Common use of By Purchaser Clause in Contracts

By Purchaser. Purchaser shall be liable to and shall indemnify, defend and hold harmless Sears, and its Subsidiaries and Affiliates and their respective directors, officers and employees and permitted assigns from and against any Losses arising out of, connected with or resulting from following, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless (i) such Claim arises from any action of Purchaser taken at Sears’ direction; (ii) Sears modified the materials provided by Purchaser without Purchaser’s prior written consent; or (iii) Sears failed to follow Purchaser’s instructions with respect to the materials provided by Purchaser, (B) services provided by Purchaser in connection with the Program or (C) the use by Sears of the Licensed Purchaser Marks.

By Purchaser. Purchaser shall 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 liable to and shall indemnifyassigned, defend and hold harmless Searsdelegated or otherwise transferred, and its Subsidiaries and Affiliates and their respective directorsin whole or in part, officers and employees and permitted assigns from and against any Losses arising out ofby operation of Law, connected with merger, change of control, or resulting from following, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to actotherwise, by Purchaser without the prior written consent of Seller (such consent not to be unreasonably withheld, delayed or its Affiliates conditioned), and any such purported assignment, delegation or any transfer without such consent shall be void ab initio and of their respective employeesno effect; provided, officershowever, directorsthat following the Closing, shareholders Purchaser may, upon [***] prior written notice to Seller, but without the prior written consent of Seller, assign this Agreement and all of Purchaser’s rights, interests and obligations hereunder, in whole, to an Affiliate of Purchaser or agents hired to a fund that is exclusively managed by Purchaser or by its Affiliates relating to Affiliate (in each case, an Account or an Accounts Receivable; (c“Affiliate Transferee”) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless if (i) such Claim arises from any action Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller, to perform all obligations under, and to be bound by all the provisions of, this Agreement (including Section 6.11 and each of Purchaser taken at Sears’ direction; 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) Sears modified such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller and the materials provided Escrow Agent, to perform all obligations under, and to be bound by Purchaser without the provisions of, the Escrow Agreement as if such Affiliate Transferee were a “Purchaser’s prior written consent; or ” under the Escrow Agreement, (iii) Sears failed such Affiliate Transferee’s creditworthiness (after giving effect to follow such assignment) is at least as favorable to Seller as that of Purchaser at the time of such assignment and (iv) such Affiliate Transferee represents and warrants to Seller that each of the representations and warranties set forth in Article V (including those set forth in Section 5.10) are true and correct as of the date of such assignment as if such Affiliate Transferee were the “Purchaser” under this Agreement (with such modifications to Section 5.1 and the first sentence of Section 5.10 as are necessary to account for such Affiliate Transferee’s instructions entity type and jurisdiction of organization (but, in any event, the first sentence of Section 5.10 shall confirm that such Affiliate Transferee is exempt from United States federal withholding tax on all payments with respect to the materials provided Purchased Receivables) and with such language giving effect to such modifications as shall be agreed to by PurchaserSeller (such agreement of Seller not to be unreasonably withheld, (B) services provided by Purchaser in connection with the Program delayed or (C) the use by Sears of the Licensed Purchaser Marksconditioned)).

By Purchaser. Purchaser hereby makes the following representations and warranties to Seller as of the Effective Date, which representations and warranties shall be liable deemed to have been made again as of the Closing, subject to Section 8.3.5 hereof: 7.2.1. Purchaser is a limited liability company duly organized and shall indemnifyvalidly existing under the laws of the State of Delaware and is qualified to do business in the State of Texas. 7.2.2. The execution of this Agreement, defend and hold harmless Searsthe consummation of the transactions herein contemplated, and its Subsidiaries the performance or observance of the obligations of Purchaser hereunder have been duly authorized by requisite action and Affiliates and are enforceable against Purchaser in accordance with their respective directors, officers and employees and permitted assigns from and against any Losses arising out of, connected with or resulting from following, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees terms. The individuals executing this Agreement on behalf of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates are authorized to act for and on behalf of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates and to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by bind Purchaser in connection with this Agreement and Purchaser has obtained all necessary consents to perform its obligations under this Agreement and acquire the ProgramProperty from Seller at Closing. 7.2.3. Purchaser has received no written notice of any action, unless suit or proceeding against Purchaser in any court or by or before any other Governmental Entity (i) such Claim arises from any action which, if adversely determined, would materially and adversely affect the ability of Purchaser taken at Sears’ direction; (iito consummate the transactions contemplated by this Agreement and the Lease, and/or to perform its obligations under this Agreement and/or the Lease) Sears modified and, no such action, suit or proceeding is pending, or to the materials provided by current actual knowledge of Purchaser, overtly threatened. 7.2.4. The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance and observance of the obligations of Purchaser without Purchaser’s prior written consent; hereunder and under any and all other agreements and instruments herein mentioned to which Purchaser is a party will not conflict with or (iii) Sears failed result in the breach of any agreement or instrument to follow Purchaser’s instructions which Purchaser is now a party or to which it is subject, or constitute a default thereunder, does not require Purchaser to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties and, to Purchaser’s current actual knowledge, will not conflict with or result in the materials provided breach of any law or regulation, order, writ, injunction, or decree of any court or governmental instrumentality. 7.2.5. No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws is pending against or contemplated by Purchaser, (B) services provided . 7.2.6. Neither Purchaser nor any individual or entity having an interest in Purchaser is a person or entity described by Purchaser in connection with the Program or (C) the use by Sears Section 1 of the Licensed Purchaser MarksExecutive Order (No. 13,224) Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001), and does not engage in any dealings or transactions, and is not otherwise associated, with any such persons or entities.

By Purchaser. Purchaser shall be liable agrees to and shall indemnify, defend indemnify and hold harmless Sears, Seller and its Subsidiaries and Affiliates affiliates, and their respective shareholders, directors, officers officers, employees, successors, assigns, and employees and permitted assigns agents (the “Seller Indemnified Persons”) from and against any Losses arising out ofand all claims, connected with losses, damages, liabilities, expenses or resulting from followingcosts (“Losses”), to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products plus reasonable attorneys’ fees and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made 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 Program; (d) breach of any material breach by Purchaser or its Affiliates of a covenant, representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the Merchant Agreement or the Licensing provisions of this Agreement; , (eii) the failure of Purchaser or its Affiliates to comply with perform any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless (i) such Claim arises from any action of Purchaser taken at Sears’ direction; (ii) Sears modified the materials provided by Purchaser without Purchaser’s prior written consent; act required under this Agreement or (iii) Sears failed to follow Purchaser’s instructions a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 5 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the materials provided provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser under this Section 9.2, then Seller shall control the contest, defense, settlement or compromise of any such claim (including 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, (B) services provided by Purchaser and Seller may conduct and defend such claim in connection with such manner as it may deem appropriate; provided, however, that Seller shall not settle or compromise any such claim without the Program prior written consent of Purchaser, which consent shall not be unreasonably withheld or (C) the use by Sears of the Licensed Purchaser Marksdelayed.

By Purchaser. Purchaser shall be liable agrees to and shall indemnify, defend indemnify and hold harmless Sears, Seller and its Subsidiaries and Affiliates affiliates, and their respective shareholders, directors, officers officers, employees, successors, assigns, and employees and permitted assigns agents (the "Seller Indemnified Persons") from and against any Losses arising out ofand all claims, connected with losses, damages, liabilities, expenses or resulting from followingcosts ("Losses"), to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products plus reasonable attorneys' fees and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made 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 Program; (d) breach of any material breach by Purchaser or its Affiliates of a covenant, representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the Merchant Agreement or the Licensing provisions of this Agreement; , (eii) the failure of Purchaser or its Affiliates to comply with perform any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless (i) such Claim arises from any action of Purchaser taken at Sears’ direction; (ii) Sears modified the materials provided by Purchaser without Purchaser’s prior written consent; act required under this Agreement or (iii) Sears failed to follow Purchaser’s instructions 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 materials provided 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, (B) services provided by Purchaser and Seller may conduct and defend such claim in connection with such manner as it may deem 10 <PAGE> appropriate; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without the Program prior written consent of Purchaser, which consent shall not be unreasonably withheld or (C) the use by Sears of the Licensed Purchaser Marksdelayed.

By Purchaser. Purchaser shall be liable To induce Seller to accept the delivery of this Agreement, to sell, transfer and shall indemnify, defend and hold harmless Searsassign Seller’s Percentage Interest, and give the releases herein, Purchaser hereby represents and warrants the following to Seller, on the Effective Date hereof and at the time of such delivery: 4.2.1 Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the state of its Subsidiaries organization and Affiliates has all requisite corporate power and their respective directorsauthority to own, officers lease and employees use the Assets owned, leased or used by it and permitted assigns from to conduct its business as presently conducted. 4.2.2 Purchaser has all requisite power and against any Losses arising out of, connected with or resulting from followingauthority to execute and deliver, to perform its obligations under, and to consummate the extent not caused by any act or omission of Sears or its Affiliates: (a) any products transactions contemplated by, this Agreement and services offered by Purchaser all other documents and its Subsidiaries instruments to be executed and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made delivered in connection with the Program; transactions contemplated by this Agreement (dcollectively, the “Transaction Documents”) any material breach to which Purchaser is a party. The execution and delivery by Purchaser of, the performance by Purchaser of its obligations under, and the consummation by Purchaser of the transactions contemplated by, this Agreement and the Transaction Documents to which Purchaser is a party have been duly and validly authorized by all necessary action by or its Affiliates on behalf of a covenantPurchaser. This Agreement has been, representation and when executed and delivered by Seller the Transaction Documents will be, duly and validly executed and delivered by Purchaser and the valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or warranty herein similar laws now or hereafter in effect relating to the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies. 4.2.3 Since June 30, 2006 (a) the Company has not incurred any non-ordinary course obligation or liability, the performance of which would be reasonably likely, individually or in the Merchant Agreement aggregate, to have a Material Adverse Effect, (b) there has not been any event or circumstance which, individually or in the Licensing Agreement; aggregate, would reasonably be expected to have a Material Adverse Effect, and (ec) the failure Company’s business has been conducted only in the Ordinary Course of Business. 4.2.4 Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless (i) such Claim arises from understands that Seller’s Percentage Interest being purchased herein has not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or under any action state securities law or Blue Sky Law of Purchaser taken at Sears’ directionany jurisdiction (“Blue Sky Law”) and that Seller’s Percentage Interest is being offered and sold in reliance upon federal and State exemptions for transactions not involving a public offering; (ii) Sears modified has had the materials provided by Purchaser without Purchaseropportunity to obtain information as desired in order to evaluate the merits and risks inherent in holding Seller’s prior written consentPercentage Interest; or (iii) Sears failed is able to follow Purchaserbear the economic risk in holding Seller’s instructions Percentage Interest; and (iv) is acquiring Seller’s Percentage Interest solely for investment and not with respect a view to the materials provided by Purchaser, (Bdistribution or resale thereof. The term “solely for investment” used in this Section has the meaning given to that term for purposes of determining the availability of an exemption from registration under Section 4(2) services provided by Purchaser in connection with the Program or (C) the use by Sears of the Licensed Securities Act. Further, Purchaser Markswill not sell, assign, transfer or otherwise dispose of Seller’s Percentage Interest being acquired herein without registration under the Securities Act and under applicable Blue Sky Law unless an exemption from registration thereunder is available.

By Purchaser. Purchaser may not encumber, assign, delegate, or otherwise transfer this Agreement, in whole or in part, without the prior written consent of Seller, and any such purported assignment, delegation or other transfer without such consent shall be liable to void ab initio and shall indemnifyof no effect; provided, defend and hold harmless Searshowever, that following the Closing, Purchaser may, without the prior written consent of Seller, assign, delegate, or otherwise transfer this Agreement, in whole or in part, only such that there are no more than two (2) assignees at any time, and its Subsidiaries and Affiliates and their respective directors, officers and employees and permitted assigns from and against any Losses arising out of, connected with or resulting from following, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless only (i) such Claim arises from any action as part of Purchaser taken at Sears’ directiona sale of all or substantially all of Purchaser’s business; (ii) Sears modified to an Affiliate of Purchaser; (iii) to a special purpose vehicle created to be bankruptcy remote and for financing purposes of Purchaser and its Affiliates; (iv) to any successor by merger, by operation of Law, or in the materials provided by event of a change of control of Purchaser without (including as a result of any change, directly or indirectly, in the beneficial ownership of the voting securities of Purchaser’s prior written consent); or (iiiv) Sears failed by way of a grant of a security interest therein to follow a financial institution or other lender (with consent to foreclose thereon) subject to the conditions set forth in this Section 9.5(a). In the event of an assignment, delegation, or other transfer of Purchaser’s instructions with respect obligations under this Agreement pursuant to clauses (i) through (iv) (inclusive), the materials provided transferee under such assignment, delegation, or other transfer must (A) agree, in writing, for the benefit of Seller, to perform all such assigned obligations under this Agreement (and the corresponding obligations under the Escrow Agreement), and to be bound by all the provisions of this Agreement (and of the Escrow Agreement) relating to such assigned obligations, as if such transferee were the “Purchaser” under this Agreement (and under the Escrow Agreement) (and Purchaser shall deliver a copy of such writing to Seller within five (5) Business Days following the effectiveness of such assignment), and (B) services provided such transferee must be subject to confidentiality and non-use obligations at least as stringent as those set forth in Section 7.10. In the event of an assignment, delegation, or other transfer by Purchaser in connection with permitted under clause (v) (i.e., by way of a grant of a security interest), Purchaser shall (1) notify the Program or secured party that such secured party shall be bound by the applicable provisions of this Agreement (C) the use by Sears and of the Licensed Escrow Agreement) and (2) use its commercially reasonable best efforts to ensure compliance with clauses (A) and (B). In the event that, as a result of an assignment under this Section 9.5(a), there are two transferees as permitted under this Section 9.5(a), Purchaser Marks(or the transferees, as applicable) shall designate one such transferee as the primary party with which Seller shall correspond for purposes of this Agreement.

By Purchaser. The Purchaser shall be liable agrees to and shall indemnify, defend to the extent permitted by law, the Vendor and hold harmless Searseach person who participates as an underwriter in the offering or sale of the Consideration Shares, and its Subsidiaries and Affiliates and their respective directors, officers and officers, employees and permitted assigns from agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against any Losses all losses (excluding loss of profits), claims, damages, liabilities and expenses arising out ofof or based upon: (i) any information or statement contained in the preliminary prospectus, connected with final prospectus, or resulting from followingany 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, to the extent not caused investigation or proceedings commenced or threatened by any act applicable Commission, court or omission of Sears or its Affiliates: (a) other competent authority based upon any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to actmisrepresentation in the preliminary prospectus, by Purchaser or its Affiliates 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 their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made the Securities Laws in connection with the Program; qualification and the distribution effected thereunder, except in the case of any of the foregoing insofar as (dA) any material breach by Purchaser information or its Affiliates statement referred to in clause (i) or (ii) of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; this subsection (e) has been furnished to the Purchaser by the Vendor or the underwriter or underwriters expressly for use therein pursuant to subsection (e); (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 its Affiliates any amendments or supplements thereto or to otherwise comply with any Laws applicable to Purchaser or its AffiliatesSecurities Laws; or (fC) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation the completion of any third party Intellectual Property arising from (A) sale in contravention of the materials provided by Purchaser in connection with Vendor’s obligation to obtain the Program, unless (i) such Claim arises from any action of Purchaser taken at Sears’ direction; (ii) Sears modified the materials provided by Purchaser without Purchaser’s prior written consentapproval; or (iiiD) Sears failed to follow Purchaser’s instructions with respect to any amounts paid in settlement of any claim have been paid if such settlement is effected without the materials provided by prior written consent of the Purchaser, (B) services provided by Purchaser in connection with the Program which consent shall not be unreasonably withheld or (C) the use by Sears of the Licensed Purchaser Marksdelayed.

By Purchaser. Effective upon the Closing, Purchaser shall be liable to Release Parties do hereby remise, release, acquit, waive, satisfy and shall indemnifyforever discharge Seller Release Parties from any and all manner of debts, defend accountings, bonds, warranties, representations, covenants, promises, contracts, controversies, agreements, liabilities, obligations, expenses, damages, judgments, executions, objections, defenses, setoffs, actions, claims, demands and hold harmless Searscauses of action of any nature whatsoever, and its Subsidiaries and Affiliates and their respective directorswhether at law or in equity, officers and employees and permitted assigns from and against any Losses arising out ofwhether known or unknown, connected with either now accrued or resulting from followinghereafter maturing, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by which Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to actRelease Parties, by Purchaser or its Affiliates or any of their respective employeesthem, officersnow or hereafter can, directorsshall or may have by reason of any matter, shareholders cause or agents hired by Purchaser or its Affiliates relating thing from the beginning of the world to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees and including the date of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenantthis Agreement, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim 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 heirs, successors and assigns, hereby covenant and agree never to institute or cause to be instituted or continue prosecution of any infringement, inducement of infringement, dilution, misappropriation suit or other violation form of action or proceeding of any third party Intellectual Property arising from 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 materials provided by Purchaser in connection with the Programclaims, unless (i) such Claim arises from any matters, or causes of action of Purchaser taken at Sears’ directionreleased herein; (iiB) Sears modified this waiver and release is voluntary and without any duress or undue influence, and is given as part of the materials provided by Purchaser without Purchaser’s prior written consentconsideration for this Agreement; (C) it may hereafter discover facts different from or (iii) Sears failed in addition to follow Purchaser’s instructions those, which it now believes to be true with respect to the materials provided by Purchaser, foregoing release of claims; and (B) services provided by Purchaser in connection with the Program or (CD) the use by Sears 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, demand, obligations, or causes of action for damages arising out of any matter which may exist as of this date but which any of Purchaser Release Parties does not know or suspect to exist in their favor, for any reason, including ignorance, oversight, error, negligence, or otherwise, and which, if known, would or could affect their decision to enter into this Agreement. Each of Purchaser Release Parties expressly waives all rights under Section 1542 of the Licensed Civil Code of the State of California and all other similar provisions of any statute or common law ruling of any other jurisdiction, which Purchaser MarksRelease 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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

By Purchaser. Purchaser hereby makes the following representations and warranties to Seller as of the Effective Date, which representations and warranties shall be liable deemed to have been made again as of the Closing, subject to Section 8.3.5 hereof: 7.2.1. Purchaser is a limited liability company duly organized and shall indemnifyvalidly existing under the laws of the State of Delaware and is qualified to do business in the State of Texas. 7.2.2. The execution of this Agreement, defend and hold harmless Searsthe consummation of the transactions herein contemplated, and its Subsidiaries the performance or observance of the obligations of Purchaser hereunder have been duly authorized by requisite action and Affiliates and are enforceable against Purchaser in accordance with their respective directors, officers and employees and permitted assigns from and against any Losses arising out of, connected with or resulting from following, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees terms. The individuals executing this Agreement on behalf of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates are authorized to act for and on behalf of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates and to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by bind Purchaser in connection with this Agreement and Purchaser has obtained all 14 necessary consents to perform its obligations under this Agreement and acquire the ProgramProperty from Seller at Closing. 7.2.3. Purchaser has received no written notice of any action, unless suit or proceeding against Purchaser in any court or by or before any other Governmental Entity (i) such Claim arises from any action which, if adversely determined, would materially and adversely affect the ability of Purchaser taken at Sears’ direction; (iito consummate the transactions contemplated by this Agreement and the Lease, and/or to perform its obligations under this Agreement and/or the Lease) Sears modified and, no such action, suit or proceeding is pending, or to the materials provided by current actual knowledge of Purchaser, overtly threatened. 7.2.4. The execution of this Agreement, the consummation of the transactions herein contemplated, and the performance and observance of the obligations of Purchaser without Purchaser’s prior written consent; hereunder and under any and all other agreements and instruments herein mentioned to which Purchaser is a party will not conflict with or (iii) Sears failed result in the breach of any agreement or instrument to follow Purchaser’s instructions which Purchaser is now a party or to which it is subject, or constitute a default thereunder, does not require Purchaser to obtain any consents or approvals from, or the taking of any other actions with respect to any third parties and, to Purchaser’s current actual knowledge, will not conflict with or result in the materials provided breach of any law or regulation, order, writ, injunction, or decree of any court or governmental instrumentality. 7.2.5. No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws is pending against or contemplated by Purchaser, (B) services provided . 7.2.6. Neither Purchaser nor any individual or entity having an interest in Purchaser is a person or entity described by Purchaser in connection with the Program or (C) the use by Sears Section 1 of the Licensed Purchaser MarksExecutive Order (No. 13,224) Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001), and does not engage in any dealings or transactions, and is not otherwise associated, with any such persons or entities.

By Purchaser. The Purchaser shall be liable agrees to and shall indemnify, defend to the extent permitted by law, the Vendor and hold harmless Searseach person who participates as an underwriter in the offering or sale of the Consideration Shares, and its Subsidiaries and Affiliates and their respective directors, officers and officers, employees and permitted assigns from agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against any Losses all losses (excluding loss of profits), claims, damages, liabilities and expenses arising out ofof or based upon: (i) any information or statement contained in the preliminary prospectus, connected with final prospectus, or resulting from followingany 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, to the extent not caused investigation or proceedings commenced or threatened by any act applicable Commission, court or omission of Sears or its Affiliates: (a) other competent authority based upon any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to actmisrepresentation in the preliminary prospectus, by Purchaser or its Affiliates 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 their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made the Securities Laws in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenantqualification and the distribution effected thereunder, representation or warranty herein or except in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation case of any third party Intellectual Property arising from of the foregoing insofar as (A) the materials provided by Purchaser any information or statement referred to in connection with the Program, unless clause (i) such Claim arises from any action of Purchaser taken at Sears’ direction; or (ii) Sears modified of this subsection 8(e) has been furnished to the materials provided Purchaser by Purchaser without 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 Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendor’s obligation to obtain the Purchaser’s prior written consentapproval; or (iiiD) Sears failed to follow Purchaser’s instructions with respect to any amounts paid in settlement of any claim have been paid if such settlement is effected without the materials provided by prior written consent of the Purchaser, (B) services provided by Purchaser in connection with the Program which consent shall not be unreasonably withheld or (C) the use by Sears of the Licensed Purchaser Marksdelayed.

By Purchaser. The Purchaser shall be liable agrees to and shall indemnify, defend to the extent permitted by law, the Vendor and hold harmless Searseach person who participates as an underwriter in the offering or sale of the Consideration Shares, and its Subsidiaries and Affiliates and their respective directors, officers and officers, employees and permitted assigns from agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against any Losses all losses (excluding loss of profits), claims, damages, liabilities and expenses arising out ofof or based upon: (i) any information or statement contained in the preliminary prospectus, connected with final prospectus, or resulting from followingany 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, to the extent not caused investigation or proceedings commenced or threatened by any act applicable Commission, court or omission of Sears or its Affiliates: (a) other competent authority based upon any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to actmisrepresentation in the preliminary prospectus, by Purchaser or its Affiliates 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 their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made the Securities Laws in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenantqualification and the distribution effected thereunder, representation or warranty herein or except in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation case of any third party Intellectual Property arising from of the foregoing insofar as (A) the materials provided by Purchaser any information or statement referred to in connection with the Program, unless clause (i) such Claim arises from any action of Purchaser taken at Sears’ direction; or (ii) Sears modified of this subsection 9(e)(i) has been furnished to the materials provided Purchaser by Purchaser without 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 Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendor’s obligation to obtain the Purchaser’s prior written consentapproval; or (iiiD) Sears failed to follow Purchaser’s instructions with respect to any amounts paid in settlement of any claim have been paid if such settlement is effected without the materials provided by prior written consent of the Purchaser, (B) services provided by Purchaser in connection with the Program which consent shall not be unreasonably withheld or (C) the use by Sears of the Licensed Purchaser Marksdelayed.

By Purchaser. To the fullest extent permitted by law, Purchaser shall be liable to and shall will indemnify, defend and hold harmless Searseach Executing Shareholder, and its Subsidiaries and Affiliates and their respective directors, officers and employees and permitted assigns from and against any Losses arising out of, connected with or resulting from following, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders agents and employees of each of them, each person who controls any Executing Shareholder within the meaning of Section 15 of the Securities Act or Section 12 of the Exchange Act, and the officers, directors, agents hired and employees of each such controlling person, against any losses, claims, damages, or liabilities (joint or several) to which such Executing Shareholder may become subject under the Securities Act, the Exchange Act, other U.S. federal or state law or otherwise, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”): (A) any untrue statement or alleged untrue statement of a material fact contained in a registration statement filed by Purchaser pursuant to this Section 7.03 pursuant to which Closing Consideration Shares are sold, including any preliminary prospectus or its Affiliates relating to an Account final prospectus contained therein or an Accounts Receivableany amendments or supplements thereto; (cB) the omission or alleged omission to state in such registration statement, preliminary prospectus or final prospectus or any amendments or supplements thereto, a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (C) any misrepresentation violation or unauthorized representation to third parties alleged violation by employees Purchaser of Purchaser the Securities Act, the Exchange Act, any U.S. federal or its Affiliates made state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any U.S. federal or state securities law in connection with the Program; (doffering of Closing Consideration Shares covered by such registration statement; provided, however, that the indemnity agreement contained in this Section 7.03(e)(i) shall not apply to amounts paid in settlement of any material breach by such loss, claim, damage, liability or action if such settlement is effected without the prior written consent of Purchaser, nor shall Purchaser be liable in any such case for any such loss, claim, damage, liability or its Affiliates of a covenant, representation or warranty herein or in action to the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising extent that it arises out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with the Program, unless (i) such Claim arises from registration by such Holder or as result of any action of Purchaser taken at Sears’ direction; (ii) Sears modified the materials provided violation or alleged violation by Purchaser without Purchaser’s prior written consent; or (iii) Sears failed to follow Purchaser’s instructions with respect to the materials provided by Purchaser, (B) services provided by Purchaser in connection with the Program or (C) the use by Sears a Selling Shareholder of the Licensed Purchaser MarksSecurities Act, the Exchange Act, any U.S. federal or state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any U.S. federal or state securities law.

By Purchaser. (a) Subject to subsections (b) and (c) of this Section 7.02, Purchaser shall indemnify and hold Parent, the Seller, and their Affiliates, officers, directors, employees, agents, successors, and assigns, and related entities from, and reimburse them for, Indemnified Costs arising or resulting from: (i) any breach of any representation or warranty made by Purchaser in this Agreement; (ii) Purchaser’s breach of or failure to perform any of its covenants or agreements contained in or made pursuant to this Agreement (except to the extent clauses (iii) or (iv) shall apply); (iii) any loss, cost, demand, assessment, expense, damage, liability, fine, penalty or claim relating to the Sold Assets and accruing on or after the Funding Date; (iv) the ownership, possession, control, use, maintenance, leasing or operation of the Sold Assets or the financing, sale, transfer or assignment of the Sold Assets, in each case from and after the Funding Date, including any liability arising under Tax, securities or other Applicable Laws in connection with the ownership, possession, control, use, maintenance, leasing, operation, financing, sale, transfer or assignment of the Sold Assets. (b) Notwithstanding the foregoing, the Purchaser shall have no liability to the extent that the Parent, the Seller or any Affiliate thereof realizes a Tax Benefit which is directly attributable to such Indemnified Cost on or before the fourth anniversary of the Funding Date or receives insurance or other recovery in respect of an Indemnified Cost. In addition, notwithstanding the foregoing, the Purchaser shall have no liability to the extent that any Indemnified Cost is caused by or arises from any non-compliance with or breach of any covenant or agreement of Parent, Seller or any Affiliate thereof (including CAI) contained in the Management Agreement. (c) Notwithstanding the foregoing, Purchaser shall have no liability for indemnification pursuant to Section 7.02(a)(i) or (ii) unless the aggregate of all Indemnified Costs under Section 7.02(a)(i) or (ii) for which Purchaser would, but for this subsection (c), be liable exceeds on a cumulative basis an amount equal to one million Dollars ($1,000,000), in which case Purchaser’s liability shall be only for such excess, nor shall Purchaser be liable for any such Indemnified Costs that, when added to the amounts that Purchaser has otherwise paid pursuant to Section 7.02(a)(i) or (ii), exceed the amount of seventy-five million Dollars ($75,000,000). Purchaser shall not be liable to pay Indemnified Costs more than once with respect to an Indemnified Cost resulting from the same facts, events or circumstances, even if such facts, events or circumstances constitute both an Assumed Liability and a breach of any representations and warranties for which Purchaser shall or would but for this provision be obligated to pay Indemnified Costs hereunder, provided, however, Purchaser shall be liable to and shall indemnifypay for Indemnified Costs that arise out of the same facts, defend and hold harmless Sears, and its Subsidiaries and Affiliates and their respective directors, officers and employees and permitted assigns from and against any Losses arising out of, connected with events or circumstances when the Indemnified Costs resulting from followingsuch facts, events or circumstances that are not duplicative or result in damages, costs or liabilities that were not indemnified pursuant to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless (i) first such Claim arises from any action of Purchaser taken at Sears’ direction; (ii) Sears modified the materials provided by Purchaser without Purchaser’s prior written consent; or (iii) Sears failed to follow Purchaser’s instructions with respect to the materials provided by Purchaser, (B) services provided by Purchaser in connection with the Program or (C) the use by Sears of the Licensed Purchaser Marksindemnification payment.

By Purchaser. To the extent allowed by law, the Purchaser shall be liable to and shall release, defend, indemnify, defend and hold the Seller harmless Sears, and its Subsidiaries and Affiliates and their respective directors, officers and employees and permitted assigns from and against any Losses arising out ofand all claims, connected with or resulting from followingcosts, damages, liabilities, expenses, actions, and causes of action, whatsoever, including, but not limited to, reasonable attorneys' fees, court costs, other expenses of litigation, and incidental, indirect, consequential, special, exemplary, and punitive damages, to the extent not caused by any act or omission of Sears or its Affiliates: (a) any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to act, by Purchaser or its Affiliates or any of their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenant, representation or warranty herein or in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or, in any way, connected with: i. Under the foregoing Article II (d), Seller’s failure to supply water during any time period when Seller lacks sufficient water to meet all of its customers' demands because of circumstances beyond Seller's control (which may include, but are not limited to, a drought, but which do not include Seller agreeing to serve new customers when it lacks sufficient water capacity to fully serve both those new customers and Purchaser). ii. Under the foregoing Article IV, any acts or relating to any infringementomissions of the Purchaser, inducement of infringement, dilution, misappropriation or other violation of any third party Intellectual Property arising from (A) the materials provided by Purchaser in connection with the Program, unless (i) such Claim arises from the installation, construction, inspection, operation, maintenance, expansion, repair, reconstruction, rehabilitation, relocation, or replacement of that system or appurtenant devices, or any action of Purchaser taken at Sears’ direction; other activity associated with the system, or (iii) Sears modified the materials provided by Purchaser without Purchaser’s prior written consent; inspection of Seller’s meters, or (iii) Sears failed to follow Purchaser’s instructions with respect any defect or flaw in the design, installation, or construction of, or any failure or malfunction of, the Metered Point, meters, backflow prevention devices, booster pumps, supply lines, or other lines or equipment designed, installed/constructed, or provided by the Seller or any of its employees or agents, hereunder, including but not limited to the materials provided extension by Purchaserthe Purchaser of Seller’s existing line to the County border, (B) services provided the construction by Purchaser of any supply lines and associated equipment, and the installation by Purchaser of any meters or backflow prevention devices. iii. Under the foregoing Article VI, Purchaser's failure to so comply with federal, state, and local laws and regulations. iv. Under the foregoing Article X, any reduction in connection with water quality once it passes through the Program or (C) Metered Point and enters the use by Sears Purchaser's water system. v. Under the foregoing Article XI, any reduction in the pressure of the Licensed water once it passes through the Metered Point and enters the Purchaser's water system. vi. Under the foregoing Article XII, said booster pumps. vii. Under the foregoing Article XIII, the re-sale or other provision of water by Purchaser Marksto any third party.

By Purchaser. The Purchaser shall be liable agrees to and shall indemnify, defend to the extent permitted by law, the Vendors and hold harmless Searseach person who participates as an underwriter in the offering or sale of the Consideration Shares, and its Subsidiaries and Affiliates and their respective directors, officers and officers, employees and permitted assigns from agents and each Person who controls such underwriter (within the meaning of any applicable Securities Laws) against any Losses all losses (excluding loss of profits), claims, damages, liabilities and expenses arising out ofof or based upon: (i) any information or statement contained in the preliminary prospectus, connected with final prospectus, or resulting from followingany 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, to the extent not caused investigation or proceedings commenced or threatened by any act applicable Commission, court or omission of Sears or its Affiliates: (a) other competent authority based upon any products and services offered by Purchaser and its Subsidiaries and Affiliates; (b) any act or omission where there was a duty to actmisrepresentation in the preliminary prospectus, by Purchaser or its Affiliates 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 their respective employees, officers, directors, shareholders or agents hired by Purchaser or its Affiliates relating to an Account or an Accounts Receivable; (c) any misrepresentation or unauthorized representation to third parties by employees of Purchaser or its Affiliates made the Securities Laws in connection with the Program; (d) any material breach by Purchaser or its Affiliates of a covenantqualification and the distribution effected thereunder, representation or warranty herein or except in the Merchant Agreement or the Licensing Agreement; (e) the failure of Purchaser or its Affiliates to comply with any Laws applicable to Purchaser or its Affiliates; or (f) any third party Claim arising out of or relating to any infringement, inducement of infringement, dilution, misappropriation or other violation case of any third party Intellectual Property arising from of the foregoing insofar as (A) the materials provided by Purchaser any information or statement referred to in connection with the Program, unless clause (i) such Claim arises from any action of Purchaser taken at Sears’ direction; or (ii) Sears modified of this subsection 9(e)(i) has been furnished to the materials provided Purchaser by Purchaser without 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 Consideration Shares, a copy of the prospectus or any amendments or supplements thereto or to otherwise comply with applicable Securities Laws; (C) the completion of any sale in contravention of the Vendors’ obligation to obtain the Purchaser’s prior written consentapproval; or (iiiD) Sears failed to follow Purchaser’s instructions with respect to any amounts paid in settlement of any claim have been paid if such settlement is effected without the materials provided by prior written consent of the Purchaser, (B) services provided by Purchaser in connection with the Program which consent shall not be unreasonably withheld or (C) the use by Sears of the Licensed Purchaser Marksdelayed.