Product Warranty and Product Liability Schedule 5.17 of the Disclosure Schedule contains a true, correct and complete copy of Company’s standard warranty or warranties for sales of Products (as defined below) and, except as stated therein, there are no warranties, commitments or obligations with respect to the return, repair or replacement of Products. Schedule 5.17 of the Disclosure Schedule contains a description of all product liability claims and similar claims, actions, litigation and other proceedings relating to Products which are presently pending or which to Company’s knowledge are threatened, or which have been asserted or commenced against Company within the last two (2) years, in which a party thereto either requests injunctive relief (whether temporary or permanent) or alleges damages in excess of $100,000.00 (whether or not covered by insurance). To the best of the Company’s knowledge, there are no defects in design, construction or manufacture of Products which would adversely affect performance or create an unusual risk of injury to persons or property. Except as set forth on Schedule 5.17, none of the Products has been the subject of any replacement, field fix, retrofit, modification or recall campaign other than in the ordinary course of business. The Products have been designed and manufactured so as to meet and comply with all governmental standards and specifications currently in effect, and have received all governmental approvals necessary to allow their sale and use. As used herein, the term “Products” means any and all products currently or at any time previously manufactured, distributed or sold by Company, or by any predecessor of Company under any brand name or xxxx under which products are or have been manufactured over the last three (3) years, distributed or sold by Company, in or through the Business. [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
License Terms 1. The license granted to use and have used the Licensed Marks with respect to, and in conjunction with, the manufacture, offer for sale, sale, importation, exportation, and provision of Licensed Products is non-exclusive, worldwide and royalty-free and includes the right to sublicense to Licensee’s subsidiaries and affiliates.
COVENANTS OF SELLER AND BUYER Seller and Buyer each covenant with the other as follows:
Seller and Buyer shall work together and cooperate in order to obtain and cause to be delivered to Buyer (for Buyer's use for purposes of obtaining title insurance and confirmatory due diligence in respect of Seller's representations set forth in Section 4.4) and Seller as promptly as practicable following execution of this Agreement, copies of commitments to issue owner's or leasehold title insurance policies ("Title Commitments") for each Site as to ----------------- which Seller has an insurable real property interest ("Insurable Sites") in --------------- accordance with the letter agreement among the Title Company, Seller and Buyer. The costs of obtaining the Title Commitments and title insurance policies pursuant to the Title Commitments (the "Title Policies") (at the rate of $1,100 -------------- per Site up to a maximum of $2,132,900 in the aggregate, which includes "breakage" and "cancellation" fees associated therewith) and fees of the Title Company for attendance at the Closings shall, subject to the last sentence of this Section 6.12(a), be shared equally by Buyer and Seller, and at the Initial Closing, Buyer shall reimburse Seller for Buyer's portion of such costs (to the extent that Buyer's portion of such costs was initially borne by Seller). Except as provided in Section 3.2, any title insurance premiums or costs relating to the Title Policies (other than fees of the Title Company for attendance at the Closings) which are in excess of the $1,100 per Site average or in excess of $2,132,900 in the aggregate shall be paid by Buyer. If, at any proposed Closing (other than the Final Closing) relating to any Insurable Site for which a Title Commitment shall have been issued, Buyer shall be unable to obtain a Title Policy insuring its interest in such Site notwithstanding Buyer's having exercised its commercially reasonable efforts to do so, then, provided that Buyer shall continue to exercise commercially reasonable efforts to obtain such Title Policy, Buyer shall have the right to defer the transfer and assignment of such Site to the next Closing hereunder; provided, however, that, -------- ------- notwithstanding the foregoing, (x) provided that Seller has reasonably cooperated with Buyer in selecting the Sites to be transferred and assigned to Buyer at the Initial Closing, in no event shall Buyer have the right to defer the transfer and assignment of any Site if the effect of such deferral would be that fewer than 350 Sites would be transferred and assigned at the Initial Closing, and (y) Buyer's ability to obtain Title Policies for any or all of the Sites in and of itself shall not be a closing condition hereunder, and any Sites the transfer and assignment of which shall have been deferred pursuant to this sentence shall be transferred and assigned at the next Closing following the date on which Buyer is able to obtain Title Insurance therefor (Buyer hereby agreeing to continue to exercise commercially reasonable efforts to do so) or, if Buyer shall have continued to be unable to obtain Title Insurance therefor, at the Final Closing, regardless of the state of title therefor, subject to the other conditions of this Agreement. Buyer acknowledges and agrees that, unless the conditions set forth in Article VIII shall fail to be satisfied, Buyer shall be obligated to purchase all of the Sites (other than Excluded Sites and Strategic Sites) regardless of the state (or absence) of title thereto, the title defects or other Liens applicable thereto, or the inability to obtain a Title Commitment or Title Policy therefor. Any amounts incurred by Seller pursuant to this Section 6.12 shall be applied toward the Cap described in Section 10.3. Seller's obligations pursuant to the second and third sentences of this Section 6.12(a) shall be determined as if all Excluded Sites and all Strategic Sites were Sites.
COVENANTS OF BUYER AND SELLER Buyer and Seller agree that:
Product Warranty Each product manufactured, sold, leased, or delivered by the Company has been in conformity with all applicable contractual commitments and all express and implied warranties, and the Company has no Liability (and there is no basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against any of them giving rise to any Liability) for replacement or repair thereof or other damages in connection therewith, subject only to the reserve for product warranty claims set forth on the face of the balance sheet included in the Interim Financial Statements (rather than in any notes thereto) as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company. No product manufactured, sold, leased, or delivered by the Company is subject to any guaranty, warranty, or other indemnity beyond the applicable standard terms and conditions of sale or lease. Section 4.22 of the Disclosure Schedule includes copies of the standard terms and conditions of sale or lease for the Company (containing applicable guaranty, warranty, and indemnity provisions).
Covenants of Seller Prior to Closing Between the date of this Agreement and the Closing:
Lost Shareholder Due Diligence Searches and Servicing The Trust hereby acknowledges that USBFS has an arrangement with an outside vendor to conduct lost shareholder searches required by Rule 17Ad-17 under the Securities Exchange Act of 1934, as amended. Costs associated with such searches will be passed through to the Trust as an out-of-pocket expense in accordance with the fee schedule set forth in Exhibit C hereto. If a shareholder remains lost and the shareholder’s account unresolved after completion of the mandatory Rule 17Ad-17 search, the Trust hereby authorizes vendor to enter, at its discretion, into fee sharing arrangements with the lost shareholder (or such lost shareholder’s representative or executor) to conduct a more in-depth search in order to locate the lost shareholder before the shareholder’s assets escheat to the applicable state. The Trust hereby acknowledges that USBFS is not a party to these arrangements and does not receive any revenue sharing or other fees relating to these arrangements. Furthermore, the Trust hereby acknowledges that vendor may receive up to 35% of the lost shareholder’s assets as compensation for its efforts in locating the lost shareholder.
Advertising and Promotional Materials a. Licensee will not use the Licensed Marks or any reproduction of them, including without limitation, Photographs or Computer Art, as defined in Paragraph 10a, in any advertising, promotion, publicity or display materials (collectively "Promotional Materials") without receiving NFLP's prior written approval executed on a Promotional Approval Form supplied to Licensee by NFLP. Licensee may use such approved Promotional Materials only in conjunction with the Styles of Licensed Products that NFLP has approved. Licensee shall submit to NFLP all Promotional Materials at the following applicable stages appropriate to the medium used: (i) conceptual stage, pre-production art or rough cuts; (ii) layout, storyboard and script; (iii) finished materials; and (iv) at any other time as reasonably requested by NFLP. Licensee shall ensure that it submits all proposed Promotional Materials and any modifications to previously approved Promotional Materials to NFLP in a timely fashion that will ensure NFLP has adequate time to review such materials prior to the date of their proposed use by Licensee. NFLP shall use best efforts to evaluate all such Promotional Materials' submissions within ten (10) business days of their receipt by NFLP. NFLP shall execute a Promotional Approval Form for all Promotional Materials that it approves. Licensee shall notify its retailers and/or Third Party Distributors that NFLP must approve all Promotional Materials involving or using in any form or manner the Licensed Marks. Licensee shall use best efforts to ensure that its retailers and/or Third Party Distributors do not publish, display or otherwise distribute such Promotional Materials without NFLP's prior written approval.
Third Party Vendors Nothing herein shall impose any duty upon DST in connection with or make DST liable for the actions or omissions to act of the following types of unaffiliated third parties: (a) courier and mail services including but not limited to Airborne Services, Federal Express, UPS and the U.S. Mails, (b) telecommunications companies including but not limited to AT&T, Sprint, MCI and other delivery, telecommunications and other such companies not under the party’s reasonable control, and (c) third parties not under the party’s reasonable control or subcontract relationship providing services to the financial industry generally, such as, by way of example and not limitation, the National Securities Clearing Corporation (processing and settlement services), Fund custodian banks (custody and fund accounting services) and administrators (blue sky and Fund administration services), and national database providers such as Choice Point, Acxiom, TransUnion or Lexis/Nexis and any replacements thereof or similar entities, provided, if DST selected such company, DST shall have exercised due care in selecting the same. Such third party vendors shall not be deemed, and are not, subcontractors for purposes of this Agreement.
