Common use of By Purchaser Clause in Contracts

By Purchaser. Purchaser, subject to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: (i) any breach of any representation or warranty of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Date.

By Purchaser. The Acquired Eligible Receivables are freely assignable by the Purchaser, subject other than to a paper-based packaging competitor of the applicable Survival Period pursuant to Section 10.1 aboveSellers. This Agreement and any of Purchaser’s rights, interests or obligations hereunder may not be assigned or otherwise 4864-7968-1754, v.74933-2778-3252, v.4 transferred, in whole or in part, by Purchaser without the prior written consent of Sellers and any such purported assignment or transfer without such consent shall indemnifybe void and of no effect; provided, defend and hold that no consent of any Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs the Sellers Agent or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to Servicer shall be required in the extent arising by reason of or in connection with: event (i) any of an assignment or transfer to an Affiliate of Purchaser or (ii) of the occurrence and continuance of a Notification Event caused by a breach of this Agreement by any representation Seller, the Sellers Agent or warranty Servicer; provided, further, for the avoidance of doubt, this sentence shall not restrict the Purchaser from assigning or transferring the Acquired Eligible Receivables. Subject to the terms of the Participation Letter, the Purchaser may at any time, without the consent of, or notice to, any Seller, the Sellers Agent or Servicer, sell participations to Eligible Participants (each, a “Participant”) in all or a portion of the Purchaser’s rights and/or obligations under this Agreement; provided, that (x) the Purchaser’s obligations under this Agreement shall remain unchanged, (y) the Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, and (z) the Seller, the Sellers Agent and Servicer shall continue to deal solely and directly with the Purchaser in connection with the Purchaser’s rights and obligations under this Agreement Agreement. Notwithstanding the foregoing, Purchaser hereby agrees, and Sellers hereby acknowledge, that (x) Purchaser will require each Eligible Participant to whom a participation is sold to fund its pro rata portion of any Additional Funding Amounts payable pursuant to Clause 3.3(b) (it being understood that such pro rata portion may be the pro rata amount required to be funded pursuant to Clause 3.3(b) or any an amount in excess of a base amount of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished Purchaser Amount Balance not participated by the Purchaser pursuant to this Agreement Clause 17.9) and that Purchaser will grant each Eligible Participant the right to direct the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group to zero on 45 days prior written notice to Purchaser and effective on a Monthly Date (and during such 45 day period such Eligible Obligor Limit will automatically and without further notice to or consent of Seller, the Related AgreementsSellers Agent or Servicer, but expressly excluding the Franchise Agreements and Area Development notwithstanding any other provision of this Agreement, which equal the then outstanding principal amount of the Acquired Eligible Receivables due from the related Eligible Obligor Group on the date such notice is delivered) and (y) (I) on such Monthly Date of effectiveness, the Eligible Obligor Limit for such Eligible Obligor Group shall be governed by their respective terms)automatically and without further notice to or consent of Seller, the Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, be reduced to zero and (II) any such reduction may result in an automatic and contemporaneous reduction of the Assumed Real Property Leases Commitment pursuant to the definition of “Commitment.” If the Purchaser shall notify the Sellers Agent that an Eligible Participant shall (from and after i) have failed to fund its pro rata portion of an Additional Funding Amount (or has notified the Closing DatePurchaser that it does not intend to comply with its funding obligations, has failed to confirm in writing that it intends to comply with its funding obligation by the date requested by the Purchaser in writing following the Purchaser’s determination that it has a reasonable basis to believe that such Eligible Participant will not comply with its funding obligations, or is the subject of a Bankruptcy) and Assumed Seller’s Contracts (from and after the Closing Date); or (ii) have directed the Purchaser to reduce the Eligible Obligor Limit for any breach of any covenantEligible Obligor Group, obligation or then Sellers Agent may, in its sole discretion, notify the Purchaser that it wishes Purchaser to terminate the participation agreement of Purchaser with such Eligible Participant in this Agreement or any accordance with the terms of the Related Agreements (including all schedules related participation agreement, and exhibits hereto Purchaser will so terminate such agreement and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which Commitment shall be governed reduced by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Selleramount of such Eligible Participant’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datemaximum participation amount.

By Purchaser. PurchaserTo the extent allowed by law, subject to the applicable Survival Period pursuant to Section 10.1 abovePurchaser shall release, shall defend, indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, the Seller harmless from and against any and all manner of obligationsclaims, suitscosts, claimsdamages, liabilities, expenses, actions, damagesand causes of action, chargeswhatsoever, liabilities, losses, costs or expenses (including, without limitationbut not limited to, reasonable attorneys’ fees ' fees, court costs, other expenses of litigation, and costs) (each an “Indemnifiable Loss”)incidental, indirect, consequential, special, exemplary, and punitive damages, to the extent arising by reason out of or, in any way, connected with: i. Under the foregoing Article II (d), Seller’s failure to supply water during any time period when Seller lacks sufficient water to meet all of its customers' demands because of circumstances beyond Seller's control (which may include, but are not limited to, a drought, but which do not include Seller agreeing to serve new customers when it lacks sufficient water capacity to fully serve both those new customers and Purchaser). ii. Under the foregoing Article IV, any acts or omissions of the Purchaser, in connection with: (i) the installation, construction, inspection, operation, maintenance, expansion, repair, reconstruction, rehabilitation, relocation, or replacement of that system or appurtenant devices, or any breach other activity associated with the system, or (i) Purchaser’s inspection of Seller’s meters, or (iii) any representation defect or warranty of Purchaser flaw in this Agreement the design, installation, or construction of, or any failure or malfunction of, the Metered Point, meters, backflow prevention devices, booster pumps, supply lines, or other lines or equipment designed, installed/constructed, or provided by the Seller or any of its employees or agents, hereunder, including but not limited to the Related Agreements (including all schedules extension by the Purchaser of Seller’s existing line to the County border, the construction by Purchaser of any supply lines and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms)associated equipment, and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach installation by Purchaser of any covenantmeters or backflow prevention devices. iii. Under the foregoing Article VI, obligation or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or so comply with federal, state, and local laws and regulations. iv. Under the foregoing Article X, any reduction in water quality once it passes through the Metered Point and enters the Purchaser's water system. v. Under the foregoing Article XI, any reduction in the pressure of the obligations water once it passes through the Metered Point and enters the Purchaser's water system. vi. Under the foregoing Article XII, said booster pumps. vii. Under the foregoing Article XIII, the re-sale or other provision of “tenant” under the respective Assumed Real Property Leases relating water by Purchaser to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datethird party.

By Purchaser. To induce Seller to accept the delivery of this Agreement, to sell, transfer and assign Seller’s Percentage Interest, and give the releases herein, Purchaser hereby represents and warrants the following to Seller, on the Effective Date hereof and at the time of such delivery: 4.2.1 Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the state of its organization and has all requisite corporate power and authority to own, lease and use the Assets owned, leased or used by it and to conduct its business as presently conducted. 4.2.2 Purchaser has all requisite power and authority to execute and deliver, to perform its obligations under, and to consummate the transactions contemplated by, this Agreement and all other documents and instruments to be executed and delivered in connection with the transactions contemplated by this Agreement (collectively, the “Transaction Documents”) to which Purchaser is a party. The execution and delivery by Purchaser of, the performance by Purchaser of its obligations under, and the consummation by Purchaser of the transactions contemplated by, this Agreement and the Transaction Documents to which Purchaser is a party have been duly and validly authorized by all necessary action by or on behalf of Purchaser. This Agreement has been, and when executed and delivered by Seller the Transaction Documents will be, duly and validly executed and delivered by Purchaser and the valid and binding obligations of Purchaser, subject enforceable against Purchaser in accordance with their terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to the applicable Survival Period pursuant enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies. 4.2.3 Since June 30, 2006 (a) the Company has not incurred any non-ordinary course obligation or liability, the performance of which would be reasonably likely, individually or in the aggregate, to Section 10.1 abovehave a Material Adverse Effect, shall indemnify(b) there has not been any event or circumstance which, defend and hold Sellerindividually or in the aggregate, its affiliates and subsidiarieswould reasonably be expected to have a Material Adverse Effect, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner (c) the Company’s business has been conducted only in the Ordinary Course of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: Business. 4.2.4 Purchaser (i) understands that Seller’s Percentage Interest being purchased herein has not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or under any breach state securities law or Blue Sky Law of any representation or warranty of Purchaser in this Agreement or any of the Related Agreements jurisdiction (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date“Blue Sky Law”) and Assumed that Seller’s Contracts (from Percentage Interest is being offered and after the Closing Date)sold in reliance upon federal and State exemptions for transactions not involving a public offering; (ii) any breach of any covenant, obligation or agreement of Purchaser has had the opportunity to obtain information as desired in this Agreement or any of order to evaluate the Related Agreements (including all schedules merits and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed risks inherent in holding Seller’s Contracts (from and after the Closing Date)Percentage Interest; (iii) is able to bear the Assumed Liabilitieseconomic risk in holding Seller’s Percentage Interest; and (iv) is acquiring Seller’s Percentage Interest solely for investment and not with a view to the ownership, conduct and operation distribution or resale thereof. The term “solely for investment” used in this Section has the meaning given to that term for purposes of determining the availability of an exemption from registration under Section 4(2) of the Restaurants by Securities Act. Further, Purchaser arising from and after the Closingwill not sell, includingassign, without limitation, Purchaser’s operation under transfer or otherwise dispose of Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, Percentage Interest being acquired herein without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” registration under the respective Assumed Real Property Leases relating to the period of time arising Securities Act and under applicable Blue Sky Law unless an exemption from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Dateregistration thereunder is available.

By Purchaser. Purchaser, subject The Purchaser agrees to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent permitted by law, the Vendor and each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against all losses (excluding loss of profits), claims, damages, liabilities and expenses arising by reason out of or in connection withbased upon: (i) any breach of any representation information or warranty of Purchaser statement contained in this Agreement the preliminary prospectus, final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and in light of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, circumstances under which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date)it was made contains a misrepresentation; (ii) any breach of order made or inquiry, investigation or proceedings commenced or threatened by any covenantapplicable Commission, obligation court or agreement of Purchaser other competent authority based upon any misrepresentation in this Agreement the preliminary prospectus, the final prospectus, or any of amendment thereto or based upon any failure to comply with applicable Securities Laws (other than any failure to comply with applicable Securities Laws by the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement Vendor or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Dateunderwriter or underwriters); and (iii) non-compliance by the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of “tenant” under any of the respective Assumed Real Property Leases relating foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection (e) has been furnished to the period of time arising from and after Purchaser by the Closing DateVendor or the underwriter or underwriters expressly for use therein pursuant to subsection (e); (viiB) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the use and operation completion of any sale in contravention of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents Vendor’s obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claimsPurchaser, actions which consent shall not be unreasonably withheld or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datedelayed.

By Purchaser. Purchaser, Upon the terms and subject to the applicable Survival Period pursuant to Section 10.1 aboveconditions of this Agreement, shall indemnifyPurchaser and Parent shall, defend jointly and severally, indemnify and hold Seller, its affiliates and subsidiaries, harmless Seller and its and their respective shareholders, officers, directors, shareholders, employees, agents, representatives, successors and assignsassigns (collectively, harmless the "Seller Indemnitees"), from and against against, and will pay them the amount of, any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs Losses incurred or expenses suffered by Seller Indemnitees arising during the twelve (including, without limitation, reasonable attorneys’ fees 12) month period following the Closing and costs) (each an “Indemnifiable Loss”), relating to the extent or arising by reason out of or in connection withwith any of the following: (i1) any material breach as of the Closing Date in any representation or warranty of made by Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii2) any breach or nonfulfillment by Purchaser of any covenantof its covenants, obligation or agreement of Purchaser agreements or other obligations in this Agreement or Agreement; (3) any Assumed Liability; (4) the ownership of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after following the Closing Date; and (viii5) any and all claims, actions or proceedings the operation of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Business following the Closing Date, including, but not limited to, any third party, tort, or product liability claims; provided, however, (A) the indemnification obligations of Purchaser pursuant to this Section shall not exceed FOUR MILLION DOLLARS ($4,000,000) in the aggregate; (B) Purchaser and Parent shall not be obligated to indemnify the Seller Indemnitees for any loss, injury, damage or deficiency resulting from any breach of representation or warranty, the breach of which either Seller or Shareholder had Knowledge prior to the Closing Date; and (C) Purchaser shall not be obligated to indemnify the Seller Indemnitees with respect to any claims until the total of all such claims with respect to such matters exceeds TWO HUNDRED THOUSAND DOLLARS ($200,000) (the "Purchaser's Threshold") in the aggregate; provided, however, that if the total amount of such claims exceeds the Threshold in the aggregate, the Purchaser Indemnitees shall be entitled to be indemnified against the entire amount of such claims, not merely the portion of such claims exceeding the Purchaser's Threshold. .

By Purchaser. The Acquired Eligible Receivables are freely assignable by the Purchaser, subject other than to a paper-based packaging competitor of the applicable Survival Period pursuant to Section 10.1 aboveSellers. This Agreement and any of Purchaser’s rights, interests or obligations hereunder may not be assigned or otherwise transferred, in whole or in part, by Purchaser without the prior written consent of Sellers and any such purported assignment or transfer without such consent shall indemnifybe void and of no effect; provided, defend and hold that no consent of any Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs the Sellers Agent or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to Servicer shall be required in the extent arising by reason of or in connection with: event (i) any of an assignment or transfer to an Affiliate of Purchaser or (ii) of the occurrence of a Notification Event caused by a breach of this Agreement by any representation Seller, the Sellers Agent or warranty Servicer; provided, further, for the avoidance of doubt, this sentence shall not restrict the Purchaser from assigning or transferring the Acquired Eligible Receivables. Subject to the terms of the Participation Letter, the Purchaser may at any time, without the consent of, or notice to, any Seller, the Sellers Agent or Servicer, sell participations to Eligible Participants (each, a “Participant”) in all or a portion of the Purchaser’s rights and/or obligations under this Agreement; provided, that (x) the Purchaser’s obligations under this Agreement shall remain unchanged, (y) the Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, and (z) the Seller, the Sellers Agent and Servicer shall continue to deal solely and directly with the Purchaser in connection with the Purchaser’s rights and obligations under this Agreement Agreement. Notwithstanding the foregoing, Purchaser hereby agrees, and Sellers hereby acknowledge, that (x) Purchaser will require each Eligible Participant to whom a participation is sold to fund its pro rata portion of any Additional Funding Amounts payable pursuant to Clause 3.3(b) (it being understood that such pro rata portion may be the pro rata amount required to be funded pursuant to Clause 3.3(b) or any an amount in excess of a base amount of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished Purchaser Amount Balance not participated by the Purchaser pursuant to this Agreement Clause 17.9) and that Purchaser will grant each Eligible Participant the right to direct the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group to zero on 3045 days prior written notice to Purchaser and effective on a Monthly Date (and during such 3045 day period such Eligible Obligor Limit will automatically and without further notice to or consent of Seller, the Related AgreementsSellers Agent or Servicer, but expressly excluding the Franchise Agreements and Area Development notwithstanding any other provision of this Agreement, which equal the then outstanding principal amount of the Acquired Eligible Receivables due from the related Eligible Obligor Group on the date such notice is delivered) and (y) (I) on such Monthly Date of 4855-7613-32454864-7968-1754, v.107 effectiveness, the Eligible Obligor Limit for such Eligible Obligor Group shall be governed by their respective terms)automatically and without further notice to or consent of Seller, the Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, be reduced to zero and (II) any such reduction may result in an automatic and contemporaneous reduction of the Assumed Real Property Leases Commitment pursuant to the definition of “Commitment.” If the Purchaser shall notify the Sellers Agent that an Eligible Participant shall (from and after i) have failed to fund its pro rata portion of an Additional Funding Amount (or has notified the Closing DatePurchaser that it does not intend to comply with its funding obligations, has failed to confirm in writing that it intends to comply with its funding obligation by the date requested by the Purchaser in writing following the Purchaser’s determination that it has a reasonable basis to believe that such ▇▇▇▇▇▇▇▇ Participant will not comply with its funding obligations, or is the subject of a Bankruptcy) and Assumed Seller’s Contracts (from and after the Closing Date); or (ii) have directed the Purchaser to reduce the Eligible Obligor Limit for any breach of any covenantEligible Obligor Group, obligation or then Sellers Agent may, in its sole discretion, notify the Purchaser that it wishes Purchaser to terminate the participation agreement of Purchaser with such Eligible Participant in this Agreement or any accordance with the terms of the Related Agreements (including all schedules related participation agreement, and exhibits hereto Purchaser will so terminate such agreement and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which Commitment shall be governed reduced by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Selleramount of such Eligible Participant’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datemaximum participation amount.

By Purchaser. Purchaser, subject Purchaser agrees to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend indemnify and hold Seller, its affiliates and subsidiaries, harmless Seller and its affiliates, and their respective officersshareholders, directors, shareholdersofficers, employees, agentssuccessors, successors and assigns, harmless and agents (the “Seller Indemnified Persons”) from and against any and all manner of obligations, suits, claims, actionslosses, damages, charges, liabilities, lossesexpenses or costs (“Losses”), costs or expenses (including, without limitation, plus reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”)expenses incurred in connection with Losses and/or enforcement of this Agreement, to the extent arising incurred by Seller by reason of or arising out of or in connection with: with (i) any the breach of any representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser in to perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 5 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the Related Agreements provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser under this Section 9.2, then Seller shall control the contest, defense, settlement or compromise of any such claim (including all schedules the engagement of counsel in connection therewith), at Purchaser’s cost and exhibits hereto expense, including the cost and expense of reasonable attorneys’ fees in connection with such contest, defense, settlement or compromise, and Seller shall have the right to participate in the contest, defense, settlement or compromise of any such claim at its own cost and expense, including the cost and expense of reasonable attorneys’ fees in connection with such participation; provided, however, that Seller shall not settle or compromise any such claim without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claim, or if at any time Purchaser shall fail to defend in good faith any such claim, Seller may assume the defense thereof and may employ counsel with respect thereto and all certificatesfees and expenses of such counsel shall be paid by Purchaser, documentsand Seller may conduct and defend such claim in such manner as it may deem appropriate; provided, instruments and undertakings furnished pursuant to this Agreement however, that Seller shall not settle or compromise any such claim without the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreementprior written consent of Purchaser, which consent shall not be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation unreasonably withheld or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datedelayed.

By Purchaser. Purchaser, subject The Purchaser agrees to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent permitted by law, the Vendors and each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against all losses (excluding loss of profits), claims, damages, liabilities and expenses arising by reason out of or in connection withbased upon: (i) any breach of any representation information or warranty of Purchaser statement contained in this Agreement the preliminary prospectus, final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and in light of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, circumstances under which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date)it was made contains a misrepresentation; (ii) any breach of order made or inquiry, investigation or proceedings commenced or threatened by any covenantapplicable Commission, obligation court or agreement of Purchaser other competent authority based upon any misrepresentation in this Agreement the preliminary prospectus, the final prospectus, or any of amendment thereto or based upon any failure to comply with applicable Securities Laws (other than any failure to comply with applicable Securities Laws by the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement Vendors or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Dateunderwriter or underwriters); and (iii) non-compliance by the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of “tenant” under any of the respective Assumed Real Property Leases relating foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection 9(e)(i) has been furnished to the period of time arising from and after Purchaser by the Closing DateVendors or the underwriter or underwriters expressly for use therein pursuant to subsection 9(d)(i); (viiB) caused by the Vendors or any underwriter’s failure to deliver to a purchaser of Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the use and operation completion of any sale in contravention of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents Vendors’ obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claimsPurchaser, actions which consent shall not be unreasonably withheld or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datedelayed.

By Purchaser. PurchaserEffective upon the Closing, subject Purchaser Release Parties do hereby remise, release, acquit, waive, satisfy and forever discharge Seller Release Parties from any and all manner of debts, accountings, bonds, warranties, representations, covenants, promises, contracts, controversies, agreements, liabilities, obligations, expenses, damages, judgments, executions, objections, defenses, setoffs, actions, claims, demands and causes of action of any nature whatsoever, whether at law or in equity, whether known or unknown, either now accrued or hereafter maturing, which Purchaser Release Parties, or any of them, now or hereafter can, shall or may have by reason of any matter, cause or thing from the beginning of the world to and including the date of this Agreement, arising out of or relating to (i) the Property, and (ii) the sale of and management of the Property after the sale pursuant to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiariesterms of this Agreement, and its Purchaser Release Parties, jointly and severally, for themselves and all of their respective officers, directors, shareholders, employees, agentsheirs, successors and assigns, harmless from hereby covenant and agree never to institute or cause to be instituted or continue prosecution of any suit or other form of action or proceeding of any kind or nature whatsoever against any and all manner of obligationsSeller Release Parties, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: (i) any breach of any representation or warranty of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations foregoing matters, claims or causes of “tenant” under action. The foregoing release and covenant not to ▇▇▇ shall not relate or apply to any of the respective Assumed Real Property Leases relating covenants, agreements, representations or warranties of Seller set forth in this Agreement. Each of Purchaser Release Parties represents and warrants that (A) no Purchaser Release Party has assigned, in whole or in part, any of the claims, matters, or causes of action released herein; (B) this waiver and release is voluntary and without any duress or undue influence, and is given as part of the consideration for this Agreement; (C) it may hereafter discover facts different from or in addition to those, which it now believes to be true with respect to the period foregoing release of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Dateclaims; and (viiiD) the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts. Each of Purchaser Release Parties expressly waives and assumes the risk of any and all claims, actions demand, obligations, or proceedings causes of action for damages arising out of any nature occurring matter which may exist as of this date but which any of Purchaser Release Parties does not know or threatened against suspect to exist in their favor, for any reason, including ignorance, oversight, error, negligence, or otherwise, and which, if known, would or could affect their decision to enter into this Agreement. Each of Purchaser Release Parties expressly waives all rights under Section 1542 of the Civil Code of the State of California and all other similar provisions of any statute or Seller common law ruling of any other jurisdiction, which relate Purchaser Release Parties understand provide or may be interpreted to matters arising after the Closing Dateprovide as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

By Purchaser. PurchaserPurchaser hereby makes the following representations and warranties to Seller as of the Effective Date, which representations and warranties shall be deemed to have been made again as of the Closing, subject to Section 8.3.5 hereof: 7.2.1. Purchaser is a limited liability company duly organized and validly existing under the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: (i) any breach of any representation or warranty of Purchaser in this Agreement or any laws of the Related Agreements (including all schedules State of Delaware and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant is qualified to do business in the State of Texas. 7.2.2. The execution of this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms)the consummation of the transactions herein contemplated, and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation performance or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any observance of the obligations of “tenant” Purchaser hereunder have been duly authorized by requisite action and are enforceable against Purchaser in accordance with their respective terms. The individuals executing this Agreement on behalf of Purchaser are authorized to act for and on behalf of and to bind Purchaser in connection with this Agreement and Purchaser has obtained all 14 necessary consents to perform its obligations under this Agreement and acquire the respective Assumed Real Property Leases relating from Seller at Closing. 7.2.3. Purchaser has received no written notice of any action, suit or proceeding against Purchaser in any court or by or before any other Governmental Entity (which, if adversely determined, would materially and adversely affect the ability of Purchaser to consummate the transactions contemplated by this Agreement and the Lease, and/or to perform its obligations under this Agreement and/or the Lease) and, no such action, suit or proceeding is pending, or to the period current actual knowledge of time arising from and after Purchaser, overtly threatened. 7.2.4. The execution of this Agreement, the Closing Date; (vii) the use and operation consummation of the Demised Premisestransactions herein contemplated, leasehold improvements, other Purchased Assets and the performance and observance of the obligations of Purchaser hereunder and under any and all other contents agreements and instruments herein mentioned to which Purchaser is a party will not conflict with or result in the breach of any agreement or instrument to which Purchaser is now a party or to which it is subject, or constitute a default thereunder, does not require Purchaser to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties and, to Purchaser’s current actual knowledge, will not conflict with or result in the breach of any law or regulation, order, writ, injunction, or decree of any court or governmental instrumentality. 7.2.5. No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws is pending against or contemplated by Purchaser. 7.2.6. Neither Purchaser nor any individual or entity having an interest in Purchaser is a person or entity described by Section 1 of the Demised Premises relating Executive Order (No. 13,224) Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to the period of time arising from Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001), and after the Closing Date; does not engage in any dealings or transactions, and (viii) is not otherwise associated, with any and all claims, actions such persons or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Dateentities.

By Purchaser. PurchaserPurchaser shall defend, subject to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend indemnify and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, Seller harmless from and against any and all manner of obligationsclaims, demands, actions, suits, claimsproceedings, actionsjudgments, liabilities, settlement amounts, damages, charges, liabilities, losses, costs or and expenses (including, without limitation, reasonable attorneys’ fees and costs' fees) (each an “Indemnifiable Loss”), to the extent arising by reason out of or in connection withwith the following: (a) any claim that the lease amendments described in Section 2 above are a breach of Seller's fiduciary duty to the Partnerships; and (b) the tax returns described in Section 12.5 above (or the failure to file returns) or the execution thereof by Seller and the RSH Controlled Entities; and (c) any liability arising or accruing in connection with (i) Purchaser's ownership of a Undisputed Interest if such liability arises or accrues after the date said Undisputed Interest is conveyed to Purchaser under this Agreement or (ii) Purchaser's management of Headquarters Newco, Wooded Lot Newco or Bridgeview Newco. Notwithstanding the foregoing, however, this Section does not apply to any otherwise indemnified matter that Seller may incur from a claim by Robe▇▇ ▇. ▇▇▇▇ ▇▇▇/or Lind▇ ▇. ▇▇▇▇ (▇▇ their successors or assigns) arising from their capacities as partners in 75th Avenue Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership and related to any tax liability triggered by any sale, contribution, joint venture or other act undertaken by said partnerships or by the Partnerships in which they are partners or with respect to the Properties they own, unless the following conditions are met: (i) any breach the applicable Property has been transferred to a Newco and the Plan of any representation Reorganization as approved by the Bankruptcy Court does not include item (c) from Section 6.5, or warranty of Purchaser has been substituted for Seller as the general partner in this Agreement or any Seventy-Fifth Avenue Associates Limited Partnership and/or Trak Chicago Limited Partnership I, as applicable, by an assignment of the Related Agreements (including all schedules Interim Partnership Interests under this Agreement; and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach Purchaser, as manager of any covenant, obligation the Newco or as such general partner as set forth in the preceding clause breaches the partnership agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules 75th Avenue Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership; and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) that breach gives rise to the Assumed Liabilities; aforesaid tax liability. In addition, the foregoing indemnities under this subparagraph do not apply to any transaction, event or act contemplated by this Agreement, including (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified ) those enumerated in Schedule 4.14; (vSection 16(e) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Dateabove.

By Purchaser. PurchaserPurchaser hereby makes the following representations and warranties to Seller as of the Effective Date, which representations and warranties shall be deemed to have been made again as of the Closing, subject to Section 8.3.5 hereof: 7.2.1. Purchaser is a limited liability company duly organized and validly existing under the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: (i) any breach of any representation or warranty of Purchaser in this Agreement or any laws of the Related Agreements (including all schedules State of Delaware and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant is qualified to do business in the State of Texas. 7.2.2. The execution of this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms)the consummation of the transactions herein contemplated, and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation performance or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any observance of the obligations of “tenant” Purchaser hereunder have been duly authorized by requisite action and are enforceable against Purchaser in accordance with their respective terms. The individuals executing this Agreement on behalf of Purchaser are authorized to act for and on behalf of and to bind Purchaser in connection with this Agreement and Purchaser has obtained all necessary consents to perform its obligations under this Agreement and acquire the respective Assumed Real Property Leases relating from Seller at Closing. 7.2.3. Purchaser has received no written notice of any action, suit or proceeding against Purchaser in any court or by or before any other Governmental Entity (which, if adversely determined, would materially and adversely affect the ability of Purchaser to consummate the transactions contemplated by this Agreement and the Lease, and/or to perform its obligations under this Agreement and/or the Lease) and, no such action, suit or proceeding is pending, or to the period current actual knowledge of time arising from and after Purchaser, overtly threatened. 7.2.4. The execution of this Agreement, the Closing Date; (vii) the use and operation consummation of the Demised Premisestransactions herein contemplated, leasehold improvements, other Purchased Assets and the performance and observance of the obligations of Purchaser hereunder and under any and all other contents agreements and instruments herein mentioned to which Purchaser is a party will not conflict with or result in the breach of any agreement or instrument to which Purchaser is now a party or to which it is subject, or constitute a default thereunder, does not require Purchaser to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties and, to Purchaser’s current actual knowledge, will not conflict with or result in the breach of any law or regulation, order, writ, injunction, or decree of any court or governmental instrumentality. 7.2.5. No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws is pending against or contemplated by Purchaser. 7.2.6. Neither Purchaser nor any individual or entity having an interest in Purchaser is a person or entity described by Section 1 of the Demised Premises relating Executive Order (No. 13,224) Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to the period of time arising from Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001), and after the Closing Date; does not engage in any dealings or transactions, and (viii) is not otherwise associated, with any and all claims, actions such persons or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Dateentities.

By Purchaser. Purchaser(a) Subject to subsections (b) and (c) of this Section 7.02, subject to the applicable Survival Period pursuant to Section 10.1 above, Purchaser shall indemnify, defend indemnify and hold Parent, the Seller, its affiliates and subsidiaries, and its and their respective Affiliates, officers, directors, shareholders, employees, agents, successors successors, and assigns, harmless from and against any related entities from, and all manner of obligationsreimburse them for, suits, claims, actions, damages, charges, liabilities, losses, costs Indemnified Costs arising or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: resulting from: (i) any breach of any representation or warranty of made by Purchaser in this Agreement Agreement; (ii) Purchaser’s breach of or failure to perform any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished its covenants or agreements contained in or made pursuant to this Agreement or (except to the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); extent clauses (iii) or (iv) shall apply); (iii) any loss, cost, demand, assessment, expense, damage, liability, fine, penalty or claim relating to the Assumed Liabilities; Sold Assets and accruing on or after the Funding Date; (iv) the ownership, conduct and possession, control, use, maintenance, leasing or operation of the Restaurants by Purchaser arising Sold Assets or the financing, sale, transfer or assignment of the Sold Assets, in each case from and after the ClosingFunding Date, includingincluding any liability arising under Tax, without limitationsecurities or other Applicable Laws in connection with the ownership, possession, control, use, maintenance, leasing, operation, financing, sale, transfer or assignment of the Sold Assets. (b) Notwithstanding the foregoing, the Purchaser shall have no liability to the extent that the Parent, the Seller or any Affiliate thereof realizes a Tax Benefit which is directly attributable to such Indemnified Cost on or before the fourth anniversary of the Funding Date or receives insurance or other recovery in respect of an Indemnified Cost. In addition, notwithstanding the foregoing, the Purchaser shall have no liability to the extent that any Indemnified Cost is caused by or arises from any non-compliance with or breach of any covenant or agreement of Parent, Seller or any Affiliate thereof (including CAI) contained in the Management Agreement. (c) Notwithstanding the foregoing, Purchaser shall have no liability for indemnification pursuant to Section 7.02(a)(i) or (ii) unless the aggregate of all Indemnified Costs under Section 7.02(a)(i) or (ii) for which Purchaser would, but for this subsection (c), be liable exceeds on a cumulative basis an amount equal to one million Dollars ($1,000,000), in which case Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) liability shall be only for such excess, nor shall Purchaser be liable for any and all claims and liabilities relating such Indemnified Costs that, when added to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of amounts that Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or has otherwise paid pursuant to applicable laws Section 7.02(a)(i) or (ii), exceed the amount of seventy-five million Dollars ($75,000,000). Purchaser shall not be liable to pay Indemnified Costs more than once with respect to an Indemnified Cost resulting from the same facts, events or circumstances, even if such facts, events or circumstances constitute both an Assumed Liability and regulations arising from a breach of any representations and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure warranties for which Purchaser shall or would but for this provision be obligated to observepay Indemnified Costs hereunder, perform or comply with any provided, however, Purchaser shall be liable to pay for Indemnified Costs that arise out of the obligations of “tenant” under same facts, events or circumstances when the respective Assumed Real Property Leases relating Indemnified Costs resulting from such facts, events or circumstances that are not duplicative or result in damages, costs or liabilities that were not indemnified pursuant to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datefirst such indemnification payment.

By Purchaser. Purchaser, subject The Purchaser agrees to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent permitted by law, the Vendor and each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against all losses (excluding loss of profits), claims, damages, liabilities and expenses arising by reason out of or in connection withbased upon: (i) any breach of any representation information or warranty of Purchaser statement contained in this Agreement the preliminary prospectus, final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and in light of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, circumstances under which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date)it was made contains a misrepresentation; (ii) any breach of order made or inquiry, investigation or proceedings commenced or threatened by any covenantapplicable Commission, obligation court or agreement of Purchaser other competent authority based upon any misrepresentation in this Agreement the preliminary prospectus, the final prospectus, or any of amendment thereto or based upon any failure to comply with applicable Securities Laws (other than any failure to comply with applicable Securities Laws by the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement Vendor or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Dateunderwriter or underwriters); and (iii) non-compliance by the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of “tenant” under any of the respective Assumed Real Property Leases relating foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection 9(e)(i) has been furnished to the period of time arising from and after Purchaser by the Closing DateVendor or the underwriter or underwriters expressly for use therein pursuant to subsection 9(d)(i); (viiB) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the use and operation completion of any sale in contravention of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents Vendor’s obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claimsPurchaser, actions which consent shall not be unreasonably withheld or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datedelayed.

By Purchaser. PurchaserTo the fullest extent permitted by law, subject to the applicable Survival Period pursuant to Section 10.1 above, shall Purchaser will indemnify, defend and hold Sellerharmless each Executing Shareholder, its affiliates and subsidiaries, and its and their respective the officers, directors, shareholdersagents and employees of each of them, employeeseach person who controls any Executing Shareholder within the meaning of Section 15 of the Securities Act or Section 12 of the Exchange Act, agentsand the officers, successors directors, agents and assignsemployees of each such controlling person, harmless from and against any and all manner of obligations, suitslosses, claims, actionsdamages, or liabilities (joint or several) to which such Executing Shareholder may become subject under the Securities Act, the Exchange Act, other U.S. federal or state law or otherwise, insofar as such losses, claims, damages, chargesor liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, liabilitiesomissions or violations (collectively, lossesa “Violation”): (A) any untrue statement or alleged untrue statement of a material fact contained in a registration statement filed by Purchaser pursuant to this Section 7.03 pursuant to which Closing Consideration Shares are sold, costs including any preliminary prospectus or expenses final prospectus contained therein or any amendments or supplements thereto; (includingB) the omission or alleged omission to state in such registration statement, preliminary prospectus or final prospectus or any amendments or supplements thereto, a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (C) any violation or alleged violation by Purchaser of the Securities Act, the Exchange Act, any U.S. federal or state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any U.S. federal or state securities law in connection with the offering of Closing Consideration Shares covered by such registration statement; provided, however, that the indemnity agreement contained in this Section 7.03(e)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without limitationthe prior written consent of Purchaser, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”)nor shall Purchaser be liable in any such case for any such loss, claim, damage, liability or action to the extent arising by reason that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with: (i) any breach with such registration by such Holder or as result of any representation violation or warranty alleged violation by a Selling Shareholder of Purchaser in this Agreement the Securities Act, the Exchange Act, any U.S. federal or state securities law or any of rule or regulation promulgated under the Related Agreements (including all schedules and exhibits hereto and thereto and all certificatesSecurities Act, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation or agreement of Purchaser in this Agreement Exchange Act or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement U.S. federal or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datestate securities law.

By Purchaser. Neither this Agreement nor any of Purchaser’s rights, subject to interests or obligations hereunder (including Purchaser’s rights in respect of the applicable Survival Period pursuant to Section 10.1 abovePurchased Receivables) may be assigned, shall indemnifydelegated or otherwise transferred, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of in whole or in connection with: part, by operation of Law, merger, change of control, or otherwise, by Purchaser without the prior written consent of Seller (i) any breach of any representation such consent not to be unreasonably withheld, delayed or warranty of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective termsconditioned), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenantsuch purported assignment, obligation delegation or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which transfer without such consent shall be governed by their respective terms)void ab initio and of no effect; provided, and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownershiphowever, conduct and operation of the Restaurants by Purchaser arising from and after that following the Closing, includingPurchaser may, upon [***] prior written notice to Seller, but without limitationthe prior written consent of Seller, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any assign this Agreement and all of Purchaser’s Hired Employees arising from rights, interests and after the Closing Date and other employees obligations hereunder, in whole, to an Affiliate of Purchaser or to a fund that is exclusively managed by Purchaser or by its affiliatesAffiliate (in each case, includingan “Affiliate Transferee”) if (i) such Affiliate Transferee agrees in a writing, without limitationin form and substance reasonably satisfactory to Seller, any to perform all obligations under, and to be bound by all claims the provisions of, this Agreement (including Section 6.11 and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any each of the other covenants set forth in Article VI that are applicable to Purchaser) as if such Affiliate Transferee were the “Purchaser” under this Agreement, (ii) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller and the Escrow Agent, to perform all obligations of under, and to be bound by the provisions of, the Escrow Agreement as if such Affiliate Transferee were a “tenantPurchaser” under the respective Assumed Real Property Leases relating Escrow Agreement, (iii) such Affiliate Transferee’s creditworthiness (after giving effect to such assignment) is at least as favorable to Seller as that of Purchaser at the time of such assignment and (iv) such Affiliate Transferee represents and warrants to Seller that each of the representations and warranties set forth in Article V (including those set forth in Section 5.10) are true and correct as of the date of such assignment as if such Affiliate Transferee were the “Purchaser” under this Agreement (with such modifications to Section 5.1 and the first sentence of Section 5.10 as are necessary to account for such Affiliate Transferee’s entity type and jurisdiction of organization (but, in any event, the first sentence of Section 5.10 shall confirm that such Affiliate Transferee is exempt from United States federal withholding tax on all payments with respect to the period Purchased Receivables) and with such language giving effect to such modifications as shall be agreed to by Seller (such agreement of time arising from and after the Closing Date; (vii) the use and operation of the Demised PremisesSeller not to be unreasonably withheld, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions delayed or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Dateconditioned)).

By Purchaser. Purchaser, subject Purchaser agrees to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend indemnify and hold Seller, its affiliates and subsidiaries, harmless Seller and its affiliates, and their respective officersshareholders, directors, shareholdersofficers, employees, agentssuccessors, successors and assigns, harmless and agents (the "Seller Indemnified Persons") from and against any and all manner of obligations, suits, claims, actionslosses, damages, charges, liabilities, lossesexpenses or costs ("Losses"), costs or expenses (including, without limitation, plus reasonable attorneys’ ' fees and costs) (each an “Indemnifiable Loss”)expenses incurred in connection with Losses and/or enforcement of this Agreement, to the extent arising incurred by Seller by reason of or arising out of or in connection with: with (i) any the breach of any representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser in to perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 7 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the Related Agreements provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser under this Section 11.2, then Seller shall control the contest, defense, settlement or compromise of any such claim (including all schedules the engagement of counsel in connection therewith), at Purchaser's cost and exhibits hereto expense, including the cost and expense of reasonable attorneys' fees in connection with such contest, defense, settlement or compromise, and Seller shall have the right to participate in the contest, defense, settlement or compromise of any such claim at its own cost and expense, including the cost and expense of reasonable attorneys' fees in connection with such participation; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claim, or if at any time Purchaser shall fail to defend in good faith any such claim, Seller may assume the defense thereof and may employ counsel with respect thereto and all certificatesfees and expenses of such counsel shall be paid by Purchaser, documentsand Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; PROVIDED, instruments and undertakings furnished pursuant to this Agreement HOWEVER, that Seller shall not settle or compromise any such claim without the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreementprior written consent of Purchaser, which consent shall not be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach of any covenant, obligation unreasonably withheld or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (iii) the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing Date; (vii) the use and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datedelayed.

By Purchaser. Purchaser, subject The Purchaser agrees to the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent permitted by law, the Vendor and each person who participates as an underwriter in the offering or sale of the Consideration Shares, their respective directors, officers, employees and agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against all losses (excluding loss of profits), claims, damages, liabilities and expenses arising by reason out of or in connection withbased upon: (i) any breach of any representation information or warranty of Purchaser statement contained in this Agreement the preliminary prospectus, final prospectus, or any filing made in connection therewith or any amendment thereto which at the time and in light of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, circumstances under which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date)it was made contains a misrepresentation; (ii) any breach of order made or inquiry, investigation or proceedings commenced or threatened by any covenantapplicable Commission, obligation court or agreement of Purchaser other competent authority based upon any misrepresentation in this Agreement the preliminary prospectus, the final prospectus, or any of amendment thereto or based upon any failure to comply with applicable Securities Laws (other than any failure to comply with applicable Securities Laws by the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement Vendor or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Dateunderwriter or underwriters); and (iii) non-compliance by the Assumed Liabilities; (iv) the ownership, conduct and operation of the Restaurants by Purchaser arising from and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; (v) any and all claims and liabilities relating to any and all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or pursuant to applicable laws and regulations arising from and after the Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any of the obligations Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of “tenant” under any of the respective Assumed Real Property Leases relating foregoing insofar as (A) any information or statement referred to in clause (i) or (ii) of this subsection 8(e) has been furnished to the period of time arising from and after Purchaser by the Closing DateVendor or the underwriter or underwriters expressly for use therein; (viiB) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the use and operation completion of any sale in contravention of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents Vendor’s obligation to obtain the Purchaser’s prior written approval; or (D) any amounts paid in settlement of any claim have been paid if such settlement is effected without the prior written consent of the Demised Premises relating to the period of time arising from and after the Closing Date; and (viii) any and all claimsPurchaser, actions which consent shall not be unreasonably withheld or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datedelayed.

By Purchaser. PurchaserPurchaser may not encumber, subject to assign, delegate, or otherwise transfer this Agreement, in whole or in part, without the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold prior written consent of Seller, its affiliates and subsidiariesany such purported assignment, delegation or other transfer without such consent shall be void ab initio and of no effect; provided, however, that following the Closing, Purchaser may, without the prior written consent of Seller, assign, delegate, or otherwise transfer this Agreement, in whole or in part, only such that there are no more than two (2) assignees at any time, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to the extent arising by reason of or in connection with: only (i) any breach as part of any representation a sale of all or warranty substantially all of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed SellerPurchaser’s Contracts (from and after the Closing Date)business; (ii) any breach to an Affiliate of any covenant, obligation or agreement of Purchaser in this Agreement or any of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date)Purchaser; (iii) the Assumed Liabilitiesto a special purpose vehicle created to be bankruptcy remote and for financing purposes of Purchaser and its Affiliates; (iv) the ownershipto any successor by merger, conduct and by operation of Law, or in the Restaurants by event of a change of control of Purchaser arising from and after (including as a result of any change, directly or indirectly, in the Closing, including, without limitation, beneficial ownership of the voting securities of Purchaser’s operation under Seller’s licenses identified in Schedule 4.14); or (v) any and all claims and liabilities relating by way of a grant of a security interest therein to any and all a financial institution or other lender (with consent to foreclose thereon) subject to the conditions set forth in this Section 9.5(a). In the event of an assignment, delegation, or other transfer of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any and all claims and liabilities for wages, bonuses, unpaid and accrued vacation or sick days, severance or termination pay or benefits or obligations under this Agreement pursuant to applicable laws clauses (i) through (iv) (inclusive), the transferee under such assignment, delegation, or other transfer must (A) agree, in writing, for the benefit of Seller, to perform all such assigned obligations under this Agreement (and regulations arising from the corresponding obligations under the Escrow Agreement), and after to be bound by all the Closing Date; provisions of this Agreement (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any and of the obligations of Escrow Agreement) relating to such assigned obligations, as if such transferee were the “tenantPurchaser” under this Agreement (and under the respective Assumed Real Property Leases relating Escrow Agreement) (and Purchaser shall deliver a copy of such writing to Seller within five (5) Business Days following the period effectiveness of time arising from such assignment), and after (B) such transferee must be subject to confidentiality and non-use obligations at least as stringent as those set forth in Section 7.10. In the Closing Date; event of an assignment, delegation, or other transfer by Purchaser permitted under clause (viiv) (i.e., by way of a grant of a security interest), Purchaser shall (1) notify the use secured party that such secured party shall be bound by the applicable provisions of this Agreement (and operation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of the Demised Premises relating to the period of time arising from and after the Closing Date; Escrow Agreement) and (viii2) any use its commercially reasonable best efforts to ensure compliance with clauses (A) and all claims(B). In the event that, actions as a result of an assignment under this Section 9.5(a), there are two transferees as permitted under this Section 9.5(a), Purchaser (or proceedings the transferees, as applicable) shall designate one such transferee as the primary party with which Seller shall correspond for purposes of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datethis Agreement.