Common use of Transaction Structure Clause in Contracts

Transaction Structure. A Third Party buyer (the “Outlet Buyer”) will acquire the Outlet Segment pursuant to an Outlet Purchase Agreement. The Outlet Buyer will (i) acquire all of the equity of Sears Outlet Stores, LLC and Outlet Merchandising, LLC and any or all of the other Outlet Segment assets specified on Annex V as agreed between the Company and the Outlet Buyer (together, the “Outlet Assets”) and (ii) assume and agree to pay, perform and discharge all liabilities and obligations of the Company and its Subsidiaries primarily arising out of or relating to the Outlet Segment (together, the “Outlet Liabilities”) without further recourse to the Company or any of its Subsidiaries (other than in connection with (x) the Transition Assistance described in Item 5 below, (y) the Post-Closing Obligations described in Item 8 below and (z) a customary post-closing mechanism to true-up actual closing Net Working Capital to the amount estimated for purposes of calculating the closing payment as further described in Item 2 below). For the avoidance of doubt, the Outlet Buyer shall assume all of the Outlet Liabilities upon the closing of the Outlet Sale (the “Outlet Sale Closing”), whether or not the Outlet Assets associated with such Outlet Liabilities are transferred to the Outlet Buyer. For example, the Outlet Liabilities shall include the liabilities and obligations of the Company and its Subsidiaries under any Real Property Lease primarily used or held for use in the conduct of the Outlet Segment, whether or not the Company and the Outlet Buyer determine to include such lease as an Outlet Asset. Any cash (but, for the avoidance of doubt, not cash equivalents, including credit card receivables that are eligible to be pledged as collateral under the Credit Agreements) held by Sears Outlet Stores, LLC or Outlet Merchandising, LLC shall be distributed to the Company prior to the Outlet Sale Closing, other than cash held in stores in the ordinary course of business.

Transaction Structure. A Third Party buyer Pursuant to and in accordance with this Section 2.09 and Section 5.14, the Buyer agrees to consummate the transactions contemplated by this Agreement by acquiring all of the newly issued shares of Reorganized RentPath (the “Outlet BuyerReorganized Equity”) will free and clear of all Liens pursuant to and in accordance with the terms and conditions set forth in the Plan and the Confirmation Order (the “Stock Transaction”), as specifically set forth in Exhibit E, instead of directly effectuating the sales, transfers, assignments, conveyances, deliveries and assumptions set forth in Sections 2.01 and 2.02; provided, the Buyer shall acquire the Outlet Segment pursuant to an Outlet Purchase Agreement. The Outlet Buyer will Reorganized Equity free and clear of all Liens, only after (ix) acquire all of the existing equity, all rights to equity of Sears Outlet Stores, LLC and Outlet Merchandising, LLC and any or all of the other Outlet Segment assets specified on Annex V as agreed between the Company and the Outlet Buyer (together, the “Outlet Assets”) and (ii) assume and agree rights to pay, perform and discharge all liabilities and obligations acquire equity of the Company and its Subsidiaries primarily arising out of or relating to the Outlet Segment (together, the “Outlet Liabilities”) without further recourse to the Company or any of its Subsidiaries (other than in connection with (x) the Transition Assistance described in Item 5 beloware cancelled, (y) the Post-Closing Obligations described in Item 8 below discharge, release and/or exculpation (and injunction) of all Excluded Liabilities and Liens (other than Permitted Liens) on the Acquired Assets pursuant to the Plan and Confirmation Order and (z) a customary post-closing mechanism to true-up actual closing Net Working Capital to the amount estimated for purposes transfer, assumption and assignment of calculating all Excluded Assets (including the closing payment as further described equity in Item 2 below). For the avoidance of doubt, the Outlet Buyer shall assume all of the Outlet Liabilities upon the closing of the Outlet Sale (the “Outlet Sale Closing”), whether or not the Outlet Assets associated with such Outlet Liabilities are transferred to the Outlet Buyer. For example, the Outlet Liabilities shall include the liabilities and obligations Subsidiaries of the Company and its Subsidiaries under any Real Property Lease primarily used or other equity interests held for use by the Company in other Persons) and Excluded Liabilities to the Wind Down Co., as provided in the conduct Plan and Confirmation Order, such that immediately prior to the Buyer acquiring the Reorganized Equity, the only assets and liabilities held by Reorganized RentPath shall be the Acquired Assets and Assumed Liabilities. The consideration payable by the Buyer in respect of the Outlet SegmentStock Transaction shall be the Purchase Price, whether or not the Company and the Outlet Buyer determine to include such lease as an Outlet Asset. Any cash (but, for the avoidance of doubt, not all cash equivalents, including credit card receivables that are eligible consideration paid by the Buyer to be pledged as collateral satisfy the Purchase Price under the Credit Agreements) held by Sears Outlet Stores, LLC or Outlet Merchandising, LLC this Section 2.09 shall be distributed paid to an account designated by the Sellers or Wind Down Co., as applicable. All of the terms set forth in this Agreement shall be applicable and fully enforceable with respect to such Stock Transaction in a manner that gives effect to the Company prior to the Outlet Sale Closing, other than cash held in stores in the ordinary course of businesstransactions contemplated by this Section 2.09.

Transaction Structure. A Third Party buyer (In the “Outlet Buyer”) will acquire the Outlet Segment pursuant to an Outlet Purchase Agreement. The Outlet Buyer will event that (i) acquire all of the equity of Sears Outlet Stores, LLC consent set forth in Schedule 4(a)(iv) is not reasonably expected to be obtained (and Outlet Merchandising, LLC in any event if such consent has not been obtained within five (5) business days prior to the scheduled Closing Date set forth in Section 3(a)) and any or all of Buyer has not waived the other Outlet Segment assets specified on Annex V as agreed between the Company and the Outlet Buyer (together, the “Outlet Assets”condition set forth in Section 4(a)(iv) and (ii) assume Seller and agree Buyer are not able to pay, perform and discharge all liabilities and obligations reach an agreement on the terms of the Company Alternative Agreement despite the use of commercially reasonable best efforts and its Subsidiaries primarily arising out good faith in the negotiation thereof as required by Section 9(a)(iv), Buyer shall cooperate with Seller, at Seller’s request, to amend and modify this Agreement and the other agreements contemplated hereby, in such manner as reasonably requested by Seller to implement an alternative structure for the transfer of the Business to Buyer from that contemplated in this Agreement provided such amended Agreement shall contain the provisions (“Required Provisions”) set forth below in form reasonably satisfactory to Seller (or relating to Alternative Seller, as defined below) and Buyer. Without limiting the Outlet Segment (togethergenerality of the foregoing, the “Outlet Liabilities”) without further recourse to alternative structure may take the Company or any form of its Subsidiaries (other than in connection with (x) the Transition Assistance described in Item 5 below, (y) the Post-Closing Obligations described in Item 8 below and (z1) a customary post-closing mechanism to true-up actual closing Net Working Capital to sale of stock of Seller by the amount estimated for purposes stockholders of calculating the closing payment as further described in Item 2 below). For the avoidance of doubt, the Outlet Buyer shall assume all of the Outlet Liabilities upon the closing of the Outlet Sale Seller (the “Outlet Sale Closing338(h)(10) Alternative”), whether or not the Outlet Assets associated with such Outlet Liabilities are transferred to the Outlet Buyer. For example(2) a sale of stock of Seller (which, the Outlet Liabilities shall include the liabilities and obligations of the Company and its Subsidiaries under any Real Property Lease primarily used or held for use in the conduct of the Outlet Segmentthis alternative, whether or not the Company and the Outlet Buyer determine to include such lease as an Outlet Asset. Any cash (but, for the avoidance of doubt, not cash equivalents, including credit card receivables that are eligible would elect to be pledged treated as collateral under a qualified subchapter S subsidiary within the Credit Agreements) held by Sears Outlet Stores, LLC or Outlet Merchandising, LLC shall be distributed to the Company meaning of Code Section 1361 prior to the Outlet Sale ClosingClosing Date) by a new entity (“Alternative Seller”) treated as an S corporation for federal income tax purposes and formed for the purpose of holding the capital stock of Seller (the “QSSS Alternative”), other than cash held in stores or (3) a sale of the equity interests of a limited liability company (the “Successor”) that is a successor (by merger or conversion) of Seller that does not elect to be treated as a corporation for federal income Tax purposes (the “Successor Alternative”). The Required Provisions shall (A) provide for the purchase and sale of the shares of capital stock of Seller (or equity interests in the ordinary course Successor, if applicable) in lieu of businessthe Assets, (B) require the filing of an election under Code Section 338(h)(10), and any corresponding election under state, local, and foreign Tax law with respect to the purchase of the shares of capital stock of Seller if the 338(h)(10) Alternative is selected, and (C) provide for the transfer of any Excluded Assets to the Seller’s assignee or assignees and the assumption by the Alternative Seller of any Excluded Liabilities. The alternative structure shall be selected by Buyer and shall be reasonably acceptable to the Seller, provided that the parties hereto agree the Successor Alternative shall be reasonably acceptable to Seller in the event that no change in any Tax law that would reasonably be expected to have a material adverse impact on the Tax consequences to Seller or Alternative Seller (or their respective stockholders or equityholders, as applicable) of such alternative occurs on or before the Closing Date. Notwithstanding anything to the contrary in this Section 9(j), Buyer need not accept an alternative structure unless such alternative structure delivers substantially the same economic result (including asset step-up basis for tax purposes) and would not have a material adverse effect on Buyer or its Affiliates.

Transaction Structure. A Third Party buyer Pursuant to and in accordance with this Section 2.08 and Section 5.13, the Buyer will consummate the transactions contemplated by this Agreement by acquiring all of the newly issued shares of Reorganized RentPath (the “Outlet BuyerReorganized Equity”) will free and clear of all Liens, Claims and interests (other than Permitted Liens) pursuant to and in accordance with the terms and conditions set forth in the Plan and the Confirmation Order (the “Stock Transaction”), as specifically set forth in Exhibit F, instead of directly effectuating the sales, transfers, assignments, conveyances, deliveries and assumptions set forth in Section 2.01 and Section 2.02; provided, however, that the Buyer shall acquire the Outlet Segment pursuant to an Outlet Purchase Agreement. The Outlet Buyer will Reorganized Equity free and clear of all Liens, Claims and interests (iother than Permitted Liens) acquire only after (a) all of the existing equity, all rights to equity and all rights to acquire equity of Sears Outlet Stores, LLC and Outlet Merchandising, LLC and any or all of the other Outlet Segment assets specified on Annex V as agreed between the Company are cancelled, (b) the discharge, release and/or exculpation (and injunction) of all Excluded Liabilities and Liens (other than Permitted Liens) on the Outlet Buyer (togetherAcquired Assets pursuant to the Plan and Confirmation Order, the “Outlet Assets”) and (iic) assume the transfer, assumption and agree to pay, perform and discharge assignment of all liabilities and obligations Excluded Assets (including the equity in Subsidiaries of the Company and its Subsidiaries primarily arising out of or relating any other equity interests held by the Company in other Persons) and Excluded Liabilities to Wind Down Co., as provided in the Plan and Confirmation Order, such that immediately prior to the Outlet Segment (togetherBuyer acquiring the Reorganized Equity, the “Outlet only assets and liabilities held by Reorganized RentPath shall be the Acquired Assets and Assumed Liabilities”) without further recourse to . The consideration payable by the Company or any of its Subsidiaries (other than Buyer in connection with (x) the Transition Assistance described in Item 5 below, (y) the Post-Closing Obligations described in Item 8 below and (z) a customary post-closing mechanism to true-up actual closing Net Working Capital to the amount estimated for purposes of calculating the closing payment as further described in Item 2 below). For the avoidance of doubt, the Outlet Buyer shall assume all respect of the Outlet Liabilities upon Stock Transaction shall be the closing of the Outlet Sale (the “Outlet Sale Closing”)Purchase Price, whether or not the Outlet Assets associated with such Outlet Liabilities are transferred to the Outlet Buyer. For example, the Outlet Liabilities shall include the liabilities and obligations of the Company and its Subsidiaries under any Real Property Lease primarily used or held for use in the conduct of the Outlet Segment, whether or not the Company and the Outlet Buyer determine to include such lease as an Outlet Asset. Any cash (but, for the avoidance of doubt, not all cash equivalents, including credit card receivables that are eligible consideration paid by the Buyer to be pledged as collateral satisfy the Purchase Price under the Credit Agreements) held by Sears Outlet Stores, LLC or Outlet Merchandising, LLC this Agreement shall be distributed paid to an account designated by the Sellers or Wind Down Co., as applicable. Wind Down Co. shall take all steps required by the Plan and Confirmation Order with respect to the Company prior Excluded Liabilities pursuant to and in accordance with the Plan and the Confirmation Order. All of the terms set forth in this Agreement shall be applicable and fully enforceable with respect to such Stock Transaction in a manner that gives effect to the Outlet Sale Closing, other than cash held in stores in the ordinary course of businesstransactions contemplated by this Section 2.08.