Common use of To Purchaser Clause in Contracts

To Purchaser. In obtaining a consent, Seller may not agree to a modification of a lease without the prior written consent of Purchaser. (b) If Seller is unable to obtain any consent with respect to a Consent Lease prior to the Closing, then provided all other conditions to Closing have been fulfilled or waived, Purchaser and Seller shall nonetheless be obligated to close the transactions contemplated hereby. (c) Subject to the limitations specified below, Seller shall, within ten days after Purchaser's notice to Seller of incurrence of a covered expense, indemnify Purchaser for all amounts paid to landlords by Purchaser (including, without limitation, any increase in rent) and out-of-pocket expenses (including, without limitation, reasonable attorneys' fees and defense costs pursuant to Section 6.09(d) below) incurred by Purchaser in connection with continuing the Company's tenancy under any Consent Lease by reason of Seller's failure to obtain a consent prior to the Closing. (d) Purchaser shall defend in good faith with counsel reasonably acceptable to Seller all litigation or proceedings brought by landlords with respect to Consent Leases as to which Seller failed to obtain a consent. Purchaser shall control all such litigation and proceedings, however, Seller shall be entitled to participate in such defense at its own cost with counsel of its own choosing and Purchaser shall consult with Seller in respect of all major decisions relating to such defense. Purchaser shall not settle any such litigation or proceeding except with the prior written consent of Seller, which shall not be unreasonably withheld or delayed. Moreover, Purchaser and its counsel shall present evidence and justification to Seller in reasonable detail for all amounts for which indemnification is sought under this Section 6.09. This Section 6.09(d) shall only apply to litigation or proceedings for which Seller has an indemnity obligation under Section 6.09(c). (e) In no event shall Seller be liable, in the aggregate, for indemnification under this Section 6.09 in an amount greater than $650,000 (the "Limit"). In addition, and without regard to the Limit, in the event a final, unappealable judgment or order of a court having jurisdiction results in the eviction of the Company from, or an order to vacate, a store subject to a Consent Lease by reason of Seller's failure to have obtained a consent prior to the Closing, then Seller shall pay Purchaser $320,000 with respect to the loss of that store; provided further, that with respect to the stores listed on Schedule 6.09(a), the amount so payable with respect to the loss of any store so listed shall be $110,000; and further provided, however, that neither Purchaser nor the Company shall be required to appeal any eviction judgment or order to vacate of (i) a Florida court relating to a Consent Lease for a store located in Florida or (ii) a Georgia court relating to a Consent Lease for a store located in Georgia if prior to the date of such order, either the Georgia Supreme Court,

To Purchaser. In obtaining a consentThe acceptance of such deed at Closing, Seller may not agree shall be deemed to a modification be full performance of, and discharge of, every agreement and obligation on Seller's part to be performed under this Purchase Contract, except for those that this Purchase Contract specifically provides shall survive Closing. 7.2.1.2 A Xxxx of a lease Sale without recourse or warranty in the prior written consent of Purchaser. form attached as Exhibit 7.2.1.2 covering all Property Contracts, Commercial Leases, Permits (bother than Excluded Permits) If Seller is unable and Fixtures and Tangible Personal Property required to obtain any consent be transferred to Purchaser with respect to a Consent Lease prior such Property. Purchaser shall countersign the same so as to effect an assumption by Purchaser of, among other things, Seller's obligations thereunder. 7.2.1.3 An Assignment (to the Closingextent assignable and in force and effect) without recourse or warranty in the form attached as Exhibit 7.2.1.3 of all of Seller's right, then provided all other conditions to Closing have been fulfilled or waived, Purchaser title and Seller shall nonetheless be obligated to close the transactions contemplated hereby. (c) Subject interest in and to the limitations specified belowMiscellaneous Property Assets, Seller shallsubject to any required consents. Purchaser shall countersign the same so as to effect an assumption by Purchaser, within ten days after Purchaser's notice to Seller of incurrence of a covered expense, indemnify Purchaser for all amounts paid to landlords by Purchaser (including, without limitation, any increase in rent) and out-of-pocket expenses (including, without limitation, reasonable attorneys' fees and defense costs pursuant to Section 6.09(d) below) incurred by Purchaser in connection with continuing the Company's tenancy under any Consent Lease by reason of Seller's failure to obtain a consent prior to obligations thereunder. 7.2.1.4 A closing statement executed by Seller. 7.2.1.5 A vendor's affidavit or at Seller's option an indemnity, as applicable, in the Closing. (d) Purchaser shall defend in good faith with counsel customary form reasonably acceptable to Seller all litigation or proceedings brought by landlords with respect to Consent Leases as enable Title Insurer to which Seller failed to obtain a consent. Purchaser shall control all such litigation and proceedings, however, Seller shall be entitled to participate in such defense at its own cost with counsel of its own choosing and Purchaser shall consult with Seller in respect of all major decisions relating to such defense. Purchaser shall not settle any such litigation or proceeding except with delete the prior written consent of Seller, which shall not be unreasonably withheld or delayed. Moreover, Purchaser and its counsel shall present evidence and justification to Seller in reasonable detail for all amounts for which indemnification is sought under this Section 6.09. This Section 6.09(d) shall only apply to litigation or proceedings for which Seller has an indemnity obligation under Section 6.09(c). (e) In no event shall Seller be liable, in the aggregate, for indemnification under this Section 6.09 in an amount greater than $650,000 (the "Limit"). In addition, and without regard standard exceptions to the Limit, title insurance policy set forth in this Purchase Contract (other than matters constituting any Permitted Exceptions and matters which are to be completed or performed post- Closing) to be issued pursuant to the event a final, unappealable judgment or order of a court having jurisdiction results in the eviction of the Company fromTitle Commitments; provided that such affidavit does not subject Seller to any greater liability, or an order to vacateimpose any additional obligations, a store subject to a Consent Lease by reason other than as set forth in this Purchase Contract; and 7.2.1.6 A certification of Seller's failure non-foreign status pursuant to have obtained a consent prior Section 1445 of the Internal Revenue Code of 1986, as amended. 7.2.1.7 Except for the items expressly listed above to be delivered at Closing, delivery of any other required items shall be deemed made by Seller to Purchaser, if Seller leaves such documents at the Property in their customary place of storage or in the custody of Purchaser's representatives. 7.2.1.8 To the extent in Seller's possession or control, original copies of the Commercial Leases and Property Contracts, lease files, keys to the Closingproperty, then Seller shall pay Purchaser $320,000 with respect to Seller's books and records (other than proprietary information) regarding the loss Property, and original copies of that store; provided further, that with respect to the stores listed on Schedule 6.09(a), the amount so payable with respect to the loss of any store so listed shall be $110,000; and further provided, however, that neither Purchaser nor the Company shall be required to appeal any eviction judgment or order to vacate of (i) a Florida court relating to a Consent Lease for a store located in Florida or (ii) a Georgia court relating to a Consent Lease for a store located in Georgia if prior to the date of such order, either the Georgia Supreme Court,tenant estoppels. 7.2.2

To Purchaser. In obtaining a consentThe acceptance of the deed at Closing, Seller may not agree shall be deemed to a modification of a lease without the prior written consent of Purchaserbe full performance of, and discharge of, every agreement and obligation on Seller's part to be performed under this Purchase Contract, except for those that this Purchase Contract specifically provides shall survive Closing. (bii) If Seller is unable A Bill of Sale without recourse or warranty in the form attached as Exhxxxx 7.2.1.2 covering all Property Contracts, Commercial Leases, Permits (other than Excluded Permits) and Fixtures and Tangible Personal Property required to obtain any consent be transferred to Purchaser with respect to a Consent Lease prior such Property. Purchaser shall countersign the same so as to the Closingeffect an assumption by Purchaser, then provided all other conditions to Closing have been fulfilled or waived, Purchaser and Seller shall nonetheless be obligated to close the transactions contemplated hereby. (c) Subject to the limitations specified below, Seller shall, within ten days after Purchaser's notice to Seller of incurrence of a covered expense, indemnify Purchaser for all amounts paid to landlords by Purchaser (including, without limitation, of Seller's obligations thereunder. (iii) An Assignment (to the extent assignable and in force and effect) without recourse or warranty in the form attached as Exhibit 7.2.1.3 of all of Seller's right, title and interest in and to the Miscellaneous Property Assets, subject to any increase in rent) and out-of-pocket expenses (required consents. Purchaser shall countersign the same so as to effect an assumption by Purchaser, including, without limitation, reasonable attorneys' fees and defense costs pursuant to Section 6.09(d) below) incurred by Purchaser in connection with continuing the Company's tenancy under any Consent Lease by reason of Seller's failure to obtain a consent prior to the Closingobligations thereunder. (div) Purchaser shall defend A closing statement executed by Seller. (v) A vendor's affidavit, or at Seller's option an indemnity, as applicable, in good faith with counsel the customary form reasonably acceptable to Seller all litigation or proceedings brought by landlords with respect to Consent Leases as enable Title Insurer to which Seller failed to obtain a consent. Purchaser shall control all such litigation and proceedings, however, Seller shall be entitled to participate in such defense at its own cost with counsel of its own choosing and Purchaser shall consult with Seller in respect of all major decisions relating to such defense. Purchaser shall not settle any such litigation or proceeding except with delete the prior written consent of Seller, which shall not be unreasonably withheld or delayed. Moreover, Purchaser and its counsel shall present evidence and justification to Seller in reasonable detail for all amounts for which indemnification is sought under this Section 6.09. This Section 6.09(d) shall only apply to litigation or proceedings for which Seller has an indemnity obligation under Section 6.09(c). (e) In no event shall Seller be liable, in the aggregate, for indemnification under this Section 6.09 in an amount greater than $650,000 (the "Limit"). In addition, and without regard standard exceptions to the Limit, title insurance policy set forth in this Purchase Contract to be issued pursuant to the event a final, unappealable judgment or order of a court having jurisdiction results in the eviction of the Company from, or an order to vacate, a store subject to a Consent Lease by reason Title Commitments; and (vi) A certification of Seller's failure non-foreign status pursuant to have obtained a consent prior Section 1445 of the Internal Revenue Code of 1986, as amended. (vii) Except for the items expressly listed above to be delivered at Closing, delivery of any other required items shall be deemed made by Seller to Purchaser, if Seller leaves such documents at the Property in their customary place of storage or in the custody of Purchaser's representatives. (viii) To the extent in Seller's possession or control, original copies of the Commercial Leases and Property Contracts, lease files, keys to the Closingproperty, then Seller shall pay Purchaser $320,000 with respect to Seller's books and records (other than proprietary information) regarding the loss Property, and original copies of that store; provided further, that with respect to the stores listed on Schedule 6.09(atenant estoppels. (b), the amount so payable with respect to the loss of any store so listed shall be $110,000; and further provided, however, that neither Purchaser nor the Company shall be required to appeal any eviction judgment or order to vacate of (i) a Florida court relating to a Consent Lease for a store located in Florida or (ii) a Georgia court relating to a Consent Lease for a store located in Georgia if prior to the date of such order, either the Georgia Supreme Court,

To Purchaser. In obtaining a consentThe acceptance of the deed at Closing, Seller may not agree shall be deemed to a modification of a lease without the prior written consent of Purchaserbe full performance of, and discharge of, every agreement and obligation on Seller's part to be performed under this Purchase Contract, except for those that this Purchase Contract specifically provides shall survive Closing. (bii) If Seller is unable A Bill of Sale without recourse or warranty in the form attached as Exhxxxx 7.2.1.2 covering all Property Contracts, Commercial Leases, Permits (other than Excluded Permits) and Fixtures and Tangible Personal Property required to obtain any consent be transferred to Purchaser with respect to a Consent Lease prior such Property. Purchaser shall countersign the same so as to the Closingeffect an assumption by Purchaser, then provided all other conditions to Closing have been fulfilled or waived, Purchaser and Seller shall nonetheless be obligated to close the transactions contemplated hereby. (c) Subject to the limitations specified below, Seller shall, within ten days after Purchaser's notice to Seller of incurrence of a covered expense, indemnify Purchaser for all amounts paid to landlords by Purchaser (including, without limitation, of Seller's obligations thereunder. (iii) An Assignment (to the extent assignable and in force and effect) without recourse or warranty in the form attached as Exhibit 7.2.1.3 of all of Seller's right, title and interest in and to the Miscellaneous Property Assets, subject to any increase in rent) and out-of-pocket expenses (required consents. Purchaser shall countersign the same so as to effect an assumption by Purchaser, including, without limitation, reasonable attorneys' fees and defense costs pursuant to Section 6.09(d) below) incurred by Purchaser in connection with continuing the Company's tenancy under any Consent Lease by reason of Seller's failure to obtain a consent prior to the Closingobligations thereunder. (div) Purchaser shall defend A closing statement executed by Seller. (v) A vendor's affidavit, or at Seller's option an indemnity, as applicable, in good faith with counsel the customary form reasonably acceptable to Seller all litigation or proceedings brought by landlords with respect to Consent Leases as enable Title Insurer to which Seller failed to obtain a consent. Purchaser shall control all such litigation and proceedings, however, Seller shall be entitled to participate in such defense at its own cost with counsel of its own choosing and Purchaser shall consult with Seller in respect of all major decisions relating to such defense. Purchaser shall not settle any such litigation or proceeding except with delete the prior written consent of Seller, which shall not be unreasonably withheld or delayed. Moreover, Purchaser and its counsel shall present evidence and justification to Seller in reasonable detail for all amounts for which indemnification is sought under this Section 6.09. This Section 6.09(d) shall only apply to litigation or proceedings for which Seller has an indemnity obligation under Section 6.09(c). (e) In no event shall Seller be liable, in the aggregate, for indemnification under this Section 6.09 in an amount greater than $650,000 (the "Limit"). In addition, and without regard standard exceptions to the Limit, title insurance policy set forth in this Purchase Contract to be issued pursuant to the event a final, unappealable judgment or order of a court having jurisdiction results in the eviction of the Company from, or an order to vacate, a store subject to a Consent Lease by reason Title Commitments; and (vi) A certification of Seller's failure non-foreign status pursuant to have obtained a consent prior Section 1445 of the Internal Revenue Code of 1986, as amended. (vii) Except for the items expressly listed above to be delivered at Closing, delivery of any other required items shall be deemed made by Seller to Purchaser, if Seller leaves such documents at the Property in their customary place of storage or in the custody of Purchaser's representatives. (viii) To the extent in Seller's possession or control, original copies of the Commercial Leases and Property Contracts, lease files, keys to the Closingproperty, then Seller shall pay Purchaser $320,000 with respect to Seller's books and records (other than proprietary information) regarding the loss Property, and original copies of that store; provided further, that with respect to the stores listed on Schedule 6.09(atenant estoppels. (B), the amount so payable with respect to the loss of any store so listed shall be $110,000; and further provided, however, that neither Purchaser nor the Company shall be required to appeal any eviction judgment or order to vacate of (i) a Florida court relating to a Consent Lease for a store located in Florida or (ii) a Georgia court relating to a Consent Lease for a store located in Georgia if prior to the date of such order, either the Georgia Supreme Court,

To Purchaser. In obtaining a consentAt the Closing, so long as adequate assurance of future performance thereof by Purchaser has been demonstrated to the Bankruptcy Court’s satisfaction and Purchaser has paid its portion of any Cure Cost with respect thereto and, if applicable, any Purchaser Exclusive Costs, in each case, pursuant to Section 1.3 above, Seller may not agree shall assign, transfer, convey and deliver (or cause to a modification be assigned, transferred, conveyed and delivered) to Purchaser, and Purchaser shall assume from Seller, all of a lease without Seller’s right, title and interest in and to all Contracts listed on Schedule 1.1(a) and 1.1(b) (as each such schedule is amended in accordance with the prior written consent provisions hereof); provided, however, Purchaser acknowledges that, while Seller shall use commercially reasonable efforts to cause the same to be assumed and assigned to Purchaser at the Closing, Seller’s assumption and assignment of Purchaser. any Contract added to either Schedule 1.1(a) or 1.1(b) after the date which is twenty-two (b22) If Seller is unable to obtain any consent with respect to a Consent Lease days prior to the Closing, then provided all other conditions Sale Hearing shall not be a condition to Closing have been fulfilled or waived, Purchaser and Seller shall nonetheless be obligated Purchaser’s obligation to close consummate the transactions contemplated hereby. (c) Subject to the limitations specified below, Seller shall, within ten days after Purchaser's notice to Seller of incurrence of a covered expense, indemnify Purchaser for all amounts paid to landlords by Purchaser (including, without limitation, any increase in rent) and out-of-pocket expenses (including, without limitation, reasonable attorneys' fees and defense costs pursuant to Section 6.09(d) below) incurred by Purchaser in connection with continuing the Company's tenancy under any Consent Lease by reason of Seller's failure to obtain a consent prior to the Closingherein. (d) Purchaser shall defend in good faith with counsel reasonably acceptable to Seller all litigation or proceedings brought by landlords with respect to Consent Leases as to which Seller failed to obtain a consent. Purchaser shall control all such litigation and proceedings, however, Seller shall be entitled provide timely and proper notice to participate in such defense at its own cost with counsel of its own choosing all parties to Assumed Contracts and Assumed Leases, including any Contract designated for assumption, pursuant to the Bid Procedures Order, and Purchaser shall consult provide Seller with evidence of adequate assurance of future performance consistent with section 365 of the Bankruptcy Code. Seller in respect shall take all other commercially reasonable actions necessary to cause such Assumed Contracts to be assumed by Seller and assigned to Purchaser pursuant to Section 365 of all major decisions relating to such defense. Purchaser shall not settle any such litigation or proceeding except with the prior written consent of Seller, which shall not be unreasonably withheld or delayed. Moreover, Purchaser and its counsel shall present evidence and justification to Seller in reasonable detail for all amounts for which indemnification is sought under this Section 6.09. This Section 6.09(d) shall only apply to litigation or proceedings for which Seller has an indemnity obligation under Section 6.09(c)Bankruptcy Code. (e) In no event shall Seller be liable, in Upon the aggregate, for indemnification under this Section 6.09 in an amount greater than $650,000 (the "Limit"). In addition, and without regard to the Limit, in the event a final, unappealable judgment or order occurrence of a court having jurisdiction results in the eviction of the Company from, or an order to vacate, a store subject to a Consent Lease by reason of Seller's failure to have obtained a consent prior to the Closing, then any Contract not designated as an Assumed Contract or Assumed Lease, including pursuant to Section 1.8(d), shall, unless otherwise an Asset, be deemed to be an Excluded Asset; provided that, any such Contract shall be subject to assumption by Seller and assignment to Purchaser pursuant to Section 4.16, and Seller shall pay provide not less than five (5) days’ written notice to Purchaser $320,000 with respect to the loss of that store; provided further, that with respect to the stores listed on Schedule 6.09(a), the amount so payable with respect to the loss of any store so listed shall be $110,000; and further provided, however, that neither Purchaser nor the Company shall be required to appeal any eviction judgment or order to vacate of (i) a Florida court relating to a Consent Lease for a store located in Florida or (ii) a Georgia court relating to a Consent Lease for a store located in Georgia if prior to the date of rejecting any such order, either the Georgia Supreme Court,Contract. 1.9