Common use of By Purchaser Clause in Contracts

By Purchaser. Purchaser agrees to indemnify and hold harmless Seller and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the "Seller Indemnified Persons") from and against any and all claims, losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with (i) 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 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 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 the engagement of counsel in connection therewith), at Purchaser's cost and 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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.

By Purchaser. The Purchaser agrees to indemnify indemnify, to the extent permitted by law, the Vendor and hold harmless Seller and its affiliateseach person who participates as an underwriter in the offering or sale of the Consideration Shares, and their respective shareholders, directors, officers, employees, successors, assigns, employees and agents and each Person who controls such underwriter (within the "Seller Indemnified Persons"meaning of any applicable Securities Laws) from and against any and all losses (excluding loss of profits), claims, losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees liabilities and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or based upon: (i) any information or statement contained in 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 circumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, investigation or proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any 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 Vendor or the underwriter or underwriters); and (iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) 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) of this subsection 8(e) has been furnished to the Purchaser by the Vendor or the underwriter or underwriters expressly for use therein; (B) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Purchaser Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to perform otherwise comply with applicable Securities Laws; (C) the completion of any act required under this Agreement sale in contravention of the Vendor’s obligation to obtain the Purchaser’s prior written approval; or (iiiD) 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 amounts paid in Section 7 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser settlement of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of have been paid if such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim settlement 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 the engagement of counsel in connection therewith), at Purchaser's cost and 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 effected 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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.

By Purchaser. Purchaser agrees hereby acknowledges that this Agreement is a contract to indemnify extend certain financial accommodations and hold harmless Seller is personal to Purchaser and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the "Seller Indemnified Persons") from and against any and all claims, losses, damages, liabilities, expenses Purchaser shall have no right to assign or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with (i) 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 to perform any act required under otherwise Transfer this Agreement or (iii) a claim by any third party with respect to any Liabilityof its rights, contract, other commitment benefits 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 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 obligations hereunder (including the engagement of counsel in connection therewith), at Purchaser's cost any representations and 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 warranties included herein) without the prior written consent of PurchaserSeller, 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 effectiveness of any such assignment, Purchaser shall not be unreasonably withheld notify Seller in writing of any such assignment at least ten (10) days prior to such 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 delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claimother Transfer, or if at attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any time Purchaser shall fail to defend in good faith any such claimof its right and obligations hereunder, Seller may assume the defense thereof and may employ counsel with respect thereto and all fees and expenses of such counsel shall be paid by PurchaserNULL AND VOID, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without 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, which consent 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 the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising 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 breach of the provisions hereof and such indemnification obligation shall be in addition to Seller's right to retain the Xxxxxxx Money and shall not be unreasonably withheld or delayedlimited by any provision elsewhere in this Agreement limiting the amount of damages which Seller is entitled to recover from Purchaser under this Agreement, including the limitations in Section 7.1(a).

By Purchaser. Purchaser agrees to indemnify and hold harmless Seller and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (In the "Seller Indemnified Persons") from and against any and all claims, losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement event of a termination of this AgreementAgreement pursuant to Section 8.1(b) by Purchaser, incurred by Seller by reason this Agreement shall forthwith become void and of or arising out of or in connection with (i) no effect other than as otherwise provided herein and there shall be no liability on the breach part of any representation or warranty contained herein or in any certificate or other document delivered party hereto; provided that the Deposit with accrued interest thereon shall be returned to Seller Purchaser (after notice and lapse of time as described below). If Purchaser has terminated this Agreement pursuant to the provisions of this Agreement, Section 8.1(b) (iiincluding the first and second provisos therein) the failure because of Purchaser 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 a representation or and warranty contained in Section 7 hereof 4.2 by Seller, Purchaser's sole remedy therefor shall be the return of the Deposit and accrued interest thereon. If Purchaser has terminated this Agreement because of a breach of a representation and warranty contained in Section 4.1 or of any obligation of Seller hereunder, Purchaser may pursue all its remedies provided in any certificate or other document delivered by or on behalf of Section 9.2. Purchaser to shall notify Seller that Purchaser has terminated this Agreement pursuant to Section 8.1(b) and specify the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim grounds 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 the engagement of counsel in connection therewith), at Purchaser's cost and expense, including the cost and expense of reasonable attorneys' fees in connection with such contest, defense, settlement or compromisetermination, and Seller shall have five (5) days after receipt of such notice to notify Purchaser that it disputes such termination, such notice to state the grounds for such dispute. If Seller does not so notify Purchaser that a dispute exists and the grounds therefor within such five (5) day period, Seller shall pay the Deposit and accrued interest thereon to Purchaser. If Seller sends such a notice of dispute to Purchaser within the five (5) day period, Seller shall continue to hold the Deposit in accordance with this Agreement until such time as the dispute has been resolved. The Deposit and accrued interest thereon shall then be disbursed in accordance with the resolution of the dispute. The successful party shall be reimbursed for all expenses, including reasonable attorneys' fees, incurred in connection with any successful action brought under this Section 8.2(c). Purchaser shall have no right to Consequential Damages. In no event shall Purchaser have the right to participate in the contest, defense, settlement offset amounts due it under this Section 8.2(c) or compromise under any other contract or agreement with Seller or any Affiliate 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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 delayedSeller.

By Purchaser. Purchaser agrees Purchaser, subject to indemnify the applicable Survival Period pursuant to Section 10.1 above, shall indemnify, defend and hold harmless Seller Seller, its affiliates and subsidiaries, and its affiliates, and their respective shareholdersofficers, directors, officersshareholders, employees, successorsagents, successors and assigns, and agents (the "Seller Indemnified Persons") harmless from and against any and all manner of obligations, suits, claims, actions, damages, charges, liabilities, losses, damagescosts or expenses (including, liabilitieswithout limitation, expenses or costs reasonable attorneys’ fees and costs) ("Losses"each an “Indemnifiable Loss”), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller to the extent arising by reason of or arising out of or in connection with with: (i) the any breach of any representation or warranty contained herein of Purchaser in this Agreement or in any certificate or other document delivered to Seller 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 provisions of this 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) the failure any breach of any covenant, obligation or agreement of Purchaser to perform any act required under 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) a claim 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 third party with respect and all claims and liabilities relating to any Liabilityand all of Purchaser’s Hired Employees arising from and after the Closing Date and other employees of Purchaser or its affiliates, contractincluding, 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 commitment 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 state of facts which constitutes a breach proceedings of any representation nature occurring or warranty contained in Section 7 hereof threatened against Purchaser or in any certificate or other document delivered by or on behalf of Purchaser Seller which relate to Seller pursuant to matters arising after the 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 the engagement of counsel in connection therewith), at Purchaser's cost and 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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 delayedClosing Date.

By Purchaser. Purchaser agrees to indemnify and hold harmless Seller and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the "“Seller Indemnified Persons"”) from and against any and all claims, losses, damages, liabilities, expenses or costs ("“Losses"”), plus reasonable attorneys' ’ fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with (i) 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 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 5 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the 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 11.29.2, then Seller shall control the contest, defense, settlement or compromise of any such claim (including the engagement of counsel in connection therewith), at Purchaser's ’s cost and 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; PROVIDEDprovided, HOWEVERhowever, 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; PROVIDEDprovided, HOWEVERhowever, 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.

By Purchaser. Effective upon the Closing, Purchaser agrees 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 indemnify and hold harmless Seller and its affiliatesincluding 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 terms of this Agreement, and Purchaser Release Parties, jointly and severally, for themselves and all of their respective shareholdersheirs, directors, officers, employees, successors, successors and assigns, hereby covenant and agents 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 of Seller Release Parties, by reason of or in connection with any of the foregoing matters, claims or causes of action. The foregoing release and covenant not to xxx shall not relate or apply to any of the 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 "Seller Indemnified Persons"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 foregoing release of claims; and against (D) 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, lossesdemand, damagesobligations, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement causes of this Agreement, incurred by Seller by reason of or action for damages arising out of or in connection with (i) the breach of any representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the provisions matter which may exist as of this Agreement, (ii) the failure date but which any of Purchaser Release Parties does not know or suspect to perform exist in their favor, for any act required under this Agreement reason, including ignorance, oversight, error, negligence, or (iii) a claim by any third party with respect otherwise, and which, if known, would or could affect their decision 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 provisions of enter into this Agreement. Seller agrees to give prompt notice to 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 claim for which Seller seeks indemnification hereunderstatute or common law ruling of any other jurisdiction, which notice shall include a reasonably detailed description of such claimPurchaser Release Parties understand provide or may be interpreted to provide 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, 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 the engagement of counsel in connection therewith), at Purchaser's cost and 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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 delayedWHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

By Purchaser. The Purchaser agrees to indemnify indemnify, to the extent permitted by law, the Vendors and hold harmless Seller and its affiliateseach person who participates as an underwriter in the offering or sale of the Consideration Shares, and their respective shareholders, directors, officers, employees, successors, assigns, employees and agents and each Person who controls such underwriter (within the "Seller Indemnified Persons"meaning of any applicable Securities Laws) from and against any and all losses (excluding loss of profits), claims, losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees liabilities and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or based upon: (i) any information or statement contained in 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 circumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, investigation or proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any 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 Vendors or the underwriter or underwriters); and (iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) 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) of this subsection 9(e)(i) has been furnished to the Purchaser by the Vendors or the underwriter or underwriters expressly for use therein pursuant to subsection 9(d)(i); (B) caused by the Vendors or any underwriter’s failure to deliver to a purchaser of Purchaser Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to perform otherwise comply with applicable Securities Laws; (C) the completion of any act required under this Agreement sale in contravention of the Vendors’ obligation to obtain the Purchaser’s prior written approval; or (iiiD) 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 amounts paid in Section 7 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser settlement of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of have been paid if such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim settlement 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 the engagement of counsel in connection therewith), at Purchaser's cost and 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 effected 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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.

By Purchaser. The Purchaser agrees to indemnify indemnify, to the extent permitted by law, the Vendor and hold harmless Seller and its affiliateseach person who participates as an underwriter in the offering or sale of the Consideration Shares, and their respective shareholders, directors, officers, employees, successors, assigns, employees and agents and each Person who controls such underwriter (within the "Seller Indemnified Persons"meaning of any applicable Securities Laws) from and against any and all losses (excluding loss of profits), claims, losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees liabilities and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or based upon: (i) any information or statement contained in 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 circumstances under which it was made contains a misrepresentation; (ii) any order made or inquiry, investigation or proceedings commenced or threatened by any applicable Commission, court or other competent authority based upon any misrepresentation in the preliminary prospectus, the final prospectus, or any 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 Vendor or the underwriter or underwriters); and (iii) non-compliance by the Purchaser with any of the Securities Laws in connection with the qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (A) any information or statement referred to in clause (i) 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) of this subsection 9(e)(i) has been furnished to the Purchaser by the Vendor or the underwriter or underwriters expressly for use therein pursuant to subsection 9(d)(i); (B) caused by the Vendor or any underwriter’s failure to deliver to a purchaser of Purchaser Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to perform otherwise comply with applicable Securities Laws; (C) the completion of any act required under this Agreement sale in contravention of the Vendor’s obligation to obtain the Purchaser’s prior written approval; or (iiiD) 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 amounts paid in Section 7 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser settlement of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of have been paid if such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim settlement 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 the engagement of counsel in connection therewith), at Purchaser's cost and 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 effected 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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.

By Purchaser. If prior to Closing, Purchaser agrees breaches in any ------------ material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove to indemnify be false in any material respect as of the date deemed to be made, then Seller shall be entitled to elect one of the following options: (a) terminate its obligation to sell and hold harmless Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller and its affiliatesshall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and their respective shareholdersretain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages for Purchaser's breach of this Agreement, directors, officers, employees, successors, assigns, and agents (the "Seller Indemnified Persons") from and against any and all claims, other claims for losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement of this Agreementbeing deemed waived hereby, incurred by Seller by reason of or arising out of or in connection with (i) provided however, 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 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 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 the engagement of counsel in connection therewith), at Purchaser's cost and expense, including the cost and expense recovery of reasonable attorneys' fees (whether incurred in connection with such contestnonjudicial action, defenseprior to trial or at trial, settlement including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or compromise(b) in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Money shall have be the right amount of damages to participate which Seller is entitled in such event and that the contestamount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, defense, settlement or compromise of any such claim at its own cost and expensethis Agreement, including the cost purchase and expense sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with such participation; PROVIDEDnonjudicial action, HOWEVERprior to trial or at trial, that Seller shall not settle or compromise including any such claim without proceedings under the prior written consent of PurchaserBankruptcy Code, which consent excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be unreasonably withheld or delayedlimited hereby. If Purchaser fails hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to assume do any of the defense of such claim within 30 days of receipt of notice of such claimforegoing), or if at then in any time Purchaser action brought thereon, the prevailing party shall fail be entitled to defend in good faith any such claim, Seller may assume the defense thereof and may employ counsel with respect thereto and all recover reasonable attorney's fees and expenses of (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such counsel amounts shall be paid by Purchaserin addition to retention of the Xxxxxxx Money, and Seller may conduct and defend if Purchaser is the prevailing party, such claim amounts shall be in such manner as it may deem 10 <PAGE> appropriate; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without addition to the prior written consent return of Purchaser, which consent shall not be unreasonably withheld or delayedthe Xxxxxxx Money by Seller.

By Purchaser. Neither this Agreement nor any of Purchaser’s rights, interests or obligations hereunder (including Purchaser’s rights in respect of the Purchased Receivables) may be assigned, delegated or otherwise transferred, in whole or in part, by operation of Law, merger, change of control, or otherwise, by Purchaser agrees without the prior written consent of Seller (such consent not to indemnify and hold harmless Seller and its affiliatesbe unreasonably withheld, delayed or conditioned), and their respective shareholdersany such purported assignment, directorsdelegation or transfer without such consent shall be void ab initio and of no effect; provided, officershowever, employeesthat following the Closing, successorsPurchaser may, assignsupon [***] prior written notice to Seller, and agents (but without the "Seller Indemnified Persons") from and against any prior written consent of Seller, assign this Agreement and all claimsof Purchaser’s rights, lossesinterests and obligations hereunder, damagesin whole, liabilitiesto an Affiliate of Purchaser or to a fund that is exclusively managed by Purchaser or by its Affiliate (in each case, expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with an “Affiliate Transferee”) if (i) the breach of any representation or warranty contained herein or such Affiliate Transferee agrees in any certificate or other document delivered a writing, in form and substance reasonably satisfactory to Seller pursuant Seller, to perform all obligations under, and to be bound by all the provisions of, this Agreement (including Section 6.11 and 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 failure Escrow Agent, to perform all obligations under, and to be bound by the provisions of, the Escrow Agreement as if such Affiliate Transferee were a “Purchaser” under the 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 perform any act required 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 or (iii) a claim by 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 third party 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 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 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, Purchased Receivables) 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 the engagement of counsel in connection therewith), at Purchaser's cost and expense, including the cost and expense of reasonable attorneys' fees in connection with such contest, defense, settlement or compromise, and language giving effect to such modifications as shall be agreed to by Seller shall have the right (such agreement of Seller not 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 withheld, delayed 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 fees and expenses of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; 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 delayedconditioned)).