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. Purchaser, subject Purchaser hereby represents and warrants 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: AER: (i) any breach of any representation or warranty of Purchaser in this Agreement or any has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion 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); courts in granting equitable remedies; (ii) Purchaser will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Securities, and it will not make any breach sale, transfer, or other disposition of any covenant, obligation or agreement the Securities in violation of Purchaser in this Agreement the Securities Act or any of applicable state securities laws (the Related Agreements (including all schedules "State Acts"). There will be placed on the Warrant and exhibits hereto and thereto and all certificatesany certificates for the Shares, 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), Conversion Shares and the Assumed Real Property Leases Warrant Shares, a legend stating in substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (from and after the Closing DateTHE "SECURITIES ACT") 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.OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE

By Purchaser. PurchaserPurchaser represents and warrants to Seller that, subject except as otherwise disclosed to Seller: Purchaser is a limited liability company duly organized, validly existing and in good standing under the applicable Survival Period pursuant laws of the State of Delaware, is authorized to Section 10.1 abovedo business in the State of California, shall indemnify, defend has duly authorized the execution and hold Seller, its affiliates and subsidiariesperformance of this Agreement, and its such execution, delivery, and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against performance will not violate 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 material term of any representation or warranty of its constitutive documents. Purchaser in this Agreement or any has not, and as of the Related Agreements Closing Purchaser shall not have (including all schedules and exhibits hereto and thereto and all certificatesa) made a general assignment for the benefit of creditors, documents, instruments and undertakings furnished pursuant to this Agreement (b) filed any voluntary petition in bankruptcy or suffered 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 filing 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 involuntary petition 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; creditors, (vc) any and all claims and liabilities relating suffered the appointment of a receiver to any and all take possession of all, or substantially all, of Purchaser’s Hired Employees arising from assets, which remains pending as of such time, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser’s assets, which remains pending as of such time, (e) admitted in writing its inability to pay its debts as they come due, or (f) made an offer of settlement, extension or composition to its creditors generally. Purchaser is not, and after as of the Closing Date shall not be, a “foreign person” as defined in Section 1445 of the Code and any related regulations. Purchaser is acting as principal in this transaction with authority to close the transaction. This Agreement is the valid and legally binding obligation of Purchaser. Purchaser is a sophisticated investor in commercial real estate and will perform such due diligence of the Property and its condition (financial and otherwise) as Purchaser deems appropriate. By theApproval Date, Purchaser shall have reviewed the Contracts, expenses 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 matters relating to the period Property and, based upon its own investigations, inspections, tests and studies, determined whether to purchase the Property and assume Seller’s rights and obligations under the Contracts and otherwise with respect to the Property. Unless otherwise disclosed to Seller in writing, neither Purchaser nor any principal in Purchaser is other than a citizen of, or partnership, corporation or other form of time arising from legal person domesticated in the United States of America. Neither Purchaser nor any principal of Purchaser who owns a 25% or greater direct or indirect ownership interest in Purchaser is a person or entity described by Section 1 of Executive Order 13,224, and after neither Purchaser nor any such principal of Purchaser engages in any dealings or transactions, or is otherwise associated, with any such persons or entities including the Closing Date; (vii) governments of Cuba, Iran, North Korea, Sudan, and Syria. Purchaser complies with the use applicable U.S. anti‑corruption and operation anti-bribery laws, including the United States Foreign Corruption Practices Act. The President of the Demised PremisesUnited States has issued Executive Order 13224, leasehold improvementsin conjunction with the Office of Foreign Assets Control (“OFAC”). This order bans any United States person from doing business with any person, other Purchased Assets and all other contents entity or group specially designated by the U.S. Secretary of State or Secretary of the Demised Premises relating Treasury as a terrorist or terrorist entity. OFAC maintains a list of these persons, entities and groups, known as the Specially Designated Nationals and Blocked Persons List (“SDN List”). Purchaser has not entered into contracts or other agreements with any person whose name appears on the SDN List. The execution, delivery and performance by Purchaser of its obligations under this Agreement do not and will not contravene or constitute a default under any provisions of applicable law or regulation or any agreement, judgment, injunction, order, decree or other instrument binding on Purchaser. Purchaser is entering into this transaction solely for commercial purposes, and is a sophisticated business entity with significant experience in purchasing real property similar to the period of time arising from Property located in the Napa Valley real estate market. Purchaser acknowledges that its representations and after warranties are a material inducement to Seller’s willingness to agree to enter into this transaction with Purchaser, and that but for the Closing Date; representations and (viii) any warranties contained in this paragraph, Seller would not execute and all claims, actions or proceedings of any nature occurring or threatened against Purchaser or Seller which relate to matters arising after the Closing Datedeliver this Agreement.

By Purchaser. Purchaser, subject Purchaser hereby represents and warrants 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: AER: (i) this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the courts in granting equitable remedies; (ii) Purchaser will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Securities, and it will not make any breach sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the "State Acts"). There will be placed on the Warrant and any certificates for the Shares, the Conversion Shares and the Warrant Shares, a legend stating in substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION. (iii) Purchaser, in offering to subscribe for the Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 1999 and AER's Quarterly Report on Form 10-Q for the quarter ended September 30, 2000. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act. (iv) Purchaser understands and acknowledges that an investment in the Securities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser's current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks. (v) Purchaser understands that no United States federal or state agency, or similar agency of any representation other country, has reviewed, approved, passed upon or warranty made any recommendation or endorsement of AER or the Securities. (vi) This Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), which reliance by its execution of this Agreement Purchaser hereby confirms. (vii) Purchaser understands that the Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to exemptions therefrom based in part upon the representations of Purchaser contained herein. (viii) Purchaser knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and sale of the Securities. (ix) Purchaser has reviewed with its tax advisors the U.S. federal, state, local and foreign tax consequences of an investment in the Securities and the transactions contemplated by this Agreement Agreement. Purchaser is relying solely on such advisors and not on any statements or representations of AER or any of the Related Agreements its agents and understands that Purchaser (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to not AER) shall be responsible for Purchaser's own tax liability that may arise as a result of this Agreement investment or the Related Agreements, but expressly excluding transactions contemplated by this Agreement. (x) Purchaser's acquisition of the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases Securities is not a transaction (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 element of a series of transactions) that is a part of a plan or scheme to evade the registration provisions 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 DateSecurities Act.

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 Time of Purchaser’s Hired Employees arising performance is of the essence of this Agreement. In the event Purchaser fails to make any payment required under this Agreement within five (5) days after notice from Seller that such payment is due, fails to close its purchase of the Unit when required herein, or to perform any other obligation of Purchaser under this Agreement and fails to cure such default within 10 days after notice from Seller specifying in reasonable detail such default, Seller may declare Purchaser to be in default of this Agreement by notice to Purchaser and may, in addition to exercising all other remedies available to Seller under this Agreement, at law, or in equity, terminate this Agreement. UPON SUCH TERMINATION, THE ENTIRE AMOUNT PAID BY PURCHASER UNDER THIS AGREEMENT, PLUS ANY INTEREST EARNED ON SUCH AMOUNT, MAY, AT SELLER’S SOLE OPTION, BE RELEASED TO SELLER AND RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. Seller’s election not to terminate this Agreement shall not preclude Seller from thereafter electing to terminate this Agreement and receive the entire amount paid by Purchaser under this Agreement, plus any interest earned thereon. Seller’s election regarding whether or not to retain such amounts as liquidated damages may be exercised arbitrarily and in Seller’s sole and absolute discretion. Without limitation of any other rights of Seller, in the event Purchaser fails to close this transaction at the scheduled closing, then closing may be extended at Seller’s option, for any number of days past the scheduled Closing Date as determined by Seller in Seller’s sole discretion (the “Extension Period”). As additional liquidated damages for the closing delay, that portion of the closing costs which Purchaser is obligated to pay shall be increased by $50.00 per day for each day of the Extension Period commencing on the scheduled Closing Date and other employees of Purchaser or its affiliates, including, without limitation, any continuing until 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 including the actual Closing Date; (vi) the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any . That portion of the obligations closing costs which Seller would otherwise have been obligated to pay shall be decreased by the same amount. At any time during the Extension Period, Seller may elect to require that the closing occur by giving Purchaser written notice of the date on which the closing must occur (the “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Revised Closing Date; (vii) ”). Seller’s remedies under this Section 4.2 are cumulative and may be pursued concurrently, independently, or successively, in any order whatsoever. The parties acknowledge the use difficulty of determining the actual damages resulting from a default by Purchaser under this Agreement and operation agree that the liquidated damages described in this Section 4.2 represent a reasonable estimate of the Demised Premises, leasehold improvements, other Purchased Assets such damages 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 Dateare not a penalty.

By Purchaser. Purchaser represents and warrants to Seller as follows: (1) Purchaser is duly organized, validly existing and in good standing under the laws of the State of Delaware, is authorized to do business in Texas, has duly authorized the execution and performance of this Agreement, and such execution and performance will not violate any material term of its organizational documents. (2) Purchaser is acting as principal in this transaction with authority to close the transaction. (3) 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. (4) Purchaser acknowledges that, subject by the Closing Date, Purchaser will have had sufficient opportunity to inspect the Property fully and completely at its expense in order to ascertain to its satisfaction the extent to which the Property complies with applicable zoning, building, environmental, health and safety and all other laws, codes and regulations. (5) Purchaser acknowledges that, by the Closing Date, Purchaser will have had sufficient opportunity to review the Leases, Property Contracts, the Diligence Items (as hereinafter defined) expenses and other matters relating to the applicable Survival Period pursuant Property in order to Section 10.1 abovedetermine, shall indemnifybased upon its own investigations, defend inspections, tests and hold studies, whether to purchase the Property and to assume Seller’s obligations under the Leases, its affiliates Property Contracts and subsidiariesotherwise with respect to the Property. Purchaser is experienced in and knowledgeable about the ownership and management of real estate, and it has relied and will rely exclusively on its and their respective officersown consultants, directorsadvisors, shareholderscounsel, employees, agents, successors principals and/or studies, investigations and/or inspections with respect to the Property, its condition, value and assignspotential. Purchaser agrees that, harmless notwithstanding the fact that it has received certain information from Seller or its agents or consultants, Purchaser has relied solely upon and against will continue to rely solely upon its own analysis and will not rely on any information provided by Seller or its agents or consultants, except as expressly set forth in Section 5.1 (6) Neither Purchaser nor any person, group, entity or nation that Purchaser is acting, directly or indirectly for, or on behalf of, is named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and all manner Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,” or is otherwise a banned or blocked person, group, entity, or nation pursuant to any law that is enforced or administered by the Office of obligationsForeign Assets Control, suitsand Purchaser is not engaging in this transaction, claimsdirectly or indirectly, actionson behalf of, damagesor instigating or facilitating this transaction, chargesdirectly or indirectly, liabilitieson behalf of, lossesany such person, costs group, entity or expenses (includingnation. Purchaser is not engaging in this transaction, without limitationdirectly or indirectly, reasonable attorneys’ fees in violation of any laws relating to drug trafficking, money laundering or predicate crimes to money laundering. None of the funds of Purchaser have been or will be derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Purchaser is prohibited by law or that the transaction or this Agreement is or will be in violation of law. Purchaser has and costs) (each an “Indemnifiable Loss”)will continue to implement procedures, and has consistently and will continue to consistently apply those procedures, to ensure 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 foregoing representations and warranties remain true and correct at all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant times prior 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. Purchaser(i) if Seller shall have breached in any material respect any of its representations, subject warranties, covenants or other agreements contained in this Agreement, which breach cannot be cured prior to the applicable Survival Period Termination Date or has not been cured within 30 days after the giving of written notice by Purchaser to Seller specifying such breach; (ii) if Seller or any of its directors or officers shall breach Section 6.6; (A) if Seller breaches its obligations under this Agreement by failing to call or hold the stockholders meeting in accordance with Section 6.6, (B) if the Board of Directors of Seller or any committee thereof shall withdraw or modify, or make any disclosure to the stockholders of Seller, whether or not permitted pursuant to Section 10.1 above6.6, that has the effect of withdrawing or modifying, its approval or recommendation of this Agreement, (C) if the Board of Directors of Seller or any committee thereof shall indemnifyapprove or recommend, defend and hold or make any disclosure to the stockholders of Seller, its affiliates and subsidiarieswhether or not permitted pursuant to Section 6.6, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all manner that has the effect of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs approving or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”)recommending, to the extent arising by reason stockholders of or in connection with: Seller an Acquisition Proposal, (iD) any breach if, after an Acquisition Proposal shall have been made public, the Board of any representation or warranty Directors of Purchaser in Seller fails to affirm its recommendation of this Agreement as promptly as practicable (but in any case within 5 Business Days) after any written request from Purchaser 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 E) if a tender offer or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms)exchange offer constituting an Acquisition Proposal is commenced, and the Assumed Real Property Leases (from and after Board of Directors of Seller fails to promptly recommend against acceptance of such offer by the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date); (ii) any breach stockholders of any covenant, obligation or agreement of Purchaser in this Agreement or any of the Related Agreements Seller (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant by taking no position with respect to this Agreement or the Related Agreements, but expressly excluding acceptance of such offer by the Franchise Agreements and Area Development Agreement, which shall be governed by their respective termsstockholders of Seller), 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; if any person shall have consummated a tender offer or an exchange offer or other transaction constituting an Acquisition Proposal; (v) any and all claims and liabilities relating if a condition under Section 8.1 or 8.2 to any and all Purchaser's obligations hereunder is incapable of Purchaser’s Hired Employees arising from and after being satisfied prior to 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 Termination Date; ; (vi) at any time prior to the Demised Premises by reason of Purchaser's failure to observe, perform or comply with any last day of the obligations of “tenant” under the respective Assumed Real Property Leases relating to the period of time arising from and after the Closing DateDue Diligence Period if it is not satisfied, in its sole discretion, with its due diligence investigation; or (vii) if the use Board of Directors of Purchaser shall not have approved this Agreement and operation the consummation of the Demised Premises, leasehold improvements, other Purchased Assets and all other contents of Transaction at 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 DateBoard Meeting.

By Purchaser. PurchaserPurchaser hereby acknowledges that this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer this Agreement or any of its rights, subject benefits or obligations hereunder (including any representations and warranties included herein) without the prior written consent of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the applicable Survival Period pursuant effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to Section 10.1 abovesuch assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, the Seller Parties harmless from and against any Liabilities, including special and all manner of obligations, suits, claims, actions, consequential 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 out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in connection with: (i) any breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the ▇▇▇▇▇▇▇ Money and shall not be limited by any representation or warranty of Purchaser provision elsewhere in this Agreement or any limiting the amount of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant damages which Seller is entitled to recover from Purchaser under this Agreement or the Related Agreements, but expressly excluding the Franchise Agreements and Area Development Agreement, which shall be governed by their respective termsincluding the limitations in Section 7.1(a), 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. Purchaser, subject Purchaser hereby represents and warrants 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 withAER: (i) any breach of any representation or warranty of Purchaser in this Agreement or any has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion 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)courts in granting equitable remedies; (ii) Purchaser will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Securities, and it will not make any breach sale, transfer, or other disposition of any covenant, obligation or agreement the Securities in violation of Purchaser in this Agreement the Securities Act or any of applicable state securities laws (the Related Agreements (including all schedules "State Acts"). There will be placed on the Warrant and exhibits hereto and thereto and all certificatesany certificates for the Shares, 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), Conversion Shares and the Assumed Real Property Leases Warrant Shares, a legend stating in substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (from and after the Closing DateTHE "SECURITIES ACT") and Assumed Seller’s Contracts OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (from and after the Closing Date); 5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION. (iii) Purchaser, in offering to subscribe for the Assumed Liabilities; Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2000 and AER's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act. (iv) Purchaser understands and acknowledges that an investment in the ownershipSecurities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, conduct which Purchaser acknowledges are currently illiquid and operation may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser's current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the Restaurants by investment in the Securities. Further, Purchaser arising from represents that Purchaser has no present need for liquidity in the Securities and after the Closing, including, without limitation, Purchaser’s operation under Seller’s licenses identified in Schedule 4.14; Purchaser is willing to accept such investment risks. (v) Purchaser understands that no United States federal or state agency, or similar agency of any and all claims and liabilities relating to other country, has reviewed, approved, passed upon or made any and all recommendation or endorsement of Purchaser’s Hired Employees arising from and after AER or 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; Securities. (vi) the Demised Premises This Agreement is made by reason of AER with Purchaser in reliance upon Purchaser's failure to observerepresentations and covenants made in this Section 3(b), perform or comply with any which reliance by its execution 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; this Agreement Purchaser hereby confirms. (vii) Purchaser understands that the use Securities have not been registered under the Securities Act or any State Acts and operation are being offered and sold pursuant to exemptions therefrom based in part upon the representations 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 Datecontained herein.

By Purchaser. Purchaser hereby represents and warrants for the benefit of Seller that: (a) Purchaser has the right, legal capacity, and authority to execute and deliver this Purchase Agreement and to consummate the transactions contemplated by this Purchase Agreement. This Purchase Agreement has been duly and validly executed and delivered by Purchaser, subject constitutes the valid legal and binding agreement of Purchaser, and is enforceable against Purchaser in accordance with its terms. No approval of any person or entity is required for the execution of this Purchase Agreement by Purchaser or the consummation of any of the transactions contemplated by this Purchase Agreement. (b) Purchaser has independently made its own analysis of the Loan and the Loan Documents based on such documents and information as it has deemed appropriate, and has independently decided to purchase the Loan and the Loan Documents on the terms and conditions set forth in this Purchase Agreement. Purchaser expressly acknowledges that Purchaser's acquisition of all of Seller's right, title and interest in and to the applicable Survival Period Loan and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis. (c) The Purchase Price and the terms and conditions of the acquisition are the result of arms'-length bargaining between the parties. (d) Purchaser will purchase the Loan and the Loan Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the Loan Documents by (i) Borrower, (ii) any assignee or transferee of Borrower, or (iii) any subsequent assignee or transferee of Borrower's rights and obligations under the Loan and the Loan Documents. (e) Closing of Purchaser's acquisition of the Loan and the Loan Documents is not contingent on the occurrence of any other matter or event including, without limitation, Purchaser obtaining any consent or approval or Purchaser's obtaining or otherwise qualifying for financing. (f) Purchaser agrees that if any of the representations and warranties made by Purchaser pursuant to Section 10.1 abovethis Purchase Agreement shall be determined to be false or incorrect, or if Purchaser shall fail to perform any of the obligations, conditions or agreements set forth in this Purchase Agreement, then Purchaser agrees to indemnify, defend and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, shareholders, employees, agents, successors and assigns, harmless Seller from and against any and all manner of obligations, suitsdamages, claims, actions, damages, charges, liabilities, losses, costs or expenses expenses, obligations and liabilities (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”), to limiting 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 generality of the Related Agreements (including all schedules and exhibits hereto and thereto and all certificatesforegoing, 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 wagestaxes and attorneys' fees suffered, bonuses, unpaid and accrued vacation directly 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 indirectly 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 DateSeller).

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. 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, subject Subject to the applicable Survival Period pursuant terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to Section 10.1 abovebe executed and delivered, 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 to Seller each of obligations, suits, claims, actions, damages, charges, liabilities, losses, costs the following documents (where the execution or expenses (including, without limitation, reasonable attorneys’ fees and costs) (each an “Indemnifiable Loss”delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the extent arising by reason following items (where the delivery of other items is contemplated) and take, or in connection with: cause to be taken, the following actions (where the taking of action is contemplated): (i) any breach of any representation or warranty of Purchaser in this Agreement or any payment 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, Purchase Price in immediately available funds which shall be governed wired to a bank account designated by their respective terms), and the Assumed Real Property Leases (from and after the Closing Date) and Assumed Seller pursuant to wire transfer instructions provided to Purchaser by 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 shall deposit $3,000,000 of the Related Agreements Purchase Price (including the “Inventory Escrow Amount”) in an escrow account to be held, safeguarded and released upon the receipt by Purchaser of substantially all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished of the Inventory pursuant to this Agreement or the Related Agreements, but expressly excluding terms of the Franchise Agreements and Area Development Escrow Agreement, which shall be governed by their respective terms)among Purchaser, Seller and the Assumed Real Property Leases Escrow Agent, in such form as the Parties shall mutually agree (from and after the Closing Date) and Assumed Seller’s Contracts (from and after the Closing Date“Escrow Agreement”); ; (iii) the Assumed Liabilities; Escrow Agreement, duly executed by Purchaser; (iv) the ownershipTransition Services Agreement, conduct and operation of the Restaurants duly executed 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 a certificate of the Secretary of State of the state of organization 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 dated not more than 10 days prior to applicable laws and regulations arising from and after the Closing Date; , as to the existence and good standing of Purchaser; (vi) the Demised Premises by reason a certificate, dated as 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, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; and (vii) the use and operation a certificate, dated as 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; , signed by a Responsible Officer of Purchaser certifying that the conditions set forth in Section 6.2(a) and (viii7.2(b) 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 Datehave been satisfied.

By Purchaser. Purchaser, subject Purchaser hereby represents and warrants 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: AER: (i) this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the courts in granting equitable remedies; (ii) Purchaser will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Securities, and it will not make any breach sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the "State Acts"). There will be placed on the Warrant and any certificates for the Shares, the Conversion Shares and the Warrant Shares, a legend stating in substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION. (iii) Purchaser, in offering to subscribe for the Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2000 and AER's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act. (iv) Purchaser understands and acknowledges that an investment in the Securities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser's current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks. (v) Purchaser understands that no United States federal or state agency, or similar agency of any representation other country, has reviewed, approved, passed upon or warranty made any recommendation or endorsement of AER or the Securities. (vi) This Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), which reliance by its execution of this Agreement Purchaser hereby confirms. (vii) Purchaser understands that the Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to exemptions therefrom based in part upon the representations of Purchaser contained herein. (viii) Purchaser knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and sale of the Securities. (ix) Purchaser has reviewed with its tax advisors the U.S. federal, state, local and foreign tax consequences of an investment in the Securities and the transactions contemplated by this Agreement Agreement. Purchaser is relying solely on such advisors and not on any statements or representations of AER or any of the Related Agreements its agents and understands that Purchaser (including all schedules and exhibits hereto and thereto and all certificates, documents, instruments and undertakings furnished pursuant to not AER) shall be responsible for Purchaser's own tax liability that may arise as a result of this Agreement investment or the Related Agreements, but expressly excluding transactions contemplated by this Agreement. (x) Purchaser's acquisition of the Franchise Agreements and Area Development Agreement, which shall be governed by their respective terms), and the Assumed Real Property Leases Securities is not a transaction (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 element of a series of transactions) that is a part of a plan or scheme to evade the registration provisions 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 DateSecurities Act.

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.