By Purchaser. Subject to the limitations set forth in this Article 6 and Section 7.15, from and after the Closing Purchaser agrees to indemnify and hold harmless Seller and Seller’s Affiliates together with their respective directors, officers, managers, employees and agents (each a “Seller Indemnified Party”) from and against any and all Losses that any Seller Indemnified Party incurs by reason of or in connection with any of the following circumstances:
(i) Any breach by Purchaser of any representation or warranty made by it in Article 3 or any breach or violation of any covenant, agreement or obligation of Purchaser contained herein; and
(ii) As set forth in Part VI of Appendix B.
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. (i) if Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or
(ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or
(iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act.
(iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or
(v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; pr...
By Purchaser. Purchaser shall indemnify, defend and hold harmless Seller from and against any and all Losses arising out of or otherwise in respect of any inaccuracy in or breach of any representations, warranties, covenants or agreements of Purchaser contained in this Agreement.
By Purchaser. The Purchaser will do, execute, acknowledge and deliver, or shall cause to be done, executed, acknowledged and delivered, all such further acts, conveyances and assurances as Seller may reasonably require for accomplishment of the purposes of this Agreement.
By Purchaser. Subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall execute and deliver, or cause to be executed and delivered, to Seller each of the following documents (where the execution or delivery of the documents is contemplated), deliver, or cause to be delivered, to Seller each of the following items (where the delivery of other items is contemplated) and take, or cause to be taken, the following actions (where the taking of action is contemplated):
(i) payment of the Purchase Price in immediately available funds which shall be wired to a bank account designated by Seller pursuant to wire transfer instructions provided to Purchaser by Seller;
(ii) Purchaser shall deposit $3,000,000 of the Purchase Price (the “Inventory Escrow Amount”) in an escrow account to be held, safeguarded and released upon the receipt by Purchaser of substantially all of the Inventory pursuant to the terms of the Escrow Agreement, among Purchaser, Seller and the Escrow Agent, in such form as the Parties shall mutually agree (the “Escrow Agreement”);
(iii) the Escrow Agreement, duly executed by Purchaser;
(iv) the Transition Services Agreement, duly executed by Purchaser;
(v) a certificate of the Secretary of State of the state of organization of Purchaser, dated not more than 10 days prior to the Closing Date, as to the existence and good standing of Purchaser;
(vi) a certificate, dated as of the Closing Date, signed by the Secretary of Purchaser certifying (A) that attached to such certificate are true and complete copies of the Charter Documents of Purchaser, (B) as to the incumbency and specimen signature of each Responsible Officer of Purchaser executing this Agreement and each other Transaction Document or any certificate or instrument furnished pursuant hereto and (C) that this Agreement and each other Transaction Document executed by Purchaser is duly and validly authorized and constitutes a binding obligation of Purchaser; and
(vii) a certificate, dated as of the Closing Date, signed by a Responsible Officer of Purchaser certifying that the conditions set forth in Section 6.2(a) and 7.2(b) have been satisfied.
By Purchaser. Purchaser represents and warrants to Seller as of the Effective Date that:
5.2.1 Purchaser is a corporation, partnership, limited liability company, trust or other type of business organization that is duly organized, validly existing and in good standing under the laws of the state in which it was organized and Purchaser is qualified to do business in the jurisdiction in which the Property is located.
5.2.2 Purchaser has taken all requisite action and obtained all requisite consents, releases and permissions in connection with entering into this Agreement and the instruments and documents referenced herein or required under any covenant, agreement, encumbrance, law or regulation with respect to the obligations required hereunder, and no consent of any other party is required for the performance by Purchaser of its obligations hereunder.
5.2.3 This Agreement is, and all agreements, instruments and documents to be executed and delivered by Purchaser pursuant to this Agreement shall be, duly authorized, executed and delivered by Purchaser. This Agreement is, and all agreements, instruments and documents to be executed and delivered by Purchaser pursuant to this Agreement shall be, valid and legally binding upon Purchaser and enforceable in accordance with their respective terms.
5.2.4 Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby does now constitute or shall result in a breach of, or a default under, any agreement, document, instrument or other obligation to which Purchaser is a party or by which Purchaser may be bound, or any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body, applicable to Purchaser or to the Property.
5.2.5 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 law is pending against or, to the best of Purchaser’s knowledge, contemplated by Purchaser.
5.2.6 There are no actions, suits, claims or other proceedings (collectively, “Litigation”) pending or, to the best of Purchaser’s knowledge, contemplated or threatened against Purchaser that could affect Purchaser’s ability to perform its obligations when and as required under the terms of this Agreement.
By Purchaser. Purchaser hereby represents and warrants to, and covenants with, Custodian and Seller that, as of the date hereof and throughout the term of this Agreement:
(i) Purchaser is acquiring the Mortgage Loans for its own account only and not for any other person;
(ii) Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans;
(iii) Purchaser has been furnished with all information regarding the related Mortgage Loans that it has requested from Seller;
(iv) Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; and
(v) Purchaser has the full power and authority to hold each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by applicable receivership, conservatorship or similar debtor relief laws and except that certain equitable remedies may not be available regardless of whether enforcement is sought in equity or law.
By Purchaser. Purchaser represents and warrants to Seller as follows:
By Purchaser. Purchaser shall indemnify, defend and hold harmless the Company, its officers, managers, employees, agents, successors and assigns (the “Company Group”) from and against any and all Damages incurred in connection with, arising out of, resulting from or incident to any (i) breach of any covenant, representation, warranty or agreement or the inaccuracy of any representation made by Purchaser in or pursuant to this Agreement and (ii) Assumed Liabilities.
