Common use of By Buyer Clause in Contracts

By Buyer. (i) in the event of any breach by any Seller of any of its agreements, covenants, representations or warranties contained herein that would result in the failure of a condition set forth in Section 10.1 or Section 10.2 to be satisfied, and the failure of Sellers to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from Buyer of their intention to exercise their rights under this Section 12.1(b)(i) as a result of such breach; provided, however, that that the right to terminate this Agreement pursuant to this Section 12.1(b)(i) shall not be available to Buyer if Buyer is in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that would result in the failure of a condition set forth in Article XI to be satisfied; (ii) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date); or (iv) if Sears Re shall not have agreed to be bound by all of the terms of this Agreement as a Seller hereunder by delivering a signature page in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re has not yet delivered its signature page hereto.

By Buyer. (i) in the event upon a breach of any breach by representation, warranty, covenant or agreement on the part of Seller set forth in this Agreement, or if any representation or warranty of Seller of any of its agreementsshall have become untrue, covenants, representations or warranties contained herein in either case such that would result in the failure of a condition set forth in Section 10.1 or Section 10.2 to 10.03(a) would not be satisfied, unless such breach or untruth can be cured prior to Closing and the failure after receipt of Sellers notice thereof, Seller proceeds in good faith to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from Buyer of their intention to exercise their rights under this Section 12.1(b)(i) or untruth as a result of such breachpromptly as practicable; provided, however, that that Buyer shall not have the right to terminate this Agreement pursuant to this Section 12.1(b)(i11.01(d)(i) shall not be available to Buyer if Buyer is then in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that this Agreement to an extent which would result in give Seller the failure of a condition set forth in right not to close pursuant to Article XI to be satisfied;X; or (ii) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date); or (iv) if Sears Re shall not have agreed to be bound by all of the terms of this Agreement as a Seller hereunder by delivering a signature page conditions set forth in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties Section 10.01 and Section 10.02 have been satisfied (other than Sears Rethose conditions that by their nature cannot be satisfied other than at the Closing) notwithstanding that Sears Re has not yet delivered its signature page heretoand Seller fails to consummate the transactions contemplated by this Agreement within the earlier of (i) two (2) Business Days after the date the Closing should have occurred pursuant to Section 2.08 and (ii) the later of the date the Closing should have occurred pursuant to Section 2.08 and one (1) Business Day before the Termination Date, and Buyer stood ready, willing and able to consummate the transactions contemplated by this Agreement during such period.

By Buyer. (i) in if the event of any breach by any Seller of Company (A) shall have breached any of its agreements, covenants, representations the covenants or warranties agreements contained herein in this Agreement to be complied with by the Company such that would result in the failure of a closing condition set forth in Section 10.1 6.2(b) would not be satisfied or (B) there exists a breach of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 10.2 to 6.2(a) would not be satisfied, and and, in the failure case of Sellers to cure such breach by the earlier of both (A) and (B), such breach is incapable of being cured by the Outside Termination Date and or is not cured by the Company within twenty (20) Business Days after the Company receives written notice of such breach from Buyer or Merger Sub; or (ii) if, prior to the adoption of this Agreement by the Required Company Stockholders at the Company Stockholders' Meeting, (A) a Company Adverse Recommendation Change shall have occurred, (B) the date Company shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company that is fifteen its stockholders vote in favor of the Merger and the transactions contemplated hereby, (15C) the Board of Directors of the Company fails publicly to reaffirm its recommendation of this Agreement, the Merger or the other transactions contemplated by this Agreement within ten (10) days after receipt of a notice Buyer requests in writing from Buyer that such recommendation or determination be reaffirmed, (D) a tender or exchange offer relating to any shares of their intention Common Stock will have been commenced and the Company will not have sent to exercise their rights its security holders, within ten (10) days after the commencement of such tender or exchange offer, a statement disclosing that the Company recommends rejection of such tender or exchange offer, (E) a Takeover Proposal is publicly announced, and the Company fails to issue, within ten (10) days after such Takeover Proposal is announced, a press release that reaffirms the recommendation of the Board of Directors of the Company that its stockholders vote in favor of the Merger and the transactions contemplated hereby or (F) the Company has breached any of its obligations under this Section 12.1(b)(iSections 5.3 or 5.4 to call, give notice of, convene and hold the Company Stockholders' Meeting and timely mail the Proxy Statement as contemplated thereby, which has not been cured (or is not capable of being cured) as a result within twenty (20) Business Days following receipt by the Company of written notice of such breach; provided, however, that that the right to terminate this Agreement pursuant to this Section 12.1(b)(i) shall not be available to Buyer if Buyer is in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that would result in the failure of a condition set forth in Article XI to be satisfied; (ii) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date); or (iv) if Sears Re shall not have agreed to be bound by all of the terms of this Agreement as a Seller hereunder by delivering a signature page in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re has not yet delivered its signature page hereto.

By Buyer. (i) in the event upon a breach of any breach by any Seller representation, warranty, covenant or obligation of any of its agreements, covenants, representations or warranties contained herein Sellers set forth in this Agreement such that would result in the failure of a condition conditions set forth in Section 10.1 5.2(a) or Section 10.2 5.2(b) above are incapable of being satisfied and, if such breach is curable, such breach is not cured prior to be satisfied, and the expiration of 20 days following the receipt by Sellers of written notice thereof from Buyer; (ii) if satisfaction of any of the conditions set forth in Section 5.2(a) or Section 5.2(b) above is or becomes impossible (other than through the failure of Sellers Buyer or its Affiliates to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from Buyer comply with any of their intention to exercise their rights covenants or obligations under this Section 12.1(b)(i) as a result of such breachAgreement); provided, however, provided that that the right Buyer will not be entitled to terminate this Agreement pursuant to this Section 12.1(b)(i6.1(b) shall not at any time during which Buyer would be available unable to Buyer if Buyer is in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that would result in satisfy the failure of a condition conditions set forth in Article XI to be satisfied; (iiSection 5.3(a) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; Section 5.3(b) above; or (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has transactions contemplated hereby have not been entered on or before February 8, 2019 subject to Bankruptcy Court availability consummated by the date that is six (or is vacated or stayed as of such date); or (iv6) if Sears Re shall not have agreed to be bound by all of months from the terms date of this Agreement as a Seller hereunder by delivering a signature page in (the form attached hereto by 11:59 p.m. New York City time on January 22“End Date”); provided, 2019. For the avoidance of doubthowever, it is the intent of the Parties that Buyer shall not be entitled to terminate this Agreement pursuant to this Section 6.1(b)(iii) if there has been a violation or breach by Buyer of this Agreement which has prevented or would prevent satisfaction of any condition to the obligations of Sellers set forth in Section 5.1, Section 5.1(a) or Section 5.1(c) above; and provided, further, however, that Buyer shall not be binding on each entitled to waive the condition to Closing set forth in Section 5.1(d) until the later of the Parties (x) all conditions in Section 5.1 and Section 5.2 (other than Sears ReSection 5.1(d)) notwithstanding having been satisfied and (y) three (3) months from the date of this Agreement. Notwithstanding the foregoing, if Buyer waives the condition to Closing set forth in Section 5.1(d) in accordance with this Section 6.1(b)(iii), then Sellers shall automatically, and without any further action by any Party, be deemed to have also waived such condition to Closing; (c) by Sellers: (i) upon a breach of any representation, warranty, covenant or obligation of Buyer set forth in this Agreement such that Sears Re has the conditions set forth in Section 5.3(a) or Section 5.3(b) above are incapable of being satisfied and, if such breach is curable, such breach is not yet delivered its signature page hereto.cured prior to the expiration of 20 days following Xxxxx’s receipt of written notice thereof from Sellers; (ii) if satisfaction of any of the conditions set forth in Section 5.3(a) or Section 5.3(b) above is or becomes impossible (other than through the failure of Sellers to comply with any of their covenants or obligations under this Agreement); provided that Sellers will not be entitled to terminate this Agreement pursuant to this Section 6.1(c) at any time during which Sellers

By Buyer. (i1) in the event (A) of a material breach of any breach by any covenant or agreement on the part of the Seller of set forth in this Agreement or (B) that any of its agreements, covenants, the representations or warranties contained herein that of the Seller set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either of (A) or (B) which breach or inaccuracy would reasonably be expected to result in the failure of a condition set forth in Section 10.1 or Section 10.2 to be 7(b) not being satisfied, and the failure of Sellers to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from Buyer of their intention to exercise their rights under this Section 12.1(b)(i) as a result of such breach; provided, however, that notwithstanding the foregoing, in the event that such breach of covenant by the Seller is, or such inaccuracies in the representations and warranties of the Seller are, curable by the Seller through the exercise of commercially reasonable efforts, then Buyer shall not be permitted to terminate this Agreement pursuant to this Section 10(a)(v) (1) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Buyer to the Seller of such breach or inaccuracy, as applicable, or (2) the Seller ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Buyer may not terminate this Agreement pursuant to this Section 10(a)(v)(1) if such breach or inaccuracy by the Seller is cured within such thirty (30) calendar day period); (2) if the Seller shall have (A) effected a Seller Adverse Recommendation Change in accordance with Section 6(i) hereof and/or (B) entered into an agreement regarding a Superior Proposal in accordance with Section 6(i) hereof; (3) if there shall have occurred any fact, event, change, development, circumstance or effect which, individually or in the aggregate, has had or could reasonably be expected to have a Seller Material Adverse Effect; (4) if the Seller does not close on the last day of the month in which the conditions to Closing not occurring at the Closing are satisfied; provided that the Buyer shall not have the right to terminate this Agreement pursuant to this Section 12.1(b)(i10(a)(v)(4) shall not be available to Buyer if Buyer is in if, at the time of such termination, there exists a breach of any of its representationsrepresentation, warranties, covenants warranty or agreements contained herein in a manner covenant by the Buyer that would result in the failure of a condition to satisfy the closing conditions set forth in Article XI to be satisfied; (ii) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such dateSection 7(c); or (iv5) if Sears Re shall not have agreed the Seller fails to be bound deliver the Written Consent by all the close of the terms second Business Day following the execution and delivery of this Agreement as a Seller hereunder by delivering a signature page in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re has not yet delivered its signature page heretoAgreement.

By Buyer. (i) in If any Order restraining, prohibiting or enjoining Buyer or Sellers from consummating the event of any Transaction is entered and such Order shall have become a Final Order; (ii) If there shall have been a breach by any Seller or Canadian Company of any of its agreementstheir representations, covenantswarranties, representations covenants or warranties agreements contained herein that in this Agreement, which breach would result in the failure to satisfy one or more of a condition the conditions set forth in Section 10.1 or Section 10.2 to be satisfied7.1, and the failure of Sellers to cure such breach by the earlier shall be incapable of (A) the Outside Date and (B) the date that is being cured or, if capable of being cured, shall not have been cured within fifteen (15) days after receipt written Notice thereof shall have been received by Sellers; (iii) Upon entry of an Order of the Bankruptcy Court or other court of competent jurisdiction approving any Alternate Transaction; (iv) Upon the consummation of an Alternate Transaction; (v) If (A) the US Cases are converted to cases under chapter 7 of the Bankruptcy Code, (B) the US Cases are dismissed prior to the Closing or (C) the Bankruptcy Court enters an Order appointing a notice trustee or examiner in writing from Buyer accordance with section 1104 of their intention to exercise their rights under this Section 12.1(b)(ithe Bankruptcy Code; or (vi) as a result If the Closing of such breachthe Transaction does not occur within ten (10) days following the entry of the Approval Order; provided, however, that that the right to terminate this Agreement pursuant to this Section 12.1(b)(i) shall not be available to Buyer if Buyer is not in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that this Agreement, which breach would result in the failure to satisfy one or more of a condition the conditions set forth in Article XI to be satisfied; (ii) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date); or (iv) if Sears Re shall not have agreed to be bound by all of the terms of this Agreement as a Seller hereunder by delivering a signature page in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re has not yet delivered its signature page heretoSection 7.2.

By Buyer. (i) in the event upon a breach of any breach by any Seller representation, warranty, covenant or obligation of any of its agreements, covenants, representations or warranties contained herein Sellers set forth in this Agreement such that would result in the failure of a condition conditions set forth in Section 10.1 5.1(a) or Section 10.2 to 5.1(b) would not be satisfied, if such breach is curable prior to the expiration of 20 days following receipt by Sellers’ Representative of written notice thereof and is not cured to the reasonable satisfaction of Buyer prior to the expiration of such 20-day period; or (ii) if satisfaction of any of the conditions set forth in Section 5.1(a) or Section 5.1(b) is or becomes impossible (other than through the failure of Sellers Buyer to cure such breach by the earlier comply with any of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from Buyer of their intention to exercise their rights its covenants or obligations under this Section 12.1(b)(i) as a result of such breach; providedAgreement), however, provided that that the right Buyer will not be entitled to terminate this Agreement pursuant to this Section 12.1(b)(i6.1(b) shall not at any time during which Buyer would be available unable to Buyer if Buyer is satisfy the conditions set forth in Section 5.2(a) or Section 5.2(b); (u) by Sellers’ Representative: (i) upon a breach of any representation, warranty, covenant or obligation of its representations, warranties, covenants or agreements contained herein in a manner that would result in the failure of a condition Buyer set forth in Article XI to this Agreement such that the conditions set forth in Section 5.2(a) or Section 5.2(b) would not be satisfied; , if such breach is curable prior to the expiration of 20 days following Buyer’s receipt of written notice thereof and is not cured to the reasonable satisfaction of Sellers’ Representative prior to the expiration of such 20-day period; or (ii) if satisfaction of any of the Bankruptcy Cases conditions set forth in Section 5.2(a) or Section 5.2(b) is dismissed or converted becomes impossible (other than through the failure of Sellers to comply with any of their covenants or obligations under this Agreement), provided that Sellers’ Representative will not be entitled to terminate this Agreement pursuant to this Section 6.1(c) at any time during which Sellers would be unable to satisfy the conditions set forth in Section 5.1(a) or Section 5.1(b); (v) by Buyer or Sellers’ Representative, if Closing has not occurred on or before April 1, 2016 or such later date as Buyer and Sellers’ Representative may agree in writing (the “Outside Date”), provided that: (i) if all other conditions to Closing are satisfied other than those that are required to be satisfied on the Closing Date, either Sellers’ Representative or Buyer may postpone the Outside Date for up to two additional 45-day periods if HSR Approval has not been obtained and has not been denied by a case under chapter 7 non-appealable decision of a Governmental Body, by giving written notice to the Bankruptcy Code; Other Party to such effect no later than 5:00 p.m. (Atlanta, Georgia time) on the date that is not less than 10 days prior to the original Outside Date (and a subsequent Outside Date, if applicable); (ii) if all other conditions to Closing are satisfied other than those that are required to be satisfied on the Closing Date, Buyer may postpone the original Outside Date for up 58 to one additional 30-day period if required to obtain any necessary consents to transfer alcohol and tobacco licenses or obtain new alcohol and tobacco licenses required in connection with the QSUB Conversions, by giving written notice to the Sellers’ Representative to such effect no later than 5:00 p.m. (Atlanta, Georgia time) on the date that is not less than 10 days prior to the original Outside Date; and (iii) no termination may be made under this Section 6.1(d) if the Bankruptcy Court failure to close is caused by the action or inaction of the Party seeking to terminate this Agreement; or (w) by Buyer or Sellers’ Representative if: (i) any Governmental Body has not approved issued a final, non-appealable Order that remains outstanding prohibiting the consummation of the Transactions on transactions contemplated by this Agreement; or before February 8, 2019, or if (ii) a Law is enacted after the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date); or (iv) if Sears Re shall not have agreed to be bound by all of the terms date of this Agreement as a Seller hereunder by delivering a signature page in prohibiting the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent consummation of the Parties that transactions contemplated by this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re has not yet delivered its signature page heretoAgreement.

By Buyer. (i) in the event of any breach by any if either Seller of or HNR shall have breached or failed to perform any of its agreementsrepresentations, covenantswarranties, representations covenants or warranties contained herein that other agreements set forth in this Agreement (except for the covenants set forth in Section 6.5 as to which a right of termination is available under Section 8.1(d)(ii)(C)), which breach or failure to perform, individually or in the aggregate, (x) would result in give rise to the failure of a any condition set forth in Section 10.1 7.2(a) or Section 10.2 7.2(b) and (y) (A) is not capable of being cured prior to be satisfiedthe Termination Date or (B) is not cured by Seller or HNR, and the failure of Sellers to cure such breach by as applicable, on or before the earlier of (Ai) the Outside Termination Date and (Bii) the date that is fifteen thirty (1530) days after following the receipt by Seller of a written notice in writing from Buyer of their intention to exercise their rights under this Section 12.1(b)(i) as a result of such breachbreach or failure; provided, however, that that the Buyer shall not have a right to terminate this Agreement pursuant to this Section 12.1(b)(i8.1(d)(i) shall not be available to Buyer if Buyer is then in material breach of any of its representations, warranties, covenants or agreements contained herein in a manner that would result in the failure of a condition set forth in Article XI to be satisfied;hereunder; or (ii) if any in the event that (A) a Change in Recommendation has occurred prior to receipt of the Bankruptcy Cases is dismissed Requisite Stockholder Approval, (B) HNR has provided Buyer with written notice of an intention to effect a Change in Recommendation under a 6.5(c) Notice or converted a 6.5(e) Notice, (C) Seller or HNR shall have intentionally committed a breach of their respective obligations or agreements contained in Section 6.5 in any material respect (excluding in each case, failures that are capable of being cured and that are cured within two Business Days following receipt of written notice of such breach or failure from Buyer) or (D) HNR shall have failed to a case under chapter 7 of include the Bankruptcy CodeHNR Board Recommendation in the Proxy Statement delivered to its stockholders; provided, however, that Buyer shall no longer be entitled to terminate this Agreement pursuant to this Section 8.1(d)(ii) once the Requisite Stockholder Approval has been obtained at the Stockholders’ Meeting; (iii) if after the Bankruptcy Court date of this Agreement, a Material Adverse Effect has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date)occurred; or (iv) if Sears Re shall not have agreed to be bound by all an Insolvency Event has occurred in respect of the terms of this Agreement as a Seller hereunder by delivering a signature page in the form attached hereto by 11:59 p.m. New York City time on January 22HNR, 2019. For the avoidance of doubtSeller, it is the intent of the Parties that this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re has not yet delivered its signature page heretoHVDH, HNR Finance B.V., Harvest Vinccler Ltd. or Petrodelta.

By Buyer. (i) in the event of any breach by any Seller of any of its agreements, covenants, representations or warranties contained herein that would result in the failure of a condition set forth in Section 10.1 or Section 10.2 Article X to be satisfied, and the failure of Sellers to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from the Buyer of their intention to exercise their rights under this Section 12.1(b)(i) as a result of such breachTermination Notice; provided, however, that that the right to terminate this Agreement pursuant to this Section 12.1(b)(i(1) shall not be available to Buyer if Buyer is not in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that would result in the failure of a condition set forth in Article XI to be satisfied, (2) Buyer notifies Sellers in writing (the “Buyer Termination Notice”) of its intention to exercise its rights under this Section 12.1(b)(i) as a result of such breach, and (3) Buyer specifies in the Buyer Termination Notice the representation, warranty, covenant or agreement contained herein of which Sellers are allegedly in breach and the basis for Buyer’s assertion of the existence of such breach; (ii) if any of the Bankruptcy Cases Case is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8October 31, 20192016, or if the Approval Order has not been entered on or before February 8November 1, 2019 subject to Bankruptcy Court availability 2016 (or is vacated or stayed as of such date); or; (iv) if Sears Re the Closing shall not have agreed occurred by the close of business on November 2, 2016 (the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 12.1(b)(iv) shall not be available to any Party whose material breach of any of its representations, warranties, covenants or agreements contained herein results in the failure of the Closing to be bound consummated by all such time; (v) in the event of the terms occurrence of this Agreement as any Major Casualty / Condemnation Event; or (vi) upon approval by the Bankruptcy Court of, or the filing by or on behalf of any Seller of a Seller hereunder by delivering motion or other request to approve, a signature page in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re has not yet delivered its signature page hereto.Competing Transaction;

By Buyer. (i) in the event upon a breach of any breach by representation, warranty, covenant or agreement on the part of Seller set forth in this Agreement, or if any representation or warranty of Seller of any of its agreementsshall have become untrue, covenants, representations or warranties contained herein in either case such that would result in the failure of a condition set forth in Section 10.1 or Section 10.2 to 10.02(a) would not be satisfied, unless such breach or untruth can be cured prior to Closing and the failure after receipt of Sellers written notice thereof, Seller proceeds in good faith to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from Buyer of their intention to exercise their rights under this Section 12.1(b)(i) or untruth as a result of such breachpromptly as practicable; provided, however, that that Buyer shall not have the right to terminate this Agreement pursuant to this Section 12.1(b)(i11.01(d) (i) shall not be available to Buyer if Buyer is then in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that this Agreement to an extent which would result in give Seller the failure of a condition set forth in right not to close pursuant to Article XI to be satisfied;X; or (ii) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date); or (iv) if Sears Re shall not have agreed to be bound by all of the terms of this Agreement as a Seller hereunder by delivering a signature page conditions set forth in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties Section 10.01 have been satisfied (other than Sears Rethose conditions that by their nature cannot be satisfied other than at the Closing) notwithstanding that Sears Re has not yet delivered its signature page heretoand Seller fails to consummate the transactions contemplated by this Agreement within the earlier of (i) two (2) Business Days after the date the Closing should have occurred pursuant to Section 2.08 and (ii) the later of the date the Closing should have occurred pursuant to Section 2.08 and one (1) Business Day before the Termination Date, and Buyer stood ready, willing and able to consummate the transactions contemplated by this Agreement during such period.

By Buyer. (i) in the event upon a breach of any breach by representation, warranty, covenant or agreement on the part of Seller or the Company set forth in this Agreement, or if any representation or warranty of Seller of any of its agreementsor the Company shall have become untrue, covenants, representations or warranties contained herein in either case such that would result in the failure of a condition set forth in Section 10.1 or Section 10.2 to 11.03(a) would not be satisfied, unless such breach or untruth can be cured prior to Closing and after receipt of notice thereof, Seller or the failure of Sellers Company proceeds in good faith to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of a notice in writing from Buyer of their intention to exercise their rights under this Section 12.1(b)(i) or untruth as a result of such breachpromptly as practicable; provided, however, that that Buyer shall not have the right to terminate this Agreement pursuant to this Section 12.1(b)(i12.01(d)(i) shall not be available to Buyer if Buyer is then in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that this Agreement to an extent which would result in give Seller the failure of a condition set forth in right not to close pursuant to Article XI to be satisfied;XI; or (ii) if any of the Bankruptcy Cases is dismissed or converted to a case under chapter 7 of the Bankruptcy Code; (iii) if the Bankruptcy Court has not approved the consummation of the Transactions on or before February 8, 2019, or if the Approval Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability (or is vacated or stayed as of such date); or (iv) if Sears Re shall not have agreed to be bound by all of the terms of this Agreement as a Seller hereunder by delivering a signature page conditions set forth in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties Section 11.01 and Section 11.02 have been satisfied (other than Sears Rethose conditions that by their nature cannot be satisfied other than at the Closing or which have not been satisfied due to a breach of any representation, warranty, covenant or agreement of Seller contained herein) notwithstanding that Sears Re has not yet delivered its signature page heretoand Seller fails to consummate the transactions contemplated by this Agreement within the earlier of (i) two (2) Business Days after the date the Closing should have occurred pursuant to Section 2.05 and (ii) the later of the date the Closing should have occurred pursuant to Section 2.05 and one (1) Business Day before the Termination Date, and Buyer stood ready, willing and able to consummate the transactions contemplated by this Agreement during such period.

By Buyer. (i) in the event of any breach by any Seller of any of its agreements, covenants, representations or warranties contained herein that would result in the failure of a condition set forth in Section 10.1 or Section 10.2 Article IX to be satisfied, and the failure of Sellers to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen thirty (1530) days after receipt of a notice in writing from the Buyer of their intention to exercise their rights under this Section 12.1(b)(i) as a result of such breachTermination Notice; provided, however, that that the right to terminate this Agreement pursuant to this Section 12.1(b)(i(1) shall not be available to Buyer if Buyer is not in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that would result in the failure of a condition set forth in Article XI X to be satisfied, (2) Buyer notifies Sellers in writing (the “Buyer Termination Notice”) of its intention to exercise its rights under this Section 11.1(b)(i) as a result of the breach, and (3) Buyer specifies in the Buyer Termination Notice the representation, warranty, covenant or agreement contained herein of which Sellers are allegedly in breach; (ii) if any of the Bankruptcy Cases Case is dismissed or converted to a case under chapter Chapter 7 of the Bankruptcy CodeCode and neither such dismissal nor conversion expressly contemplates the transactions provided for in this Agreement; (iii) if the Bankruptcy Court has Auction takes place and Buyer is not approved the Successful Bidder at the Auction, except that if Buyer is designated as the second highest or best bidder, then upon the earlier of the consummation of the Transactions on or before February 8, 2019, or transaction with the Successful Bidder and 30 days after the conclusion of the Sale Hearing; (iv) if the Approval Bidding Procedures Order has not been entered on or before February 8, 2019 subject to Bankruptcy Court availability fourteen (14) days after the Filing (or is vacated or stayed as of such date); or (ivv) if Sears Re shall not have agreed to be bound by all of the terms of this Agreement as a Seller hereunder by delivering a signature page in the form attached hereto by 11:59 p.m. New York City time on January 22, 2019. For the avoidance of doubt, it is the intent of the Parties that this Agreement shall be binding on each of the Parties (other than Sears Re) notwithstanding that Sears Re Sale Order has not yet delivered its signature page heretobeen entered on or before forty-five (45) days after the Filing (or is vacated or stayed as of such date).