification by Purchasers. During Post and the Survival Period Purchasers agree to indemnify the Company and subject to Section 18.14 belowits subsidiaries, each Purchaser shall officers, directors, employees, agents, successors and hereby does indemnify assigns against and hold the Company them harmless from all liabilities, losses, damages, claims, costs, and against and in respect of any and all actual lossexpenses (including without limitation reasonable attorney’s fees) (collectively, damage and expense “Losses”) actually incurred by the Company resulting from, them arising out of, attributable to, or in any manner connected with: (a) Any misrepresentation or of the breach of any representation or warranty made of such Purchaser contained herein. Anything in Section 5 (a) to the contrary notwithstanding, no claim may be asserted nor may any action be commenced against Post or such Purchaser for breach of any representation or warranty contained herein, unless written notice of such claim or action is received by Post or such Purchaser describing in reasonable detail the Purchaser facts and circumstances with respect to the subject matter of such claim or action on or prior to the date on which the representation or warranty on which such claim or action is based ceases to survive as set forth in Section 5(a), regardless of whether the subject matter of such claim or action shall have occurred before or after such date. The Company hereby acknowledges and agrees that its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement shall be pursuant to the indemnification provisions set forth in this Agreement Section 5 and hereby waives, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action it may have against Post or failure any Purchaser arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation (including without limitation any such rights, claims or causes of action arising under or based upon common law or otherwise); provided, however, that the preceding clause shall not apply to fulfill claims for fraud. Except as expressly set forth in this Agreement, neither Post nor any Purchaser is making any representation, warranty, covenant or agreement on the part of the Purchaser contained in this Agreement or in any certificate or other document delivered, or to be delivered, by the Purchaser with respect to the Company in connection with this Agreement; and (b) Any and all actions, suits, proceedings, demands, assessments or judgments, costs and expenses (including reasonable legal and accounting fees and investigation costs) incident to the foregoing and the enforcement thereof. If any event shall occur or any circumstance arise which might give rise to a claim in respect of any matter against which the Purchaser has indemnified the Company hereunder, the Company promptly shall give notice thereof to the Purchaser. Such notice shall be given within fifteen (15) days after said claim shall have been presented to the Company. Unless the parties otherwise agree in writing, the Purchaser shall defend against all such third-party claims or otherwise satisfy said claims, at its sole cost and expense, through counsel and accountants designated by it, which approval shall not be delayed or withheld unreasonably. The Company shall have the right to participate with the Purchaser in the defense of any such matter. The Purchaser shall not be liable for any settlement of a claim by the Company without the Purchaser’s consent. Notwithstanding anything to the contrary matters contained herein, the Company shall not lay claim and the Purchaser shall not be liable under this Section for any action, proceeding or investigation in respect of which indemnity may be sought as provided above, amounting to less than $50,000 in the aggregate, provided that such persons shall be liable from the first dollar for any claim or claims exceeding such amount.

Indemnification by Purchasers. During the Survival Period and subject to Section 18.14 below, each Purchaser shall and hereby does indemnify and hold the Company harmless from and against and in respect of any and all actual loss, damage and expense incurred by the Company resulting from, arising out of, attributable to, or in any manner connected with: (a) Any misrepresentation or breach of any representation or warranty made by the Purchaser pursuant to this Agreement or failure to fulfill any covenant or agreement on the part of the Purchaser contained in this Agreement or in any certificate or other document delivered, or to be delivered, by the Purchaser to the Company in connection with this Agreement; and (b) Any and all actions, suits, proceedings, demands, assessments or judgments, costs and expenses (including reasonable legal and accounting fees and investigation costs) incident to the foregoing and the enforcement thereof. If any event shall occur or any circumstance arise which might give rise to a claim in respect of any matter against which the Purchaser has indemnified the Company hereunder, the Company promptly shall give notice thereof to the Purchaser. Such notice shall be given within fifteen (15) days after said claim shall have been presented to the Company. Unless the parties otherwise agree in writing, the Purchaser shall defend against all such third-party claims or otherwise satisfy said claims, at its sole cost and expense, through counsel and accountants designated by it, which approval shall not be delayed or withheld unreasonably. The Company shall have the right to participate with the Purchaser in the defense of any such matter. The Purchaser shall not be liable for any settlement of a claim by the Company without the Purchaser’s 's consent. Notwithstanding anything to the contrary herein, the Company shall not lay claim and the Purchaser shall not be liable under this Section for any action, proceeding or investigation in respect of which indemnity may be sought as provided above, amounting to less than $50,000 in the aggregate, provided that such persons shall be liable from the first dollar for any claim or claims exceeding such amount.