Consummation The Sears Stockholder, FS Stockholder ------------ or Ripplewood Stockholder shall have 90 days from the date of the Final Notice or Ripplewood Final Notice, respectively, in which to sell to the Third Party the shares of Common Stock owned by the Sears Stockholder, FS Stockholder or Ripplewood Stockholder and the Included Shares of the other Stockholders having Tag-Along Rights on terms which are not materially less favorable to the sellers of shares of Common Stock than those specified in the applicable Initial Offer Notice; provided, however, that in -------- ------- the event there is a decrease in the price to be paid by the Third Party for the shares of Common Stock to be sold from the price set forth in the Initial Offer Notice or the Ripplewood Initial Offer Notice, as applicable, which decrease is acceptable to the Sears Stockholder, FS Stockholder (in the case of a Third Party Offer) or Ripplewood Stockholder (in the case of a Ripplewood Third Party Offer), or other material change in terms which are less favorable to the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, but which are acceptable to the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, shall notify the participating Stockholders of such decrease or change in terms, and each of the participating Stockholders shall have five business days from the date of receipt of the notice of such decrease or change in terms to reduce the number of shares of Common Stock it will sell to such Third Party as previously indicated in the applicable Acceptance Notice and the number of shares that all other participating stockholders (including Other Tag-Along Rights Holders) may transfer shall be increased in accordance with the provisions of Section 3.3; and provided, further, that in -------- ------- the event there is an increase in the price to be paid by the Third Party for the shares of Common Stock to be sold from the price set forth in the applicable Initial Offer Notice or other material change in terms which are more favorable to the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, shall notify the other Stockholders of such increase or change in terms, and each of the Stockholders who was eligible to but did not elect to participate to the full extent of their rights hereunder shall have five business days from the date of receipt of the notice of such increase or change in terms to increase the number of shares of Common Stock it will sell to such Third Party, and the number of shares that all other participating stockholders (including other Tag-Along Rights Holders) may transfer shall be decreased proportionately if necessary. A Third Party purchaser of shares of Common Stock which complies with this Section 3 shall not be subject to the obligations contained in this Section 3 with respect to future sales of their shares. The Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, shall cause to be remitted to the participating Stockholders the total sales price of the Included Shares of the participating Stockholders sold pursuant thereto, which consideration shall be in the same form and per share amount as the consideration received by the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, and as specified in the Initial Offer Notice (or Ripplewood Initial Offer Notice, as applicable), net (i) in an exercise of Tag-Along Rights by an Existing Stockholder, of the reasonable, incremental out-of-pocket expenses incurred by the FS Stockholder or Sears Stockholder in connection with such sale as a result of the Existing Stockholders' participation therein or (ii) in an exercise of Tag-Along Rights by the Sears Stockholder, the Ripplewood Stockholder or the FS Stockholder, of the pro rata portion (based on the number of shares of Common Stock included by each Stockholder compared to the aggregate number of shares of Common Stock included in such sale) of the reasonable out-of-pocket expenses incurred in connection with a sale consummated pursuant to this Section 3. The Sears Stockholder, FS Stockholder or Ripplewood Stockholder shall furnish, or shall cause to be furnished, such other evidence of the completion and time of completion of such sale and the terms thereof as may be reasonably requested by the participating Stockholders including, without limitation, evidence of the expenses incurred by the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, in connection with such sale. If and to the extent that, at the end of 90 days following the date of the Final Notice (or Ripplewood Final Notice, as applicable), the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, has not completed the sale contemplated thereby, the Sears Stockholder, FS Stockholder or Ripplewood Stockholder, as the case may be, shall return to the participating Stockholders all certificates representing the Included Shares and all powers-of-attorney which the participating Stockholders may have transmitted pursuant to the terms hereof.
CONDITIONS TO CONSUMMATION OF MERGER 35 5.1 Conditions to Each Party's Obligations........................................................ 35 5.2 Conditions to Obligations of the Parent and the Acquisition Subsidiary........................ 36 5.3 Conditions to Obligations of the Company...................................................... 37
The Transactions (a) Subject to the terms and conditions of the Program Documents, Buyer hereby agrees to enter into Transactions with an aggregate Purchase Price for all Purchased Loans acquired by Buyer not to exceed the Maximum Aggregate Purchase Price. Unless otherwise agreed, Seller shall give Buyer and Custodian notice of any proposed purchase, with respect to all Mortgage Loans, prior to 5:00 p.m. (New York City time) one (1) Business Day prior to the proposed Purchase Date (the date on which any such notice is so given, the “Notice Date”), (ii) deliver a Mortgage Loan Schedule and a Mortgage Loan Transmission to Buyer and Custodian on such Notice Date, and, (iii) with respect to all Mortgage Loans other than Wet Loans, deliver the Mortgage File to Custodian in accordance with the Custodial Agreement. (b) Seller shall repurchase Purchased Loans from Buyer on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Loan. Seller is obligated to obtain the Purchased Loans from Buyer or its designee (including the Custodian) at Seller’s expense on (or after) the related Repurchase Date. (c) Provided that the applicable conditions in Sections 10(a) and (b) have been satisfied, each Purchased Loan that is repurchased by the Seller on the Repurchase Date shall automatically become subject to a new Transaction unless Buyer is otherwise notified by the Seller at least one (1) Business Day prior to any such Repurchase Date; provided that if the Repurchase Date so determined is later than the Termination Date, the Repurchase Date for such Transaction shall automatically reset to the Termination Date, and the provisions of this sentence as it might relate to a new Transaction shall expire on such date. For each new Transaction, unless otherwise agreed, (y) the accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (z) the Pricing Rate shall be as set forth in the Pricing Side Letter. (d) If Seller repurchases Purchased Loans on any day which is not a Repurchase Date for such Purchased Loans, Seller shall indemnify Buyer and hold Buyer harmless from any losses, costs and/or expenses which Buyer may sustain or incur arising from the reemployment of funds obtained by Buyer hereunder or from fees payable to terminate the deposits from which such funds were obtained (“Breakage Costs”), in each case for the remainder of the applicable 30 day period. Buyer shall deliver to Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by Buyer to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Seller, absent manifest error. The provisions of this Section 3(d) shall survive termination of this Agreement and the repurchase of all Purchased Loans subject to Transactions hereunder.
Consummation of Agreement Seller shall use its best efforts to fulfill and perform all conditions and obligations on its part to be fulfilled and performed under this Agreement, and cause the transactions contemplated by this Agreement to be fully consummated.
Consummation of Merger The parties hereto expressly acknowledge that the consummation of the transactions hereunder is subject to consummation of the Merger. Nothing herein shall be construed to require Seller to consummate the Merger or take steps in furtherance thereof.
