Common use of Indemnification of Purchaser Clause in Contracts

Indemnification of Purchaser. The Company will indemnify and hold Purchaser and any of Purchaser’s Affiliates to whom the Shares are transferred (collectively, “Purchaser Indemnitees”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any Purchaser Indemnitee may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equity.

Indemnification of Purchaser. The Company will In consideration of Purchaser’s execution and delivery of this Agreement and acquiring the Shares thereunder from Sellers, each Seller, severally and not jointly, shall defend, protect, indemnify and hold harmless Purchaser and all of its shareholders, officers, directors, employees and direct or indirect investors and any of Purchaser’s Affiliates to whom the Shares are transferred foregoing persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Purchaser Indemnitees”) harmless from and against any and all lossesactions, liabilitiescauses of action, obligationssuits, claims, contingencieslosses, costs, penalties, fees, liabilities and damages, costs and expensesexpenses in connection therewith (irrespective of whether any such Seller Indemnitee is a party to the action for which indemnification hereunder is sought), and including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that disbursements (the “Purchaser Indemnified Liabilities”), incurred by any Purchaser Indemnitee may suffer or incur as a result of of, or arising out of, or relating to (ai) any misrepresentation or breach of any representation or warranty made by such Seller in this Agreement, or (ii) any breach by such Seller of any covenant, agreement or obligation of such Seller contained in this Agreement. To the extent that the foregoing undertaking by such Seller may be unenforceable for any reason, Sellers shall make the maximum contribution to the payment and satisfaction of each of the representationsPurchaser Indemnified Liabilities that is permissible under applicable law. Notwithstanding the forgoing, warrantiesthe liability of each Seller under this Section 8 for indemnification or contribution with respect to Purchaser Indemnified Liabilities shall be limited to an amount equal to the net proceeds received by such Seller from the sale of the Shares sold by such Seller in transactions made pursuant to this Agreement during the twelve (12) month period ending on the date on which Purchaser makes a claim for indemnification for such Purchaser Indemnified Liabilities; provided, covenants that such twelve (12) month limitation shall not apply to Purchaser Indemnified Liabilities resulting from, arising out of, or agreements relating to any breach by any Seller of the representations and warranties set forth in Sections 5.1 or 5.4. Indemnification and/or contribution of Purchaser pursuant to this Section 8.1 shall be the exclusive remedy of Purchaser for money damages as a result, or arising out of, or relating to, (i) any misrepresentation or breach of any representation or warranty made by the Company such Seller in this Agreement or in the other Transaction Documents or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period any breach by Sellers of time to assume such defense and to employ counsel any covenant, agreement or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses obligation of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser Seller contained in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityAgreement.

Indemnification of Purchaser. The Company will Seller hereby agrees to indemnify, defend and hold harmless Purchaser and any other holder of record title to the Property pursuant to Paragraph 21, their officers, directors, general partners, agents and employees and their respective heirs, executors, administrators, successors and assigns, from and against any and all liability arising out of the ownership or operation of the Property prior to Closing, including, but not limited to, any and all claims, liabilities, damages, penalties and losses, costs or expenses (including court costs and reasonable attorney's fees) incurred, resulting from or in any way arising out of any act or omission of Seller, its agents and employees, in respect of the operation of the Property prior to Closing, any injury to persons or damage to property happening or occurring in, on or about the Property. Seller further agrees, upon notice and request from Purchaser, to contest any such demand, claim, suit or action against which Seller has hereinabove agreed to indemnify and hold Purchaser harmless, and to defend any of Purchaser’s Affiliates to whom the Shares are transferred (collectivelyaction that may be brought in connection with any such demand, “Purchaser Indemnitees”) harmless from any and all lossesclaim, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any Purchaser Indemnitee may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any claim suit or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any which Seller has hereinabove agreed to indemnify and hold Purchaser Indemnitee in respect of which indemnity may be sought pursuant harmless and to this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees bear all costs and expenses of such counsel contest and defense, provided, however, that Seller shall have no obligation hereunder to indemnify or hold Purchaser harmless from and against any claim, liability, damage, penalty or loss, cost or expense incurred by Purchaser incident to, resulting from or in any way arising out of any act or omission of Purchaser, its agent or employees, it being understood and agreed, however, that the employees engaged in the operation of the Property prior to Closing are and shall be at construed to be, for purposes of this provision, the expense employees of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company Seller and the position acts and omissions of the said employees shall in no way be attributable to Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses purposes of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityprovision.

Indemnification of Purchaser. (a) The Company will indemnify Seller shall, after the Closing Date, indemnify, defend and hold harmless Purchaser, the Latisys Companies and the Latisys Companies’ officers, directors, agents and representatives, and each Affiliate of Purchaser and any of Purchaser’s Affiliates or the Latisys Companies (each hereinafter referred to whom the Shares are transferred (collectively, individually as a “Purchaser IndemniteesIndemnified Person” and collectively as “Purchaser Indemnified Persons”) harmless ), from and against, any and all claims, demands, suits, actions, causes of action, losses, liabilities, obligations, claims, contingenciescosts, damages, costs liabilities and expensesout-of-pocket expenses suffered, incurred or paid, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees fees, but specifically excluding punitive and costs of investigation exemplary damages except to the extent that any Purchaser Indemnitee may suffer punitive or incur exemplary damages are included and awarded in a Third-Party Claim (hereinafter collectively referred to as a result “Damages”), arising out of or relating resulting from an inaccuracy in, breach of, default in, or failure to (a) any breach of perform, any of the representations, warranties, warranties or covenants given or agreements made by the Company Companies or Seller in this Agreement or in the other Transaction Documents any Company Document or Seller Document (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect giving effect to any “materiality”, “material” or “Material Adverse Effect” qualifier set forth therein for purposes of determining whether a breach has occurred but not for purposes of determining the transactions contemplated by the Transaction Documentsamount of Damages) (collectively, “Company Breaches”). If any claim is made or any action is brought against any No Purchaser Indemnitee in respect of which indemnity may Indemnified Person will be sought entitled to be indemnified pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify the Section 10.1 for any liability or Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except Indebtedness to the extent that (i) the employment thereof has been specifically authorized by such liability or Company Indebtedness is reflected in the Company in writingIndebtedness, (ii) Company Transaction Expenses or Closing Working Capital and used to determine the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityAdjusted Purchase Price.

Indemnification of Purchaser. The Company will SCPPA undertakes and agrees, to the extent permitted by law, to indemnify and hold Purchaser harmless Purchaser, its board, officers, agents, attorneys, advisors, employees, and any the employees of Purchaser’s Affiliates to whom the Shares are transferred governmental entity of which the agent is a part, past, present or future (collectively, “Purchaser 3606960S.2 30 Indemnitees”) harmless ), from and against any and all lossesclaims, demands, liabilities, obligations, claimslosses, contingenciesdamages (whether direct, damagesindirect or consequential), costs and expensespenalties, including all actions, loss of profits, judgments, amounts paid in settlementsorders, court costs and reasonable suits, costs, expenses (including attorneys’ fees and costs expenses) or disbursements of investigation that any kind or nature whatsoever in law, equity or otherwise (including, without limitation, death, bodily injury or personal injury to any person or damage or destruction to any property of Purchaser, SCPPA or third persons) (collectively, “Losses”) which may be imposed on, incurred by or asserted against Purchaser Indemnitee may suffer or incur as a result arising by manner of or relating to (a) any breach of this Agreement by SCPPA, or the negligent acts, errors, omissions or willful misconduct incident to the performance of this Agreement on the part of SCPPA or any of SCPPA’s directors, board members, officers, employees, agents and advisors, past, present or future. At Purchaser’s option, SCPPA shall defend Purchaser Indemnitees from and against any and all Losses. If SCPPA, in response to Purchaser’s request, defends any Purchaser Indemnitee, Purchaser shall approve the representationsselection of counsel, warrantiesand Purchaser shall further approve any settlement or disposition, covenants such approval not to be unreasonably withheld. Nothing in this Section 13.7 or agreements made by the Company in any other provision of this Agreement shall affect Purchaser’s obligation to make any payment in accordance with Section 8.1 of this Agreement or in to pay any other amounts or costs required to be paid by it under this Agreement. . 13.8 Indemnification of Project Manager. The Parties acknowledge that SCPPA is obligated to indemnify any Project Manager (when acting within its capacity as the other Transaction Documents Project Manager), including as provided under Section 16.1 of the Agency ■ Agreement to indemnify and hold harmless LADWP, as Project Manager, its board, officers, agents, attorneys, advisors, employees, and the employees of the governmental entity of which the agent is a part, past, present or future, when acting for LADWP as Project Manager (bcollectively, the “Project Manager Indemnitees”) any claim or action instituted from and against any Purchaser Indemnitee and all claims, demands, liabilities, obligations, losses, damages (whether direct, indirect or consequential), penalties, actions, loss of profits, judgments, orders, suits, costs, expenses (including attorneys’ fees and expenses) or disbursements of any kind or nature whatsoever in law, equity or otherwise (including, without limitation, death, bodily injury or personal injury to any capacityperson or damage or destruction to any property of LADWP, SCPPA or third persons) arising by reason of any of its Affiliatesactions, by any stockholder inactions, errors or omissions incident to the performance of the CompanyAgency Agreement (excluding gross negligence or willful misconduct which, unless otherwise agreed to by the Parties, are both to be determined and established by a court of competent jurisdiction in a final, non-appealable order) on the part of Project Manager Indemnitees, when acting for LADWP as Project Manager. It is further acknowledged by the Parties that all payments, costs and expenses of SCPPA with respect to compliance with any such indemnification obligations, including under Section 16 of the transactions contemplated Agency Agreement, shall be payable as Monthly Costs by Project Participants in accordance with the Transaction Documentsterms of their respective Power Sales Agreements. At Project Manager’s option, SCPPA shall defend Project Manager Indemnitees from and against any and all Losses. If SCPPA, with Project Manager’s consent, defends any claim is made Project Manager Indemnitee, Project Manager and Project Manager’s City Attorney’s Office (or other appropriate Project Manager counsel or. authority, as appropriate) shall approve the selection of counsel, and Project Manager shall further approve any action is brought against settlement or disposition, such approval riot to be unreasonably withheld. Notwithstanding any provision of this Agreement which might be construed to the contrary, nothing in this Section 13.8 or in any other provision of this Agreement shall affect LADWP’s obligation as Purchaser Indemnitee in respect of which indemnity may be sought pursuant to under this Power Sales Agreement, such Purchaser Indemnitee shall promptly notify or the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense obligations of the Purchaser Indemnitee except other Project Participant under its Power Sales Agreement, to make any payment or to pay any cost required of it, or SCPPA’s obligation to make any payment or to pay any cost required of it under the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityAgency Agreement.

Indemnification of Purchaser. The Company will In consideration of Purchaser's execution and delivery of this Agreement and acquiring the Shares thereunder from Sellers, each Seller, severally and not jointly, shall defend, protect, indemnify and hold harmless Purchaser and all of its shareholders, officers, directors, employees and direct or indirect investors and any of Purchaser’s Affiliates to whom the Shares are transferred foregoing persons' agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, “Purchaser Indemnitees”the "PURCHASER INDEMNITEES") harmless from and against any and all lossesactions, liabilitiescauses of action, obligationssuits, claims, contingencieslosses, costs, penalties, fees, liabilities and damages, costs and expensesexpenses in connection therewith (irrespective of whether any such Seller Indemnitee is a party to the action for which indemnification hereunder is sought), and including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ ' fees and costs of investigation that disbursements (the "PURCHASER INDEMNIFIED LIABILITIES"), incurred by any Purchaser Indemnitee may suffer or incur as a result of of, or arising out of, or relating to (ai) any misrepresentation or breach of any representation or warranty made by such Seller in this Agreement, or (ii) any breach by such Seller of any covenant, agreement or obligation of such Seller contained in this Agreement. To the extent that the foregoing undertaking by such Seller may be unenforceable for any reason, Sellers shall make the maximum contribution to the payment and satisfaction of each of the representationsPurchaser Indemnified Liabilities that is permissible under applicable law. Notwithstanding the forgoing, warrantiesthe liability of each Seller under this Section 8 for indemnification or contribution with respect to Purchaser Indemnified Liabilities shall be limited to an amount equal to the net proceeds received by such Seller from the sale of the Shares sold by such Seller in transactions made pursuant to this Agreement during the twelve (12) month period ending on the date on which Purchaser makes a claim for indemnification for such Purchaser Indemnified Liabilities; provided, covenants that such twelve (12) month limitation shall not apply to Purchaser Indemnified Liabilities resulting from, arising out of, or agreements relating to any breach by any Seller of the representations and warranties set forth in Sections 5.1 or 5.4. Indemnification and/or contribution of Purchaser pursuant to this Section 8.1 shall be the exclusive remedy of Purchaser for money damages as a result, or arising out of, or relating to, (i) any misrepresentation or breach of any representation or warranty made by the Company such Seller in this Agreement or in the other Transaction Documents or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period any breach by Sellers of time to assume such defense and to employ counsel any covenant, agreement or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses obligation of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser Seller contained in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityAgreement.

Indemnification of Purchaser. The Company will Sellers hereby agrees, ---------------------------- severally and pro rata, in accordance with their respective ownership of --- ---- LLC Interests, to indemnify and hold harmless Purchaser and any of Purchaser’s Affiliates to whom the Shares are transferred (collectively, “Purchaser Indemnitees”) harmless from its affiliates against any and all actual losses, liabilities, obligationsdamages, demands, claims, contingenciessuits, damagesactions, costs judgments, causes of action, assessments, costs, and expenses, including including, without limitation, interest, penalties, reasonable attorneys' fees, any and all judgmentsreasonable expenses incurred in investigating, preparing, and defending against any litigation, commenced or threatened, and any claim whatsoever, and any and all amounts paid in settlementssettlement of any claim or litigation, court costs and reasonable attorneys’ fees and costs of investigation that any asserted against, resulting from, imposed upon, reasonably or incurred by Purchaser Indemnitee may suffer or incur its affiliates directly or indirectly, as a result of or relating to (a) arising from any inaccuracy in or breach or nonfulfillment of any of the representations, warranties, covenants covenants, or agreements made by Sellers in this Agreement with respect to facts and circumstances existing the Company Closing Date (all of which shall also be referred to collectively as "Damages"). "Damages" as used herein is not --------- limited to matters asserted by third parties, but includes Damages incurred or sustained by Purchaser or its subsidiaries in the absence of claims by a third party. Anything contained in this Agreement or the Escrow Agreement to the contrary notwithstanding, except as set forth in Sections 7.2A(2) and (3) below, the other Transaction Documents or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder aggregate indemnification obligation of the CompanySellers, and the sole recourse of Purchaser with respect to the satisfaction of such indemnification obligations, shall be the Initial Indemnification Fund as defined in Section 1.1(C) above, pro rata among the Sellers in accordance --- ---- with Schedule A; provided, however, that no Seller shall have any of obligation to indemnify the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense Damages arising out of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized breach by the Company in writing, (ii) the Company has failed after a reasonable period any other Seller of time to assume such defense representations and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements warranties made by Purchaser such other Seller in this Agreement Section 3 with respect to himself or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityherself only.

Indemnification of Purchaser. The Subject to the provisions of this Section 4.3, the Company will indemnify and hold the Purchaser and any of Purchaser’s Affiliates to whom the Shares are transferred its directors, officers, stockholders, partners, members, employees and agents (collectivelyeach, a “Purchaser IndemniteesParty”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Indemnitee Party may suffer or incur (the “Indemnified Liabilities”) as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any claim Action brought or made against such Purchaser Party by a third party (including for these purposes a derivative action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with respect to any the proceeds of the transactions contemplated issuance of the Shares, or (iii) the status of the Purchaser or holder of the Shares as an investor in the Company. The Company shall not be liable to the Purchaser under this provision in respect of any Indemnified Liability if such liability arises out of any misrepresentation by the Transaction DocumentsPurchaser in Section 3.2 of this Agreement. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. If any claim is made or any action is shall be brought against any Purchaser Indemnitee Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnitee Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to choosing. Any Purchaser Indemnitee. Purchaser Party shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the such Purchaser Indemnitee Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s such separate counsel, a material conflict on any material issue between the position of the Company and the position of the such Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counselParty. The Company will not be liable to any Purchaser Indemnitee Party under this Agreement to Section 4.3 for any settlement by a Purchaser Party effected without the extentCompany’s prior written consent, but only to the extent, that a loss, claim, damage which consent shall not be unreasonably withheld or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equitydelayed.

Indemnification of Purchaser. The Company will indemnify and hold the Purchaser and Affiliates and investment advisers (and any other Persons with a functionally equivalent role of Purchaser’s Affiliates to whom the Shares are transferred a Person holding such titles notwithstanding a lack of such title or any other title), (collectivelyeach, a “Purchaser IndemniteesIndemnified Person”) harmless from and against any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expensesexpenses actually and reasonably incurred by such Indemnified Person, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”) that any such Purchaser Indemnitee Indemnified Person may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (bii) any claim or action instituted against any a Purchaser Indemnitee Indemnified Person in any capacity, or any of its them or their respective Affiliates, by any stockholder shareholder of the CompanyCompany or other third party who is not a Purchaser, an Affiliate of a Purchaser, or an Affiliate of such Purchaser Indemnified Person, with respect to any of the transactions contemplated by the this Agreement or other Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee Indemnified Person under this Agreement or other Transaction Documents to the extent, but only to the extent, extent that a loss, claim, damage or liability is attributable to Purchaserany Purchaser Indemnified Person’s breach of any of the representations, warranties, covenants or agreements made by Purchaser such Indemnified Person in this Agreement or in the other Transaction DocumentsDocuments or attributable to the actions or inactions of such Purchaser Indemnified Person. The indemnity agreements contained herein Any indemnification payment made pursuant to this Agreement shall be treated as an adjustment to purchase price for Tax purposes, except as otherwise required by Law. Such payment shall not result in addition an adjustment to any cause the value of action or similar right of Purchaser against the original investment reported by the Company or others and any liabilities the Company may be subject to pursuant to law or equityunder GAAP.

Indemnification of Purchaser. The Company will indemnify Seller shall indemnify, defend and hold harmless Purchaser and any of Purchaser’s its Affiliates to whom the Shares are transferred and their respective officers, directors, employees, and agents (collectively, “Purchaser Indemnitees”the "Purchaser's Indemnified Parties") harmless from and against any and all losses, liabilities, obligations, claims, contingencies, damages, costs costs, expenses, fines, penalties, settlement payments and expenses, including all judgmentsliabilities, amounts paid in settlementsobligations and claims of any kind, court including, without limitation, reasonable attorney's fees and other reasonable legal and professional costs and reasonable attorneys’ fees and costs of investigation expenses (hereinafter referred to collectively as "Losses"), that any Purchaser Indemnitee of the Purchaser's Indemnified Parties may at any time suffer or incur incur, or become subject to, as a result of or relating to in connection with the following: (ai) any breach or inaccuracy of any of the representations, warranties, covenants or agreements representations and warranties made by the Company Seller or Ultimate in this Agreement or in the other Transaction Documents or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify and (ii) any failure of the Company in writingSeller or Ultimate to carry out, perform, satisfy and the Company shall have the right to assume the defense thereof with counsel discharge any of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except documents and instruments delivered by the Seller or Ultimate pursuant to this Agreement. In addition, Seller shall indemnify, defend and hold harmless Purchaser's Indemnified Parties from and against any and all Losses that any of the extent that Purchaser's Indemnified Parties might at any time suffer or incur in connection with, arising out of, resulting from or relating to (i) the employment thereof has been specifically authorized any fact inconsistent with, or any untruth or inaccuracy of, any representation or warranty of or by the Company Seller contained in writing, Section 3.18; (ii) the Company has failed after a reasonable period of time all Taxes with respect to assume such defense and to employ counsel or all Pre-Closing Periods; (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable all Taxes with respect to any Purchaser Indemnitee under this Agreement to Tax period beginning before the extentClosing Date and ending after the Closing Date (including the Federal Tax Period commencing January 1, 1999 and ending after the Closing Date), but only with respect to the extent, that a loss, claim, damage or liability is Pre-Closing Period and excluding Taxes attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Election (the Seller is not indemnifying and shall not be required to indemnify the Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition for Taxes with respect to any cause Post-Closing Period); and (iv) any Tax liability not directly imposed on Ultimate but arising out of action Ultimate's relationship with the Seller or any Seller Affiliate, including without limitation, Taxes imposed: (x) under Treasury Reg. ss.1.1502-6 (or any similar right provision of Purchaser against the Company state, local or others and any liabilities the Company may be subject to pursuant to law foreign law), (y) as a transferee or equitysuccessor, or (z) by contract.

Indemnification of Purchaser. The Company will indemnify (a) From and after the Effective Date, Seller and Axxxxxx Xxxxxx hereby agree, jointly and severally, to indemnify, defend, and hold harmless Purchaser and any of Purchaser’s Affiliates to whom its partners, officers, employees, advisors, affiliates, agents, representatives and assigns (the Shares are transferred (collectively, “Purchaser Indemnitees”) harmless from and against any and all losses, liabilities, obligationspenalties, damages, losses, claims, contingenciescosts, damages, costs and expenses, expenses (including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ attorneys fees and costs expenses for the defense of investigation any claim which, if proved, would give rise to an obligation of indemnity hereunder, notwithstanding that any Purchaser Indemnitee such claim may suffer or incur as a result be settled prior to final judgment) BUT EXCLUDING INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES, AND/OR OTHER FORMS OF ECONOMIC LOSSES AS TO CLAIMS MADE BY PURCHASER BUT NOT BY THIRD PARTIES arising out of or relating to resulting directly or indirectly from (a) any breach breach, falsity, or inaccuracy of any of the representationswarranty, warranties, covenants representation or agreements made covenant by the Company Seller contained in this Agreement or in the other Transaction Documents or Agreement; (b) any claim failure of Seller fully to pay, satisfy, perform or action instituted against any Purchaser Indemnitee in any capacitydischarge, or cause to be paid, satisfied, performed or discharged, any liabilities not expressly assumed by Purchaser pursuant to the terms hereof; (c) nonperformance of its Affiliates, by any stockholder obligations or covenants on the part of Seller under this Agreement; (d) the presence of any Hazardous Material or Hazardous Material Contamination upon or about the real property upon which the Business has heretofore been operated during Seller’s occupancy and prior to the Effective Date; or (e) the conduct of the CompanyBusiness or of Seller’s employees, with respect agents, or contractors prior to any of the transactions contemplated Effective Date (other than liabilities expressly assumed by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to this Agreementthe terms hereof), such Purchaser Indemnitee shall promptly notify including, without limitation, any violation of laws occurring or alleged to have occurred prior to the Company in writingEffective Date or arising from, and related to, or connected with the Company shall have Business prior to the right to assume the defense thereof with counsel of its own choosing reasonably acceptable Effective Date; or (f) any loss to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses due on account of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position breach or early termination of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that an employment agreement with Seller (each hereafter a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equity“Claim”).

Indemnification of Purchaser. The Company will SCPPA undertakes and agrees, to the extent permitted by law, to indemnify and hold Purchaser harmless Purchaser, its board, officers, agents, attorneys, advisors, employees, and any the employees of Purchaser’s Affiliates to whom the Shares are transferred governmental entity of which the agent is a part, past, present or future (collectively, “Purchaser Indemnitees”) harmless ), from and against any and all lossesclaims, demands, liabilities, obligations, claimslosses, contingenciesdamages (whether direct, damagesindirect or consequential), costs and expensespenalties, including all actions, loss of profits, judgments, amounts paid in settlementsorders, court costs and reasonable suits, costs, expenses (including attorneys’ fees and costs expenses) or disbursements of investigation that any kind or nature whatsoever . in law, equity or otherwise (including, without limitation, death, bodily injury or personal injury to any person or damage or destruction to any property of Purchaser, SCPPA or third persons) (collectively, “Losses”) which may be imposed on, incurred by or asserted against Purchaser Indemnitee may suffer or incur as a result arising by manner of or relating to (a) any breach of this Agreement by SCPPA, or the negligent acts, errors, omissions or willful misconduct incident to the performance of this Agreement on the part of SCPPA or any of SCPPA’s directors, board members, officers, employees, agents and advisors, past, present or future. At Purchaser’s option, SCPPA shall defend 27525687.5 Purchaser Indemnitees from and against any and all Losses. If SCPPA, in response to Purchaser’s request, defends any Purchaser Indemnitee, Purchaser shall approve the representationsselection of counsel, warrantiesand Purchaser shall further approve any settlement or disposition, covenants xx.xx approval not to be unreasonably withheld. Nothing in this Section 13.6 or agreements made by the Company in any other provision of this Agreement shall affect Purchaser’s obligation to make any payment in accordance with Section 8.1 of this Agreement or in the to pay any other Transaction Documents amounts or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, costs required to be paid by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to it under this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equity.

Indemnification of Purchaser. The Company will indemnify (a) Sellers agree that, after the Closing, subject to the limitations set forth in this Article VIII, Sellers shall indemnify, defend and hold harmless Purchaser and any of Purchaser’s Affiliates its officers, directors, agents and representatives (each hereinafter referred to whom the Shares are transferred (collectivelyindividually as a “Seller-Indemnified Person” and collectively as “Seller-Indemnified Persons”), “Purchaser Indemnitees”) harmless from and against any and all claims, demands, suits, actions, causes of actions, losses, liabilities, obligations, claims, contingenciescosts, damages, costs liabilities and expensesout-of-pocket expenses incurred or paid, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and fees, costs of investigation that any Purchaser Indemnitee or settlement, other professionals’ and experts’ fees, and court or arbitration costs but specifically excluding (except to the extent the same may suffer or incur be awarded to a third party in a Third-Party Claim) consequential damages, lost profits, indirect damages, punitive damages and exemplary damages (collectively referred to as a result “Damages”), to have arisen out of or relating to have resulted from, in connection with, or by virtue of (ai) any facts or circumstances that constitute an inaccuracy, misrepresentation, breach of of, default in, or failure to perform, any of the representations, warranties, warranties or covenants given or agreements made by the Company Sellers in this Agreement or in the other Transaction Documents or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought certificate delivered pursuant to this AgreementSection 7.2(c)(i) (collectively, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing“Limited-Indemnity Items”), (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or High Point Litigation, (iii) in Closing Indebtedness, (iv) the leases retained by Sellers pursuant to Section 1.7, or (v) any action, suit, investigation, or proceeding disclosed on Schedule 3.5 with respect to which the defense is not being provided or paid for by the insurer (collectively with the Limited-Indemnity Items, the High Point Litigation, Closing Indebtedness and the retained leases, the “Seller Indemnified Items”). For the avoidance of doubt, no Seller-Indemnified Person shall be entitled to be indemnified pursuant to this Section 8.1 for any liability to the extent such action there is, liability is actually reflected in the reasonable opinion of Closing Working Capital used to determine the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityFinal Purchase Price.

Indemnification of Purchaser. As of the Effective Time, each Company Shareholder, by virtue of the approval of the Merger and this Agreement by the requisite vote of the Company Shareholders, agrees, severally and not jointly, that the Escrow Shares to which such Company Shareholder becomes entitled upon consummation of the Merger (disregarding for this purpose any fractional shares) shall be placed in escrow, as partial security for the performance of the Company Shareholder's indemnification obligations hereunder, as provided for in the Escrow Agreement. The form of letter of transmittal to be signed by each Company will indemnify Shareholder contemplated by Section 1.6 shall specifically authorize the Escrow Agent from time to time to transfer all or any portion of the certificates so deposited, together with the proceeds from any sale of Escrow Shares, in satisfaction of such Company Shareholder's indemnification obligation hereunder. In connection therewith, Purchaser, and hold Purchaser and any each of Purchaser’s Affiliates 's subsidiaries, and their respective officers, directors, employees, agents, affiliates and shareholders (referred to whom collectively herein as the Shares are transferred "Purchaser") will be entitled to be indemnified and held harmless against and in respect of: (collectively, “Purchaser Indemnitees”i) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any Purchaser Indemnitee may suffer damages or incur deficiencies (whether as a result of a direct claim by Purchaser against the Company Shareholders, a third party claim against Purchaser or relating otherwise) resulting to (a) Purchaser from any breach and all breaches of any of the representations, warranties, covenants or agreements made other terms of this Agreement by the Company made or contained in this Agreement Agreement, the Company Disclosure Letter or in the other Transaction Documents or any exhibit to this Agreement; and (bii) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, by any stockholder of the Company, with respect all costs and expenses incident to any of the transactions contemplated by the Transaction Documents. If any claim is made and all actions, suits, proceedings, claims, demands, assessments, settlements or any action is brought against any Purchaser Indemnitee judgments in respect of which indemnity may the foregoing, regardless of the merit thereof, including Purchaser's reasonable legal and accounting fees and expenses (whether incident to the foregoing or to Purchaser's enforcement of said rights of defense and indemnity) (items (i) and (ii) above shall be sought referred to herein collectively as "Purchaser's Damages"). Except for claims of fraud or intentional misrepresentation, the indemnification provided pursuant to this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel Section 8.2 shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible Purchaser's sole remedy for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants representation or agreements made by Purchaser warranty set forth in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equityAgreement.

Indemnification of Purchaser. The Company will SCPPA undertakes and agrees, to the extent permitted by law, to indemnify and hold Purchaser harmless Purchaser, its board, officers, agents, attorneys, advisors, employees, and any the employees of Purchaser’s Affiliates to whom the Shares are transferred governmental entity of which the Agent is a part, past, present or future (collectively, “Purchaser Indemnitees”) harmless ), from and against any and all lossesclaims, demands, liabilities, obligations, claimslosses, contingenciesdamages (whether direct, damagesindirect or consequential), costs and expensespenalties, including all actions, loss of profits, judgments, amounts paid in settlementsorders, court costs and reasonable suits, costs, expenses (including attorneys’ fees and costs expenses) or disbursements of investigation that any kind or nature whatsoever in law, equity or otherwise (including, without limitation, death, bodily injury or personal injury to any person or damage or destruction to any property of Purchaser, SCPPA or third persons) (collectively, “Losses”) which may be imposed on, incurred by or asserted against Purchaser Indemnitee may suffer or incur as a result arising by manner of or relating to (a) any breach of this Agreement by SCPPA, or the negligent acts, errors, omissions or willful misconduct incident to the performance of this Agreement on the part of SCPPA or any of SCPPA’s directors, board members, officers, employees, agents and advisors, past, present or future. At Purchaser’s option, SCPPA shall defend Purchaser Indemnitees from and against any and all Losses. If SCPPA, with Purchaser’s consent, defends any Purchaser Indemnitee, Purchaser and the representationsPurchaser’s City Attorney shall approve the selection of counsel, warrantiesand Purchaser shall further approve any settlement or disposition, covenants such approval not to be unreasonably withheld. Nothing in this Section 17.7 or agreements made by the Company in any other provision of this Agreement shall affect Purchaser’s obligation to make any payment in accordance with Section 8.1 of this Agreement or in the to pay any other Transaction Documents amounts or (b) any claim or action instituted against any Purchaser Indemnitee in any capacity, or any of its Affiliates, costs required to be paid by any stockholder of the Company, with respect to any of the transactions contemplated by the Transaction Documents. If any claim is made or any action is brought against any Purchaser Indemnitee in respect of which indemnity may be sought pursuant to it under this Agreement, such Purchaser Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to Purchaser Indemnitee. Purchaser shall have the right to employ separate counsel in any such claim or action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Company’s counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Indemnitee, in which case the Company shall be responsible for the reasonable fees and expenses of such separate counsel. The Company will not be liable to any Purchaser Indemnitee under this Agreement to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law or equity.