KUTAK ROCK LLP

Steven N. Serajeddini, P.C. (admitted pro hac vice) Michael A. Condyles (VA 27807)

KIRKLAND & ELLIS LLP Peter J. Barrett (VA 46179)

KIRKLAND & ELLIS INTERNATIONAL LLP Jeremy S. Williams (VA 77469)

601 Lexington Avenue Brian H. Richardson (VA 92477)

New York, New York 10022 KUTAK ROCK LLP

Telephone: (212) 446-4800 901 East Byrd Street, Suite 1000

Facsimile: (212) 446-4900 Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

-and- Facsimile: (804) 783-6192

David L. Eaton (admitted pro hac vice)

Jaimie Fedell (admitted pro hac vice)

KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS INTERNATIONAL LLP

300 North La Salle Street

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

LE TOTE, INC., et al.,1 ) Case No. 20-33332 (KLP)

)

Debtors. ) (Jointly Administered)

)

ORDER (A) APPROVING

THE ASSET PURCHASE AGREEMENT,

(B) AUTHORIZING THE SALE OF ASSETS FREE

AND CLEAR OF LIENS, CLAIMS, ENCUMBRANCES, AND

INTERESTS, (C) AUTHORIZING THE ASSUMPTION AND ASSIGNMENT

OF CONTRACTS AND LEASES, AND (D) GRANTING RELATED RELIEF

Upon the motion (the “Motion”) of the above-captioned debtors and debtors-in-possession

(collectively the “Debtors” or “Seller”) for an order (this “Sale Order”), pursuant to sections

363(b), 363(f), and 365 of title 11 of the United States Code (the “Bankruptcy Code”), Rules 2002,

1 A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’

claims and noticing agent at https://cases.stretto.com/letote/. The location of the Debtors’ service address is

250 Vesey Street, 22nd Floor, New York, New York 10281.

Case 20-33332-KLP Doc 477 Filed 10/24/20 Entered 10/25/20 00:43:41 DescImaged Certificate of Notice of 175

2

6004, 6006(f), 9013, and 9014 of the Federal Rules of Bankruptcy Procedure

(the “Bankruptcy Rules”), and Rules 6004-1, 9013-1, and 9022-1(D) of the Local Bankruptcy

Rules of the United States Bankruptcy Court for the Eastern District of Virginia (the “Local

Bankruptcy Rules”) authorizing and approving, among other things, (a) entry into that certain

Asset Purchase Agreement, dated as of October 16, 2020 (as amended, and including all exhibits,

schedules, and annexes thereto, the “APA”),2 by and among Saadia Group LLC (the “Purchaser”)

and Le Tote, Inc., a copy of which is annexed hereto as Exhibit A, (b) the proposed sale

(the “Sale”) of certain of the assets (the “Acquired Assets”) of the Debtors free and clear of all

liens, claims, encumbrances, and interests (together, the “Encumbrances”) pursuant to the terms

of the APA, (c) assumption and assignment of those contracts of the Debtors identified in the APA

and assignment of the Assigned Contracts3 to Purchaser pursuant to the designation rights

procedures set forth in the APA and this Sale Order, and (d) other related relief; and the Court

having entered an order [Docket No. 269] (the “Bid Procedures Order”) approving the bid

procedures (the “Bid Procedures”); and the Court having conducted a hearing on the Motion

commencing on October 20, 2020 (the “Sale Hearing”), at which time all interested parties were

offered an opportunity to be heard with respect to the Motion; and the Court having (i) reviewed

and considered the Motion, all relief related thereto, the objections thereto, and statements of

counsel and the evidence presented in support of the relief requested by the Debtors in the Motion

at the Sale Hearing and (ii) found that, after an extensive marketing process by the Debtors and an

2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the

Motion or in the APA, as applicable.

3 As defined in the APA, Assigned Contracts means “the Contracts that the Sellers are party to as of the Closing so

designated by Purchaser as set forth herein (i) that are exclusively related to the operation of the E-Commerce

Platform, (ii) that are exclusively related to leases for the Equipment located in the Transferred Facility

(the “Leased Equipment”) or (iii) that is a lease for the Transferred Facility (the “Transferred Lease”), in each

case of the foregoing clauses (i), (ii) and (iii), to the extent assignable under applicable Law (collectively,

including Contracts for the Acquired Equipment, the “Assigned Contracts”).


3

Auction having been conducted pursuant to the terms of the Bid Procedures Order on

October 15, 2020, the Purchaser has submitted the highest or otherwise best bid for the Acquired

Assets; and that adequate and sufficient notice of the Bid Procedures, the APA, and all transactions

contemplated thereunder and in this Sale Order were given pursuant to and consistent with the Bid

Procedures Order; and that reasonable and adequate notice of the Motion and Bid Procedures Order

having been provided to all persons required to be served in accordance with the Bankruptcy Code

and the Bankruptcy Rules; and that all interested parties having been afforded an opportunity to

be heard with respect to the Motion and all relief related thereto; and that jurisdiction exists for the

Court to consider the Motion and after due deliberation thereon; and upon the arguments and

statements in support of the Motion presented at the Sale Hearing before the Court; and it appearing

that the relief requested in the Motion is in the best interests of the Debtors, their estates, their

creditors, and other parties in interest; and it further appearing that the legal and factual bases set

forth in the Motion and at the Sale Hearing establish just cause for the relief granted herein; and

after due deliberation thereon; and good and sufficient cause appearing therefor;

THE COURT HEREBY MAKES THE FOLLOWING FINDINGS:4

A. Jurisdiction and Venue. This Court has jurisdiction to consider this Motion under

28 U.S.C. §§ 157 and 1334. This is a core proceeding under 28 U.S.C. § 157(b). Venue of these

chapter 11 cases and the Motion in this District and in the Court is proper pursuant to 28 U.S.C.

§§ 1408 and 1409.

4 Findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of

fact when appropriate. See Bankruptcy Rule 7052.


4

B. Statutory Predicates. The statutory bases for the relief sought in the Motion are

sections 105(a), 363, and 365 of the Bankruptcy Code, Bankruptcy Rules 2002, 6004, 6006, 9007,

and 9014, and Local Bankruptcy Rules 6004-1, 9013-1, and 9022-1(D).

C. Final Order. This Sale Order constitutes a final order within the meaning of

28 U.S.C. § 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), and to any extent

necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as

made applicable by Bankruptcy Rule 7054, this Court expressly finds that there is no just reason

for delay in the implementation of this Sale Order, waives any stay, and expressly directs entry of

judgment as set forth herein.

D. Notice. As evidenced by the certificates of service previously filed with the Court,

proper, timely, adequate, and sufficient notice of the Motion, APA, Sale Hearing, Sale, and the

transactions contemplated thereby has been provided in accordance with the Bid Procedures Order,

sections 363 and 365 of the Bankruptcy Code, and Bankruptcy Rules 2002, 6004, 6006, 9007, and

9008. The Debtors have complied with all obligations to provide notice of the Motion as set forth

in the Bid Procedures Order. The notices described above were good, sufficient, and appropriate

under the circumstances, and no other or further notice of the Motion, APA, Auction, or Sale

Hearing is or shall be required. The disclosures made by the Debtors concerning the Motion, the

APA, the Auctions, and Sale Hearing were good, complete, and adequate. The requirements of

Bankruptcy Rule 6004(a) and the Local Bankruptcy Rules are satisfied by such notice.

E. Assumption and Assignment of Transferred Lease. In accordance with the Bid

Procedures Order, the Debtors served notices of the potential assumption and assignment of the

Assigned Contracts (the “Assumption Notices”), as evidenced by the Affidavits of Service

[Docket Nos. 389, 429], which Assumption Notices identified the Transferred Lease (as defined


5

in the APA) and all defaults and cure amounts to the applicable non-Debtor party resulting from

such defaults including, but not limited to, all claims, demands, charges, rights to refunds, and

monetary and non-monetary obligations that the non-Debtor parties can assert under the

Transferred Lease, whether legal or equitable, secured or unsecured, matured or unmatured,

contingent or non-contingent, liquidated or unliquidated, senior or subordinate, relating to money

now owing or owing in the future, arising under or out of, in connection with, or in any way relating

to the Transferred Lease (the foregoing amounts as stated in the Assumption Notices, collectively

referred to as the “Cure Amounts” and, with respect to the Transferred Lease, the “Transferred

Lease Cure Amount”) upon each non-Debtor counterparty to an Assigned Contract. The service

and provision of the Assumption Notices was good, sufficient, and appropriate under the

circumstances, and no further notice need be given in respect of assumption and assignment of the

Transferred Lease or establishing the Transferred Lease Cure Amount. Non-Debtor counterparties

to the Transferred Lease have had an adequate opportunity to object to assumption and assignment

of the Transferred Lease and the Transferred Lease Cure Amount set forth in the Assumption

Notices (including objections related to the adequate assurance of future performance and

objections based on whether applicable law excuses the non-Debtor counterparty from accepting

performance by, or rendering performance to, Purchaser for purposes of section 365(c)(1) of the

Bankruptcy Code). The deadline to file an objection (an “Assumption Objection”) to the stated

Transferred Lease Cure Amount has expired. To the extent that the applicable counterparty to the

Transferred Lease did not timely file an Assumption Objection by October 16, 2020, at 5:00 p.m.,

(prevailing Eastern Time) (the “Assumption Objection Deadline”), such party is hereby deemed

to have consented to the (i) assumption and assignment of the Transferred Lease and (ii) proposed


6

Transferred Lease Cure Amount set forth on the Assumption Notices (except as otherwise agreed

by the Debtors and the Purchaser).

F. The assumption and assignment of the Transferred Lease pursuant to the terms of

this Sale Order is integral to the APA and is in the best interests of the Debtors and their estates,

their creditors, and all other parties in interest, and represents the reasonable exercise of sound and

prudent business judgment by the Debtors. Payment of the Transferred Lease Cure Amount by

the Debtors or the Purchaser, as applicable, shall (i) to the extent necessary, cure or provide

adequate assurance of cure, within the meaning of sections 365(b)(1)(A) and 365(f)(2)(A) of the

Bankruptcy Code, and (ii) to the extent necessary, provide compensation or adequate assurance of

compensation to any party for any actual pecuniary loss to such party resulting from a default prior

to the date hereof with respect to the Transferred Lease, within the meaning of

sections 365(b)(1)(B) and 365(f)(2)(A) of the Bankruptcy Code. Purchaser’s financial

wherewithal to consummate the transactions contemplated by the APA and the evidence presented

at the Sale Hearing demonstrating Purchaser’s ability to perform the obligations under the

Transferred Lease after the Closing Date shall constitute adequate assurance of future performance

within the meaning of sections 365(b)(1)(C), 365(b)(3) (to the extent applicable), and 365(f)(2)(B)

of the Bankruptcy Code.

G. Designation Rights. Pursuant to Section 1.5 of the APA, the Purchaser shall

maintain certain rights (the “Designation Rights”) to modify the list of Assigned Contracts after

the date of this Sale Order and up to November 5, 2020 (the “Designation Deadline” and the period

from entry of this Sale Order until such Designation Deadline, the “Designation Rights Period”)

as set forth in such section. Such modification rights include, but are not limited to, the right of

the Purchaser, prior to the applicable Designation Deadline, to designate (i) certain Contracts


7

exclusively related to the operation of the E-Commerce Platform or (ii) exclusively related to

leases for the Equipment located in the Transferred Facility (each as defined in the APA) for

assumption by the Debtors and assignment and sale to the Purchaser, as well as for designation of

certain Assigned Contracts that Purchaser no longer wishes to assume (collectively,

the “Designated Contracts”). The Purchaser’s Designation Rights with respect to the Designated

Contracts are in the best interests of the Debtors and their estates, and represent the reasonable

exercise of the Debtors’ sound business judgment. Specifically, the Designation Rights (i) are

necessary to sell the Acquired Assets to the Purchaser, (ii) limit the losses suffered by

counterparties to the Assigned Contracts, and (iii) maximize the recoveries to creditors of the

Debtors by limiting the number and amount of claims against the Debtors’ estates by avoiding the

rejection of the Assigned Contracts. During the Designation Rights Period, the Purchaser intends

to negotiate with the counterparties to Assigned Contracts on terms mutually acceptable for

assumption and assignment of such Assigned Contracts to the Purchaser.

H. Corporate Authority. (i) The Debtors have full corporate power and authority to

execute the APA and all other documents contemplated thereby, and the Debtors’ sale of the

Acquired Assets has been duly and validly authorized by all necessary corporate action, (ii) the

Debtors have all of the corporate power and authority necessary to consummate the transactions

contemplated by the APA, (iii) the Debtors have taken all corporate action necessary to authorize

and approve the APA and the consummation of the transactions contemplated thereby, and (iv) no

consents or approvals, other than those expressly provided for in the APA, are required for the

Debtors to consummate such transactions.

I. The APA was not entered into for the purpose of hindering, delaying, or defrauding

creditors under the Bankruptcy Code or under the laws of the United States, any state, territory,


8

possession, or the District of Columbia. Neither the Debtors nor Purchaser is entering into the

transactions contemplated by the APA fraudulently for the purpose of statutory and common law

fraudulent conveyance and fraudulent transfer claims.

J. The Debtors are the sole and lawful owner of the Acquired Assets. Subject to

sections 363(f) and 365(a) of the Bankruptcy Code, the transfer of each of the Acquired Assets to

Purchaser, in accordance with the APA will be, as of the Closing Date (as defined in the APA), a

legal, valid, and effective transfer of the Acquired Assets, which transfer vests or will vest

Purchaser with all right, title, and interest of the Debtors to the Acquired Assets free and clear of

(a) all liens (including any liens as that term is defined in section 101(37) of the Bankruptcy Code)

and and encumbrances relating to, accruing, or arising at any time prior to the Closing Date

(collectively, the “Liens”), and (b) all debts arising under, relating to, or in connection with any

act of the Debtors or claims (as that term is defined in section 101(5) of the Bankruptcy Code),

liabilities, obligations, demands, guaranties, options in favor of third parties, rights, contractual

commitments, restrictions, interests, mortgages, hypothecations, charges, indentures, loan

agreements, instruments, collective bargaining agreements, leases, licenses, deeds of trust, security

interests, conditional sale or other title retention agreements, pledges, judgments, claims for

reimbursement, contribution, indemnity, exoneration, infringement, products liability, alter-ego,

and matters of any kind and nature, whether arising prior to or subsequent to the commencement

of these cases, and whether imposed by agreement, understanding, law, equity, or otherwise

(including, without limitation, rights with respect to Claims (as defined below) and Liens that (i)

purport to give any party a right of setoff or recoupment against, or a right or option to effect any

forfeiture, modification, profit sharing interest, right of first refusal, purchase or repurchase right

or option, or termination of, any of the Debtors’ or the Purchasers’ interests in the Acquired Assets,


9

or (ii) in respect of taxes, restrictions, rights in respect of taxes, restrictions, rights of first refusal,

charges of interests of any kind or nature, if any, including, without limitation, any restriction of

use, voting, transfer, receipt of income or other exercise of any attributes of ownership)

(collectively, as defined in this clause (b), the “Claims”), relating to, accruing, or arising any time

prior to entry of this Sale Order, with the exception of any such Liens or Claims that are expressly

assumed by the Purchaser under the APA, including the Permitted Encumbrances and Assumed

Liabilities (each as defined in the APA).

K. Sale in Best Interests of the Debtors’ Estates. Good and sufficient reasons for

approval of the APA and the transactions to be consummated in connection therewith have been

articulated, and the relief requested in the Motion is in the best interests of the Debtors, their

estates, their creditors and other parties in interest. The Debtors have demonstrated both (i) good,

sufficient, and sound business purposes and justifications and (ii) compelling circumstances for

the Sale other than in the ordinary course of business, pursuant to section 363(b) of the Bankruptcy

Code, outside of a plan of reorganization, in that, among other things, the immediate

consummation of the Sale to Purchaser is necessary and appropriate to maximize the value of the

Debtors’ estates.

L. The Sale must be approved and consummated promptly in order to maximize the

value of the Debtors’ estates. Time is of the essence in consummating the Sale. Given all of the

circumstances of these chapter 11 cases and the adequacy and fair value of the Purchase Price, the

proposed Sale constitutes a reasonable and sound exercise of the Debtors’ business judgment and

should be approved.

M. The consummation of the Sale and the assumption and assignment of the

Transferred Lease is legal, valid, and properly authorized under all applicable provisions of the


10

Bankruptcy Code, including, without limitation, sections 105(a), 363(b), 363(f), 363(m), and 365

of the Bankruptcy Code, and all of the applicable requirements of such sections have been

complied with in respect of the transaction.

N. On October 15, 2020, the Debtors held the Auctions and selected the APA as the

Successful Bid (as defined in the Bid Procedures).

O. Stalking Horse Protections. ZG Apparel Group LLC (the “Stalking Horse

Bidder”) expended considerable time, financial resources, and energy pursuing the purchase of the

Debtors’ assets. The Debtors have demonstrated a compelling and sound business justification for

entering into an asset purchase agreement with the Stalking Horse Bidder (the “Stalking Horse

APA”) and agreeing to the Break-Up Fee thereunder, including the Staking Horse Bidder’s

agreement to serve as a back-up bidder as set forth in the Stalking Horse APA. The Break-Up Fee

was a material inducement for, and a condition to, the Stalking Horse Bidder’s entry into the

Stalking Horse APA. The Stalking Horse Bidder was unwilling to commit to purchase

the Debtors’ assets under the terms of the Stalking Horse APA unless the Stalking Horse Bidder

was assured the Break-Up Fee.

P. The Debtors have demonstrated that the Break-Up Fee is an actual and necessary

cost and expense of preserving the Debtors’ estates, within the meaning of section 503(b) of the

Bankruptcy Code, and of substantial benefit to the Debtors’ estates by inducing the Stalking Horse

Bidder’s bid, which established a bid standard or minimum for other bidders for the Acquired

Assets, thereby ensuring that the Debtors received the highest or otherwise best bid possible for

the Acquired Assets during the Auction. The Debtors have also demonstrated that the Stalking

Horse Bidder required the Break-Up Fee set forth in the Stalking Horse APA as a condition to

agreeing to be the Stalking Horse Bidder, such Break-Up Fee is reasonable, and such Break-Up


11

Fee is of substantial benefit to the Debtors’ estates. The Break-Up Fee was negotiated at

arm’s-length and is reasonable under the circumstances.

Q. The Break-Up Fee (i) shall be deemed an actual and necessary cost of preserving

the Debtors’ estates within the meaning of section 503(c) of the Bankruptcy Code, (ii) is of

substantial benefit to the Debtors’ estates, (iii) is reasonable and appropriate, including in light of

the size and nature of the transaction and the efforts expended by the Stalking Horse Bidder, and

(iv) enabled the Debtors to promote a sale of the Acquired Assets with the greatest benefit to the

estate.

R. Good Faith of Purchaser and Seller. The APA was negotiated, proposed, and

entered into by the Debtors and Purchaser without collusion, in good faith, and as the result of

arm’s-length bargaining positions and is substantively and procedurally fair to all parties.

Purchaser is not an “insider” of any of the Debtors, as that term is defined in section 101(31) of

the Bankruptcy Code. Neither any of the Debtors nor Purchaser has engaged in any conduct that

would cause or permit the APA to be avoided under section 363(n) of the Bankruptcy Code.

Specifically, Purchaser has not acted in a collusive manner with any person and the Purchase Price

was not controlled by any agreement among bidders. Purchaser is purchasing the Acquired Assets,

in accordance with the APA, in good faith, and is a good faith purchaser within the meaning of

section 363(m) of the Bankruptcy Code and is therefore entitled to all of the protections afforded

by such provision and otherwise has proceeded in good faith in all respects in connection with the

Debtors’ chapter 11 cases. As demonstrated by (i) any testimony and other evidence proffered or

adduced at the Sale Hearing and (ii) the representations of counsel made on the record at the Sale

Hearing, substantial marketing efforts and a competitive sale process were conducted in

accordance with the Bid Procedures Order and, among other things: (a) the Debtors and Purchaser


12

complied with the provisions in the Bid Procedures Order; (b) Purchaser agreed to subject its bid

to the competitive bid procedures set forth in the Bid Procedures Order; (c) Purchaser in no way

induced or caused the chapter 11 filing by the Debtors; and (d) all payments to be made by

Purchaser in connection with the Sale have been disclosed.

S. Auction. A virtual Auction for the Debtors’ assets was held on October 15, 2020.

The Debtors and their professionals robustly marketed the Acquired Assets and conducted (i) the

Auction and the sale process at arm’s-length and in compliance with the Bid Procedures Order,

and afforded potential purchasers a full, fair and reasonable opportunity for any person or entity

to make a higher or otherwise better offer for the Acquired Assets than that reflected in the APA,

and (ii) the sale process (including the Auction) without collusion and in accordance with the Bid

Procedures. Based upon the record of these proceedings, all creditors and other parties in interest

and all prospective purchasers have been afforded a reasonable and fair opportunity to bid for the

Acquired Assets.

T. Joint Transaction. The Bid Procedures provided that bidders may submit bids for

individual Le Tote Assets and Lord & Taylor Assets or any combination of Le Tote Assets and

Lord & Taylor Assets. At the Auction held in accordance with the Bid Procedures and taking into

account the revisions and improvements made to the terms of the Purchaser’s bid, the Debtors, in

the exercise of their business judgment and in consultation with the Consultation Parties,

determined that the Purchaser’s bid for the purchase of the combination of certain Le Tote Assets

and Lord & Taylor Assets pursuant to the terms of the APA (the “Joint Transaction”) was the

highest or otherwise best offer for the Debtors’ Assets, as set forth below.

U. Highest or Otherwise Best Offer. The Bid Procedures were reasonable and

appropriate and represented the best available method for conducting the sale process in a manner


13

that maximizes value for the benefit of the Debtors’ estates. The Debtors’ marketing and sales

process with respect to the Acquired Assets in accordance with the Bid Procedures afforded a full,

fair, and reasonable opportunity for any Person to make a higher or otherwise better offer to

purchase the Acquired Assets. The Debtors conducted a marketing process in accordance with,

and have otherwise complied in all respects with, the Bid Procedures and the Bid Procedures

Order. A reasonable opportunity has been given to any interested party to make a higher or

otherwise better offer for the Acquired Assets. The APA constitutes the highest or otherwise best

offer for the Acquired Assets and will provide a greater recovery for the Debtors’ estates than

would be provided by any other available alternative. The Debtors’ determination that the APA

constitutes the highest or otherwise best offer for the Acquired Assets is a valid and sound exercise

of their fiduciary duties and constitutes a valid and sound exercise of the Debtors’ business

judgment.

V. Consideration. The consideration provided by Purchaser pursuant to the APA

(i) is fair and reasonable, (ii) is the highest or otherwise best offer for the Acquired Assets, and

(iii) constitutes reasonably equivalent value and fair consideration (as those terms are defined in

each of the Uniform Voidable Transactions Act (formally the Uniform Fraudulent Transfer Act),

Uniform Fraudulent Conveyance Act, and section 548 of the Bankruptcy Code) under the laws of

the United States, any state, territory, possession, or the District of Columbia. No other person or

entity or group of entities has offered to purchase the Acquired Assets for greater economic value

to the Debtors’ estates than Purchaser. Approval of the Motion, the APA, and the consummation

of the transactions contemplated thereby is in the best interests of the Debtors, their estates, their

creditors, and other parties in interest.


14

W. No Successor. The transactions contemplated under the APA do not amount to a

consolidation, merger, or de facto merger of Purchaser and the Debtors and/or the Debtors’ estates;

there is not substantial continuity between Purchaser and the Debtors; there is no continuity of

enterprise between the Debtors and Purchaser; Purchaser is not a mere continuation of the Debtors

or their estates; and Purchaser is not a successor or assignee of the Debtors or their estates for any

purpose, including, but not limited to, under any federal, state, or local statute or common law, or

revenue, pension, ERISA, tax, labor, employment, environmental, escheat, or unclaimed property

laws, or other law, rule, or regulation (including, without limitation, filing requirements under any

such laws, rules, or regulations), or under any products liability law or doctrine with respect to the

Debtors’ liability under such law, rule, or regulation or doctrine or common law, or under any

product warranty liability law or doctrine with respect to the Debtors’ liability under such law, rule

or regulation, or doctrine, and Purchaser and its affiliates shall have no liability or obligation under

the Workers Adjustment and Retraining Act (the “WARN Act”), 929 U.S.C. §§ 210 et seq. or the

Comprehensive Environmental Response Compensation and Liability Act and shall not be deemed

to be a “successor employer” for purposes of the Internal Revenue Code of 1986, Title VII of the

Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans

with Disability Act, the Family Medical Leave Act, the National Labor Relations Act, the Labor

Management Relations Act, the Older Workers Benefit Protection Act, the Equal Pay Act, the

Civil Rights Act of 1866 (42 U.S.C. 1981), the Employee Retirement Income Security Act, the

Multiemployer Pension Protection Act, the Pension Protection Act, and/or the Fair Labor

Standards Act. Except for the Assumed Liabilities or Permitted Encumbrances, the (i) transfer of

the Acquired Assets to Purchaser and (ii) assumption and assignment to Purchaser of the Assigned

Contracts do not and will not subject Purchaser to any liability whatsoever with respect to the


15

operation of the Debtors’ business before the Closing Date or by reason of such transfer under the

laws of the United States, any state, territory, or possession thereof, or the District of Columbia,

based on, in whole or in part, directly or indirectly, any theory of law or equity, including, without

limitation, any theory of equitable law, including, without limitation, any theory of antitrust or

successor or transferee liability.

X. Free and Clear. The conditions of section 363(f) of the Bankruptcy Code have

been satisfied in full and therefore, the Debtors may sell the Acquired Assets free and clear of any

Encumbrances in the property, other than as expressly contemplated by the APA. Purchaser would

not have entered into the APA and would not consummate the transactions contemplated thereby

if the Sale to Purchaser and the assumption of any Assumed Liabilities or Permitted Encumbrances

by Purchaser were not free and clear of all Encumbrances other than the Assumed Liabilities or

Permitted Encumbrances. The Debtors may sell the Acquired Assets free and clear of any

Encumbrances of any kind or nature whatsoever because, in each case, one or more of the standards

set forth in section 363(f)(1)-(5) of the Bankruptcy Code has been satisfied. Each entity with an

Encumbrance, lien, claim, or interest in the Acquired Assets to be transferred on the Closing Date:

(i) has, subject to the terms and conditions of this Sale Order, consented to the Sale or is deemed

to have consented to the Sale; (ii) could be compelled in a legal or equitable proceeding to accept

money satisfaction of such Encumbrance, lien, claim, or interest; (iii) are a holder of an

Encumbrance that is subject to a bona fide dispute; or (iv) otherwise falls within the provisions of

section 363(f) of the Bankruptcy Code. Those holders of Encumbrances who did not object to the

Motion are deemed, subject to the terms of this Sale Order, to have consented pursuant to section

363(f)(2) of the Bankruptcy Code. All holders of Encumbrances are adequately protected by

having their Encumbrances attach to the cash proceeds received by the Debtors that are ultimately


16

attributable to the property against or in which such Encumbrances are asserted, subject to the

terms of such Encumbrances with the same validity, force, and effect, and in the same order of

priority, which such Encumbrances now have against the Acquired Assets or their proceeds, if

any, subject to any rights, claims, and defenses the Debtors or their estates, as applicable, may

possess with respect thereto.

Y. Consumer Privacy. The Sale of the Acquired Assets is consistent with the

Debtors’ policy concerning the transfer of personally identifiable information and the Debtors

have, to the extent necessary, satisfied section 363(b)(1) of the Bankruptcy Code. Accordingly,

the appointment of a consumer privacy ombudsman pursuant to section 363(b)(1) or section 322

of the Bankruptcy Code is not required with respect to the relief requested in the Motion.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Motion is Granted. The Motion and the relief requested therein is GRANTED

and APPROVED as set forth herein.

2. Objections Overruled. Any objections to the entry of this Sale Order or the relief

granted herein and requested in the Motion that have not been withdrawn, waived, or settled as

announced to the Court at the Sale Hearing (the full record of which is incorporated herein by

reference), by stipulation filed with the Court, or by representation by the Debtors in a separate

pleading, and all reservations of rights included therein, if any, are hereby denied and overruled

on the merits with prejudice.

3. For the avoidance of doubt, and notwithstanding anything to the contrary in this

Sale Order or the APA, the rights of all counterparties to unexpired leases or executory contracts

under section 365 of the Bankruptcy Code are reserved as they relate to the assumption, assumption


17

and assignment, assignment, rejection, or cure amounts of any such agreements; provided that this

paragraph 3 shall not apply to the Transferred Lease.

4. Approval. The APA, and all other ancillary documents, and all of the terms and

conditions thereof, are hereby approved in all respects. Pursuant to sections 363(b) and 363(f) of

the Bankruptcy Code, the Debtors are hereby authorized to: (a) execute any additional instruments

or documents that may be reasonably necessary or appropriate to implement the APA, provided

that such additional documents do not materially change its terms adversely to the Debtors’ estates;

(b) consummate the Sale in accordance with the terms and conditions of the APA and the

instruments to the APA contemplated thereby; and (c) execute and deliver, perform under,

consummate, implement, and close fully the transactions contemplated by the APA, including

(i) the assumption and assignment to Purchaser (in accordance with the APA) of the Assigned

Contracts, together with all additional instruments and documents that may be reasonably

necessary or desirable to implement the APA and the Sale, (ii) the execution and delivery of all

appropriate agreements or other documents of merger, consolidation, sale, restructuring,

conversion, disposition, transfer, dissolution, or liquidation containing terms that are consistent

with the terms of the APA and that satisfy the requirements of applicable law, (iii) the execution

and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any

asset, property, right, liability, debt, or obligation on terms consistent with the terms of the APA,

and (iv) the filing of appropriate certificates or articles of incorporation, reincorporation, merger,

consolidation, conversion, or dissolution pursuant to applicable state Law. The automatic stay

imposed by section 362 of the Bankruptcy Code is modified solely to the extent necessary to

implement the preceding sentence and the other provisions of this Sale Order; provided, however,

that this Court shall retain exclusive jurisdiction over any and all disputes with respect thereto.


18

5. This Sale Order shall be binding in all respects upon the Debtors, their estates, all

creditors of, and holders of equity interests in, the Debtors, any holders of Encumbrances or other

interests in, against, or on all or any portion of the Acquired Assets (whether known or unknown),

Purchaser, and all successors and assigns of Purchaser, the Acquired Assets, and any trustees, if

any, subsequently appointed in the Debtors’ chapter 11 cases or upon a conversion to chapter 7

under the Bankruptcy Code of the Debtors’ chapter 11 cases. This Sale Order and the APA shall

inure to the benefit of the Debtors, their estates and creditors, Purchaser, and the respective

successors and assigns of each of the foregoing.

6. Joint Transaction. The Joint Transaction for the purchase of the combination of

certain Le Tote Assets and Lord & Taylor Assets by the Purchaser pursuant to the terms of the

APA complied with the Bid Procedures and is in the best interests of the Debtors, their estates, and

all other stakeholders.

7. Stalking Horse Protections Approval. The Break-Up Fee is approved in its

entirety. The Debtors are authorized to pay the Break-Up Fee on the Closing Date to the Stalking

Horse Bidder based on the terms and conditions of the Stalking Horse APA and the Bid

Procedures, and to the extent provided for therein, without need for further order of this Court with

the approval of the APA deemed to satisfy Sections 5.1(e) and 8.1(i) of the Stalking Horse APA.

The obligation to pay the Break-Up Fee to the Stalking Horse Bidder shall be entitled to

administrative expense claim status under sections 503(b)(1)(A) and 507(a)(2) of the Bankruptcy

Code.

8. Transfer of Acquired Assets Free and Clear of Encumbrances. Pursuant to

sections 105(a), 363(b), and 363(f) of the Bankruptcy Code, the Debtors are authorized to transfer

the Acquired Assets to Purchaser in accordance with the APA, and such transfer shall constitute a


19

legal, valid, binding, and effective transfer of such Acquired Assets and shall vest Purchaser with

title in and to the Acquired Assets and, other than the Assumed Liabilities or Permitted

Encumbrances, Purchaser shall take title to and possession of the Acquired Assets free and clear

of all Encumbrances and other interests of any kind or nature whatsoever, including, but not limited

to, successor or successor-in-interest liability and Claims in respect of the Excluded Liabilities,

with all such Encumbrances and other interests to attach to the cash proceeds received by the

Debtors that are ultimately attributable to the property against or in which such Encumbrances are

asserted, subject to the terms of such Encumbrances with the same validity, force, and effect, and

in the same order of priority, which such Encumbrances now have against the Acquired Assets or

their proceeds, if any, subject to any rights, claims, and defenses the Debtors or their estates, as

applicable, may possess with respect thereto.

9. Unless otherwise expressly included in the definition of “Assumed Liabilities” or

“Permitted Encumbrances” in the APA, Purchaser shall not be responsible for any Encumbrances,

including in respect of the following: (a) any labor or employment agreements; (b) any mortgages,

deeds of trust, and security interests; (c) any pension, welfare, compensation, or other employee

benefit plans, agreements, practices, and programs, including, without limitation, any pension plan

of the Debtors; (d) any other employee, worker’s compensation, occupational disease, or

unemployment or temporary disability related claim, including, without limitation, claims that

might otherwise arise under or pursuant to (i) the Employee Retirement Income Security Act, as

amended, (ii) the Fair Labor Standards Act, (iii) Title VII of the Civil Rights Act of 1964, (iv) the

Federal Rehabilitation Act of 1973, (v) the National Labor Relations Act, (vi) the WARN Act,

(vii) the Age Discrimination in Employment Act, as amended, (viii) the Americans with

Disabilities Act, (ix) the Family Medical Leave Act, (x) the Labor Management Relations Act,


20

(xi) the Multiemployer Pension Protection Act, (xii) the Pension Protection Act, (xiii) the

Consolidated Omnibus Budget Reconciliation Act of 1985, (xiv) the Comprehensive

Environmental Response Compensation and Liability Act, (xv) state discrimination laws,

(xvi) state unemployment compensation laws or any other similar state laws, or (xvii) any other

state or federal benefits or claims relating to any employment with the Debtors or any of its

respective predecessors; (e) any bulk sales or similar law; (f) any tax statutes or ordinances,

including, without limitation, the Internal Revenue Code of 1986, as amended, or any state or local

tax laws; (g) any escheat or unclaimed property laws; (h) any putative interests in trademarks part

of the Business Intellectual Properties (as defined in the APA) subject to a bona fide dispute; (i) to

the extent not included in the foregoing, any of the Excluded Liabilities under the APA; and (j) any

theories of successor or transferee liability.

10. All persons and entities that are in possession of some or all of the Acquired Assets

on the Closing Date are directed to surrender possession of such Acquired Assets to Purchaser in

accordance with the APA on the Closing Date or at such time thereafter as Purchaser may request.

On the Closing Date, each of the Debtors’ creditors is authorized to execute such documents and

take all other actions as may be reasonably necessary to release its Encumbrances or other interests

in the Acquired Assets, if any, as such Encumbrances may have been recorded or may otherwise

exist.

11. If any person or entity that has filed statements or other documents or agreements

evidencing Encumbrances on, against, or in, all or any portion of the Acquired Assets (other than

statements or documents with respect to the Assumed Liabilities or Permitted Encumbrances) shall

not have delivered to the Debtors prior to the Closing Date, in proper form for filing and executed

by the appropriate parties, termination statements, instruments of satisfaction, releases of liens and


21

easements, and any other documents necessary for the purpose of documenting the release of all

Encumbrances, liens, claims, interests, or other interests that the person or entity has or may assert

with respect to all or any portion of the Acquired Assets, the Debtors are hereby authorized, and

Purchaser is hereby authorized, to execute and file such statements, instruments, releases, and other

documents on behalf of such person or entity with respect to the Acquired Assets.

12. On the Closing Date, this Sale Order shall be construed and shall constitute for any

and all purposes a full and complete general assignment, conveyance, and transfer to Purchaser of

the Debtors’ interests in the Acquired Assets. This Sale Order is and shall be effective as a

determination that, on the Closing Date, all Encumbrances or other interest of any kind or nature

whatsoever existing as to the Acquired Assets prior to the Closing Date, other than the Assumed

Liabilities or Permitted Encumbrances, shall have been unconditionally released, discharged, and

terminated, and that the conveyances described herein have been effected. This Sale Order shall

be binding upon and govern the acts of all persons and entities, including, without limitation, all

filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of

deeds, registrars of deeds, administrative agencies, governmental departments, secretaries of state,

federal, state, and local officials, and all other persons and entities who may be required by

operation of law, the duties of their office, or contract, to accept, file, register, or otherwise record

or release any documents or instruments, or who may be required to report or insure any title or

state of title in or to any lease, and each of the foregoing persons and entities is hereby directed to

accept for filing any and all of the documents and instruments necessary and appropriate to

consummate the transactions contemplated by the APA. A certified copy of this Sale Order may

be filed with the appropriate clerk and/or recorded with the recorder to act to cancel any


22

Encumbrances and other interests of record except those assumed as Assumed Liabilities or

Permitted Encumbrances.

13. Prohibition of Actions Against Purchaser. Except for the Assumed Liabilities

or Permitted Encumbrances, or as otherwise expressly provided in this Sale Order or the APA,

Purchaser shall not have any liability or other obligation of the Debtors arising under or related to

any of the Acquired Assets or other Assumed Liabilities or Permitted Encumbrances expressly

identified in the APA, including, but not limited to, any liability for any Encumbrances, whether

known or unknown as of the Closing, now existing or hereafter arising, whether fixed or

contingent, with respect to the Debtors or any obligations of the Debtors, including, but not limited

to, liabilities on account of any taxes arising, accruing, or payable under, out of, in connection

with, or in any way relating to the operation of the Debtors’ business prior to the Closing Date.

14. Except with respect to the Assumed Liabilities or Permitted Encumbrances, or as

otherwise expressly provided for in this Sale Order or the APA, all persons and entities, including,

but not limited to, all debt holders, equity security holders, governmental, tax, and regulatory

authorities, lenders, trade creditors, litigation claimants, and other creditors, holding

Encumbrances or other interests of any kind or nature whatsoever against or in all or any portion

of the Acquired Assets (whether legal or equitable, secured or unsecured, matured or unmatured,

contingent or non-contingent, liquidated or unliquidated, senior or subordinate), arising under or

out of, in connection with, or in any way relating to the Debtors, the Acquired Assets, the operation

of the Debtors’ businesses prior to the Closing Date, or the transfer of the Acquired Assets to

Purchaser in accordance with the APA, are hereby forever barred, estopped, and permanently

enjoined from asserting against Purchaser, its successors or assigns, its property or the Acquired

Assets, such persons’ or entities’ Encumbrances in and to the Acquired Assets, including, without


23

limitation, the following actions: (a) commencing or continuing in any manner any action or other

proceeding against Purchaser, its successors, assets, or properties; (b) enforcing, attaching,

collecting, or recovering, in any manner, any judgment, award, decree, or order against Purchaser,

its successors, or their assets or properties; (c) creating, perfecting, or enforcing any Encumbrance,

lien, claim, or interest against Purchaser, its successors, their assets, or their properties;

(d) asserting any setoff, right of subrogation, or recoupment of any kind against any obligation due

Purchaser or its successors; (e) commencing or continuing any action, in any manner or place, that

does not comply or is inconsistent with the provisions of this Sale Order or other orders of the

Court, or the agreements or actions contemplated or taken in respect thereof; or (f) revoking,

terminating, or failing or refusing to transfer or renew any license, permit, or authorization to

operate any of the Acquired Assets or conduct any of the businesses operated with the Acquired

Assets.

15. To the greatest extent available under applicable law, Purchaser and, with respect

to the Wind-Down License, Seller, shall be authorized, as of the Closing Date, to operate under

any license, permit, registration, and governmental authorization or approval of the Debtors with

respect to the Acquired Assets to the extent transferred in the APA, and all such licenses, permits,

registrations, and governmental authorizations and approvals are deemed to have been transferred

to Purchaser as of the Closing Date.

16. All persons and entities are hereby forever prohibited and enjoined from taking any

action that would adversely affect or interfere with the ability of the Debtors to sell and transfer

the Acquired Assets to Purchaser in accordance with the terms of the APA and this Sale Order.

17. Purchaser has given substantial consideration under the APA for the benefit of the

Debtors, their estates, and their creditors. The consideration given by Purchaser shall constitute


24

valid and valuable consideration for the releases of any potential Encumbrances pursuant to this

Sale Order, which releases shall be deemed to have been given in favor of Purchaser by all holders

of Encumbrances or liens against or interests in, or claims against, any of the Debtors or any of the

Acquired Assets, other than with respect to the Assumed Liabilities or Permitted Encumbrances.

The consideration provided by Purchaser for the Acquired Assets under the APA is fair and

reasonable and may not be avoided under section 363(n) of the Bankruptcy Code.

18. Notwithstanding the foregoing, nothing herein shall prevent (a) the Debtors from

pursuing an action against Purchaser arising under the APA or the related documents, or (b) any

administrative agencies, governmental, tax, and regulatory authorities, secretaries of state, federal,

state, and local officials from properly exercising their police and regulatory powers.

19. Assumption and Assignment of Contracts. The Debtors are hereby authorized,

in accordance with sections 105(a) and 365 of the Bankruptcy Code, to (a) assume and assign to

Purchaser, in accordance with the APA, effective upon the Closing Date, the Transferred Lease

free and clear of all Encumbrances and other interests of any kind or nature whatsoever (other than

the Assumed Liabilities or Permitted Encumbrances) and (b) execute and deliver to Purchaser such

documents or other instruments as Purchaser deems may be reasonably necessary to assign and

transfer the Transferred Lease and the Assumed Liabilities or Permitted Encumbrances to

Purchaser in accordance with the APA.

20. With respect to the Transferred Lease: (a) the Transferred Lease is an unexpired

lease under section 365 of the Bankruptcy Code; (b) the Debtors may assume each of the

Transferred Lease in accordance with section 365 of the Bankruptcy Code; (c) the Debtors may

assign the Transferred Lease in accordance with sections 363 and 365 of the Bankruptcy Code,

and any provisions in the Transferred Lease that prohibit or condition the assignment of the


25

Transferred Lease or allow the counterparty to the Transferred Lease to terminate, recapture,

impose any penalty, condition, renewal, or extension, or modify any term or condition upon the

assignment of the Transferred Lease, constitute unenforceable anti-assignment provisions which

are void and of no force and effect; (d) all other requirements and conditions under sections 363

and 365 of the Bankruptcy Code for the assumption by the Debtors and assignment to Purchaser

of the Transferred Lease, in accordance with the APA, have been satisfied; (e) the Transferred

Lease shall be transferred and assigned to, and following the Closing Date, remain in full force

and effect for the benefit of Purchaser in accordance with the APA, notwithstanding any provision

in the Transferred Lease (including those of the type described in sections 365(b)(2) and (f) of the

Bankruptcy Code) that prohibits, restricts, or conditions such assignment or transfer and, pursuant

to section 365(k) of the Bankruptcy Code, the Debtors shall be relieved from any further liability

with respect to the Transferred Lease after such assignment to and assumption by Purchaser in

accordance with the APA; and (f) upon the Closing Date, in accordance with sections 363 and 365

of the Bankruptcy Code, Purchaser shall be fully and irrevocably vested in all right, title, and

interest of the Transferred Lease.

21. All defaults or other obligations of the Debtors under the Transferred Lease arising

or accruing prior to the Closing (without giving effect to any acceleration clauses or any default

provisions of the kind specified in section 365(b)(2) of the Bankruptcy Code) shall be cured on the

Closing Date or as soon thereafter as reasonably practicable by payment of the Transferred Lease

Cure Amount by the Debtors or the Purchaser, as applicable. To the extent that the counterparty

to the Transferred Lease did not object to the Transferred Lease Cure Amount by the Assumption

Objection Deadline, such counterparty is deemed to have consented to the Transferred Lease Cure


26

Amount and the assumption and assignment of the Transferred Lease to Purchaser in accordance

with the APA.

22. Unless otherwise represented by the Debtors in a separate pleading, in open court

at the Sale Hearing, agreement between the Debtors, Purchaser, and the counterparty to the

Transferred Lease, or pursuant to a contract or lease amendment entered into by the Debtors,

Purchaser, and the counterparty to the Transferred Lease (any such amendment being deemed

approved by this Sale Order), the Assumption Notices reflects the sole amounts necessary under

section 365(b) of the Bankruptcy Code to cure all monetary defaults under the Transferred Lease,

and no other amounts are or shall be due in connection with the assumption by the Debtors and the

assignment to Purchaser of the Transferred Lease in accordance with the APA.

23. Upon the Debtors’ assignment of the Transferred Lease to Purchaser under the

provisions of this Sale Order and any additional orders of this Court and payment of the

Transferred Lease Cure Amount by the Debtors or Purchaser, as applicable, no default shall exist

under the Transferred Lease, and no counterparty to the Transferred Lease shall be permitted (a) to

declare a default by Purchaser under the Transferred Lease or (b) otherwise take action against

Purchaser as a result of Debtors’ financial condition, bankruptcy, or failure to perform any of their

obligations under the Transferred Lease. Each non-Debtor party to the Transferred Lease hereby

is also forever barred, estopped, and permanently enjoined from (i) asserting against the Debtors

or Purchaser, or the property of any of them, any default or claim arising out of any indemnity

obligation or warranties for acts or occurrences arising prior to or existing as of the Closing,

including those constituting Excluded Liabilities or, against Purchaser, any counterclaim, defense,

setoff, recoupment, or any other Claim asserted or assertable against the Debtors and (ii) imposing

or charging against Purchaser any rent accelerations, assignment fees, increases, or any other fees


27

as a result of the Debtors’ assumption and assignment to Purchaser of the Transferred Lease in

accordance with the APA. The validity of such assumption and assignment of the Transferred

Lease shall not be affected by any dispute between the Debtors and the non-Debtors counterparty

to the Transferred Lease relating to the Transferred Lease Cure Amount.

24. Except as provided in the APA or this Sale Order, after the Closing, the Debtors

and their estates shall have no further liabilities or obligations with respect to any Assumed

Liabilities or Permitted Encumbrances, and all holders of such Encumbrance, lien, claim, and

interest are forever barred and estopped from asserting such Claims against the Debtors, their

successors or assigns, their property, or their assets or estates. The failure of the Debtors or

Purchaser to enforce at any time one or more terms or conditions of the Transferred Lease shall

not be a waiver of such terms or conditions, or of the Debtors’ and Purchaser’s rights to enforce

every term and condition of the Transferred Lease.

25. Designation Rights. Subject to the terms of the APA and this Sale Order, including

paragraph 3, during the Designation Rights Period, the Purchaser may (a) assume and assign

Contracts pursuant to Section 1.5 of the APA with the consent of the applicable Contract

counterparties or (b) direct the Debtors to file a motion with the Court to assume and assign

Contracts and to the Purchaser in each case pursuant to Section 365 of the Bankruptcy Code. For

the avoidance of doubt, the Purchaser’s Designation Rights do not apply to any unexpired leases

of real property with respect to the Lord & Taylor stores.

26. For any Designated Contract, which the Purchaser directs the Debtors to assume

and assign to the Purchaser pursuant to clause (a) of paragraph 25 of this Sale Order, the Debtors

shall file a notice on the docket (the “Assumption Notice”), and in the event the applicable

counterparty requests an order approving such assumption or assignment and assumption, an order,


28

identifying with respect to such Designated Contract, the applicable counterparty and Contract,

and the proposed assignee. Upon the filing of an Assumption Notice, any Contract identified on

the Assumption Notice, subject to a written agreement to assume such contract or lease (each,

an “Assumption Agreement”) executed by and between the Purchaser and the applicable

counterparty, shall be deemed assumed by the Debtors and assigned to the Purchaser pursuant to

section 365 of the Bankruptcy Code in accordance with and effective as provided in the

Assumption Agreement between the Purchaser and the applicable counterparty without further

order of this Court, unless otherwise requested by the applicable counterparty; provided that failure

to file the Assumption Notice related to the Assumption Agreement shall have no effect on the

enforceability or effectiveness of such Assumption Agreement. For the avoidance of doubt, the

Purchaser is authorized to enter into Assumption Agreements with counterparties to Designated

Contracts without the need of obtaining consent from the Debtors. To the extent liabilities related

to Cure Costs are assigned to the Purchaser pursuant to the APA, the Debtors shall not be liable

for any Cure Costs related to Designated Contracts.

27. Notwithstanding anything to the contrary included in Section 1.5 of the APA and

subject to paragraph 3 of this Sale Order, the Purchaser may, but is not required, to direct the

Debtors to file one or more motions to assume and assign certain Designated Contracts that have

not previously been assumed and assigned pursuant to clause (a) or (b) of paragraph 25 above or

otherwise rejected (each an “Assumption Motion”). If filed, each Assumption Motion must

comply with the Local Bankruptcy Rules and the Bankruptcy Rules and shall include (a) the

proposed Cure Costs, if any, associated with such Designated Contract as designated by the

Purchaser, (b) a brief description of the information being supplied by the Purchaser to the

applicable counterparty to show adequate assurance of future performance, and (c) the deadline to


29

object to the related Assumption Motion (the “Objection Deadline”), which deadline shall be no

less than fourteen (14) calendar days from service of such notice. If no objection is filed by the

Objection Deadline, the Debtors may file a certificate of no objection and the Court may enter an

order approving the assumption and assignment of a Designated Contract without a hearing.

28. Subject to the procedures of this Sale Order, including paragraph 3, and the APA,

the Debtors are hereby authorized in accordance with section 365 of the Bankruptcy Code to

assume and assign the Assigned Contracts to the Purchaser free and clear of all Liens, and to

execute and deliver to the Purchaser such documents or other instruments as may be necessary to

assign and transfer the Assigned Contracts to the Purchaser as provided in the APA; provided that

Designated Contracts shall only be transferred free and clear upon assumption or assumption and

assignment of such Designated Contracts. The Purchaser shall be fully and irrevocably vested

with all right, title, and interest of the Debtors under the Assigned Contracts that are assumed and

assigned in accordance with the procedures set forth in the APA or this Sale Order, and, to the

extent permitted under section 365(k) of the Bankruptcy Code, the Debtors shall be relieved from

further liability with respect to Assigned Contracts.

29. Upon the Debtors’ assignment of the Assigned Contracts, to the Purchaser in

accordance section 365 of the Bankruptcy Code, no default shall exist under any Assigned

Contracts unless otherwise stipulated in the Assumption Agreement or in any order assuming or

assuming and assigning a Designated Contract, and no counterparty to any Assigned Contracts

shall be permitted to declare a default by any Debtor or the Purchaser, or otherwise take action

against the Purchaser, as a result of any of the Debtors’ financial condition, bankruptcy, or the

Debtors’ failure to perform any of its obligations under the relevant Assigned Contracts. Any

provision in an Assigned Contracts that prohibits or conditions the assignment or sublease of such


30

Assigned Contracts or allows the counterparty thereto to terminate, recapture, impose any penalty,

condition on renewal or extension, or modify any term or condition upon such assignment or

sublease, constitutes an unenforceable anti-assignment provision under section 365 of the

Bankruptcy Code that is void and of no force and effect, but only in connection with the

assumptions and assignments authorized by this Sale Order. The failure of the Debtors or the

Purchaser to enforce at any time one or more terms or conditions of any Assigned Contract shall

not be a waiver of such terms or conditions, or of the Debtors’ or the Purchaser’s rights to enforce

every term and condition of the Assigned Contract.

30. Notwithstanding anything herein to the contrary, the Purchaser’s and the Debtors’

rights are reserved to seek authority from the Court to shorten the notice and objection periods

related to motions to assume or reject Designated Contracts in accordance with the Local

Bankruptcy Rules and the Bankruptcy Rules and to schedule a hearing with the Court to effectuate

the assumption and assignment of a Designated Contract pursuant to such authority; provided that

in the event exigent circumstances exist, the rights of any party to seek relief on shortened notice

on an emergency basis are reserved.

31. To the extent applicable, the Debtors shall file a schedule of the final Assigned

Contracts reasonably promptly after the Closing Date.

32. Notwithstanding anything to the contrary in this Sale Order, the APA, or any related

agreements, documents, or other instruments, or otherwise, all cash proceeds of the Sale, less

(a) the amount then owing in respect of the Carve Out, as defined in the Final Order (I) Authorizing

Use of Cash Collateral and Affording Adequate Protection; (II) Modifying the Automatic Stay;

and (III) Granting Related Relief [Docket No. 268] (the “Cash Collateral Order”) and

(b) the Break-Up Fee, shall be paid on the Closing Date to the Senior Agents for application against


31

and the indefeasible payment of outstanding ABL Obligations and Term Loan Obligations owing

by the Debtors to the Senior Agents and the other Senior Secured Parties (as defined in the Cash

Collateral Order), in accordance with the Cash Collateral Order and the Senior Lender Intercreditor

Agreement, until such time as all such obligations have been fully repaid and satisfied in full in

accordance with the terms and conditions of the Cash Collateral Order.

33. Good Faith. The transactions contemplated by the APA are undertaken by

Purchaser without collusion and in good faith, as that term is used in section 363(m) of the

Bankruptcy Code and, accordingly, the reversal or modification on appeal of the authorization

provided herein to consummate the Sale shall not affect the validity of the Sale (including the

assumption and assignment of the Assigned Contracts) with Purchaser, unless such authorization

is duly stayed pending such appeal. Purchaser is a good faith purchaser of the Acquired Assets,

and is entitled to all of the benefits and protections afforded by section 363(m) of the Bankruptcy

Code.

34. Additional Provisions re Cigna. Notwithstanding anything in the APA, this Sale

Order, or any notice related thereto to the contrary, the Employee Benefits Agreements, as defined

in the Objection of Cigna to Notice of Potential Assumption and Assignment of Unexpired Leases

and Executory Contracts Pursuant to the Le Tote Sale [Docket No. 391] and the Protective

Objection of Cigna to Notice of Potential Assumption and Assignment of Unexpired Leases and

Executory Contracts Pursuant to the Lord & Taylor Sale [Docket No. 435] (jointly, the “Cigna

Objections”) shall not be assumed and assigned pursuant to this Sale Order. If the Debtors and

Purchaser wish to have any or all of the Employee Benefits Agreements assumed and assigned as

part of the Sale, any assumption, assignment, and cure issues related to the Employee Benefits

Agreements shall be resolved by agreement between Cigna (as defined in the Cigna Objections),


32

the Debtors, and the Purchaser or, if no agreement can be reached, by further order of

the Court upon reasonable notice to Cigna.

35. Additional Provisions re SAP. No provision of this Sale Order, the Motion, or

the APA shall authorize or allow: (a) the assumption and/or assignment of any contract between

any Debtor and SAP America, Inc. (“SAP”); (b) the sale or transfer of any rights or access to any

cloud-based software services (the “Software Services”) provided by SAP to the Purchaser; or

(c) the use, or the shared use, of the Software Services provided by SAP by or for the benefit of

the Purchaser or any other third party.

36. Additional Provisions re Capital One. Notwithstanding any other provision to

the contrary, none of this Sale Order, the APA or any related documents shall transfer any right or

interest of Capital One Bank, National Association or Capital One Bank (USA), National

Association (collectively, “Capital One”) in the Cardholder Data (as that term is defined in that

certain Co-Branded and Private Label Credit Card Program Agreement, dated as of

October 22, 2014, as amended, by and among, inter alia Lord & Taylor LLC and Capital One

(the “Program Agreement”)), nor impair any right of Capital One in law or equity from taking any

action to protect its interests in such Cardholder Data. The Debtors and Capital One reserve all of

their rights, defenses, claims, and causes of action with respect to the Program Agreement and the

Cardholder Data.

37. Failure to Specify Provisions. The failure specifically to include any particular

provisions of the APA in this Sale Order shall not diminish or impair the effectiveness of such

provisions, it being the intent of the Court that the APA be authorized and approved in its entirety;

provided, however, that this Sale Order shall govern if there is any inconsistency between the APA

(including all ancillary documents executed in connection therewith) and this Sale Order.


33

Likewise, all of the provisions of this Sale Order are nonseverable and mutually dependent. To

the extent that this Sale Order is inconsistent with any prior order or pleading with respect to the

Motion in these chapter 11 cases, the terms of this Sale Order shall control. Notwithstanding the

relief granted in this Sale Order, to the extent of any conflict between the terms of this Sale Order

and the Cash Collateral Order, the terms of the Cash Collateral Order shall control.

38. Non-Material Modifications. The APA and any related agreements, documents,

or other instruments may be modified, amended, or supplemented by the parties thereto, in a

writing signed by such parties, and in accordance with the terms thereof, without further order of

the Court, provided that any such modification, amendment or supplement does not have a material

adverse effect on the Debtors’ estates.

39. Amounts Payable by Debtors. Any amounts payable by any Debtor under the

agreements or any of the documents delivered by any Debtor in connection with the APA shall be

paid in the manner provided in the APA and the Bid Procedures Order, without further order of

this Court, shall be allowed administrative claims in an amount equal to such payments in

accordance with sections 503(b) and 507(a)(2) of the Bankruptcy Code, shall have the other

protections provided in the Bid Procedures Order, and shall not be discharged, modified, or

otherwise affected by any reorganization plan for the Debtor, except by an express agreement with

Purchaser, its successors, or assigns.

40. Subsequent Plan Provisions. Nothing contained in any chapter 11 plan confirmed

in the Debtors’ cases or any order confirming any such plan or in any other order in these

chapter 11 cases (including any order entered after any conversion of any of these cases to a case

under chapter 7 of the Bankruptcy Code) or any related proceeding subsequent to entry of this Sale

Order shall alter, conflict with, or derogate from, the provisions of the APA or this Sale Order.


34

41. No Stay of Order. Notwithstanding the provisions of Bankruptcy Rules 6004(h)

and 6006(d), and pursuant to Bankruptcy Rules 7062 and 9014, this Sale Order shall not be stayed

for fourteen (14) days after the entry hereof, but shall be effective and enforceable immediately

upon issuance hereof. Time is of the essence in closing the transactions referenced herein, and the

Debtors and Purchaser intend to close the Sale as soon as practicable. Any party objecting to this

Sale Order must exercise due diligence in filing an appeal and pursuing a stay, or risk its appeal

being foreclosed as moot.

42. Calculation of Time. All time periods set forth in this Sale Order shall be

calculated in accordance with Bankruptcy Rule 9006.

43. Further Assurances. From time to time, as and when requested by any party, each

party shall execute and deliver, or cause to be executed and delivered, all such documents and

instruments and shall take, or cause to be taken, all such further or other actions as such other party

may reasonably deem necessary or desirable to consummate the transactions contemplated by the

APA, including such actions as may be necessary to vest, perfect, or confirm, of record or

otherwise, in Purchaser its right, title, and interest in and to the Acquired Assets.

44. Retention of Jurisdiction. This Court retains jurisdiction, pursuant to its statutory

powers under 28 U.S.C. § 157(b)(2), to, among other things, interpret, implement, and enforce the

terms and provisions of this Sale Order and the APA, all amendments thereto, and any waivers

and consents thereunder, and each of the agreements executed in connection therewith to which

any Debtor is a party or which has been assigned by the Debtors to Purchaser in accordance with

the APA, and to adjudicate, if necessary, any and all disputes concerning or relating in any way to

the Sale, including, but not limited to, retaining jurisdiction to (a) interpret, implement, and enforce

the provisions of this Sale Order and the APA, (b) adjudicate, if necessary, any and all disputes


35

concerning or relating in any way to the Sale, (c) protect Purchaser against any Encumbrances or

other interests in the Debtors or the Acquired Assets of any kind or nature whatsoever, attaching

to the proceeds of the Sale, and (d) enter any orders under section 363 and 365 of the Bankruptcy

Code with respect to the Assigned Contracts.

Dated: __________, 2020

Richmond, Virginia The Honorable Keith L. Phillips

United States Bankruptcy Judge

Oct 21 2020/s/ Keith L Phillips

Entered On Docket: Oct 22 2020


WE ASK FOR THIS:

/s/ Jeremy S. WilliamsMichael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

Brian H. Richardson (VA 92477)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

- and -

Steven N. Serajeddini, P.C. (admitted pro hac vice)



601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile: (212) 446-4900

- and -






Chicago, Illinois 60654Telephone: (212) 446-4800

Facsimile: (212) 446-4900

Co-Counsel to the Debtors and Debtors in Possession

CERTIFICATION OF ENDORSEMENT

UNDER LOCAL BANKRUPTCY RULE 9022-1(C)

Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing proposed order has been

endorsed by or served upon all necessary parties.

/s/ Jeremy S. Williams


Exhibit A

Asset Purchase Agreement


Confidential

Execution Version

______________________________________________________________________________

ASSET PURCHASE AGREEMENT

DATED AS OF OCTOBER 16, 2020

BY AND AMONG

SAADIA GROUP LLC, AS PURCHASER,

AND

LE TOTE, INC. AND LORD & TAYLOR LLC, AS THE COMPANY,

AND

THE OTHER SELLERS NAMED HEREIN

______________________________________________________________________________


i

TABLE OF CONTENTS

Page

ARTICLE I PURCHASE AND SALE OF THE ACQUIRED ASSETS;

ASSUMPTION OF ASSUMED LIABILITIES ..............................................................1

1.1 Purchase and Sale of the Acquired Assets ...............................................................1

1.2 Excluded Assets .......................................................................................................3

1.3 Assumption of Certain Liabilities ............................................................................4

1.4 Excluded Liabilities .................................................................................................5

ARTICLE II CONSIDERATION; CLOSING ...........................................................................7

2.1 Consideration. ..........................................................................................................7

2.2 Deposit .....................................................................................................................7

2.3 Closing .....................................................................................................................8

2.4 Closing Deliveries by Sellers ...................................................................................8

2.5 Closing Deliveries by Purchaser ..............................................................................9

2.6 [Intentionally Omitted] ............................................................................................9

2.7 Withholding .............................................................................................................9

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS .........................9

3.1 Organization and Qualification ................................................................................9

3.2 Authorization of Agreement ..................................................................................10

3.3 Conflicts; Consents ................................................................................................10

3.4 [Intentionally Omitted] ..........................................................................................11

3.5 Contracts ................................................................................................................11

3.6 Litigation ................................................................................................................12

3.7 Permits; Compliance with Laws ............................................................................12

3.8 Environmental Matters...........................................................................................12

3.9 Intellectual Property ...............................................................................................13

3.10 Data Security ..........................................................................................................13

3.11 Seller Plans.............................................................................................................14

3.12 Employees ..............................................................................................................14

3.13 Tax Matters. ...........................................................................................................15

3.14 Brokers ...................................................................................................................15

3.15 Compliance with Applicable Sanctions and Embargo Laws .................................15

3.16 Compliance with Applicable Anti-Bribery and Anti-Corruption Law ..................16

3.17 Disclaimer of Other Representations and Warranties ............................................16

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER .................16

4.1 Organization and Qualification ..............................................................................16

4.2 Authorization of Agreement ..................................................................................17

4.3 Conflicts; Consents ................................................................................................17

4.4 Financing................................................................................................................17

4.5 Brokers ...................................................................................................................18


4.6 No Litigation ..........................................................................................................18

4.7 Certain Arrangements ............................................................................................18

4.8 No Additional Representations or Warranties .......................................................18

4.9 No Outside Reliance ..............................................................................................18

ARTICLE V BANKRUPTCY COURT MATTERS ................................................................19

5.1 Bankruptcy Actions ...............................................................................................19


5.3 Bankruptcy Court Filings .......................................................................................20

5.4 Approval ................................................................................................................21

ARTICLE VI COVENANTS AND AGREEMENTS ...............................................................21

6.1 Conduct of Business of Sellers ..............................................................................21

6.2 Access to Information ............................................................................................23

6.3 Regulatory Approvals ............................................................................................24

6.4 Reasonable Efforts; Cooperation ...........................................................................25

6.5 Further Assurances.................................................................................................25

6.6 Insurance Matters ...................................................................................................25

6.7 Receipt of Misdirected Assets ...............................................................................26


6.9 Personally Identifiable Information. ......................................................................26

6.10 Acknowledgment by Purchaser .............................................................................26

ARTICLE VII CONDITIONS TO CLOSING .........................................................................28

7.1 Conditions Precedent to the Obligations of Purchaser and Sellers ........................28

7.2 Conditions Precedent to the Obligations of Purchaser ..........................................29

7.3 Conditions Precedent to the Obligations of the Company .....................................29

7.4 Waiver of Conditions .............................................................................................30

ARTICLE VIII TERMINATION ..............................................................................................30

8.1 Termination of Agreement .....................................................................................30

8.2 Effect of Termination .............................................................................................31

ARTICLE IX TAXES..................................................................................................................32

9.1 Transfer Taxes .......................................................................................................32

9.2 Allocation of Purchase Price ..................................................................................32

9.3 Cooperation ............................................................................................................32

9.4 Preparation of Tax Returns and Payment of Taxes ...............................................32


ARTICLE X MISCELLANEOUS .............................................................................................33

10.1 Non-Survival of Representations and Warranties and Certain Covenants; Certain Waivers .....................................................................................................33

10.2 Expenses ................................................................................................................34

10.3 Notices ...................................................................................................................34


10.4 Binding Effect; Assignment ...................................................................................36

10.5 Amendment and Waiver ........................................................................................36

10.6 Third Party Beneficiaries .......................................................................................36

10.7 Non-Recourse ........................................................................................................36

10.8 Severability ............................................................................................................37

10.9 Construction ...........................................................................................................37

10.10 Schedules ...............................................................................................................37

10.11 Complete Agreement .............................................................................................38

10.12 Specific Performance .............................................................................................38

10.13 Jurisdiction and Exclusive Venue ..........................................................................39

10.14 Governing Law; Waiver of Jury Trial ...................................................................39

10.15 No Right of Set-Off ...............................................................................................40

10.16 Counterparts and PDF ............................................................................................40

10.17 Publicity .................................................................................................................40

10.18 Bulk Sales Laws .....................................................................................................41

10.19 Fiduciary Obligations.............................................................................................41

ARTICLE XI ADDITIONAL DEFINITIONS AND INTERPRETIVE MATTERS ...........41

11.1 Certain Definitions .................................................................................................41

11.2 Index of Defined Terms .........................................................................................48

11.3 Rules of Interpretation ...........................................................................................49

INDEX OF EXHIBITS

EXHIBIT A FORM OF BILL OF SALE EXHIBIT B FORM OF IP ASSIGNMENT AGREEMENTS EXHIBIT C FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT D FORM OF ESCROW AGREEMENT EXHIBIT E BID PROCEDURES ORDER


1

ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of October 16, 2020, by and among Saadia Group LLC, a New York domestic limited liability company (“Purchaser”), Lord & Taylor LLC, a Delaware limited liability company (the “Company”), Le Tote, Inc. a Delaware corporation, and the Subsidiaries and/or other affiliated companies of the Company that are indicated on the signature pages attached hereto (together with the Company, each a “Seller” and collectively “Sellers”). Purchaser and Sellers are referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used in herein shall have the meanings set forth herein or in Article XI.

WHEREAS, the Company and the other Sellers are engaged in the business of operating the E-Commerce Platforms under the “Lord & Taylor” and “Le Tote” brands and related private label brands (as conducted by Sellers, the “Business”);

WHEREAS, the Company and certain of its affiliates commenced voluntary petitions for relief under chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”), in the United States Bankruptcy Court for the Eastern District of Virginia (Richmond Division) (the “Bankruptcy Court”) on August 2, 2020, pending in the United States Bankruptcy Court for the Eastern District of Virginia, which chapter 11 cases are jointly administered for procedural purposes (collectively, the “Bankruptcy Case”) under case number 20-33332 (KLP); and

WHEREAS, Purchaser desires to purchase the Acquired Assets and assume the Assumed Liabilities from Sellers, and Sellers desire to sell, convey, assign, and transfer to Purchaser the Acquired Assets together with the Assumed Liabilities, in a sale authorized by the Bankruptcy Court pursuant to, inter alia, sections 105, 363 and 365 of the Bankruptcy Code, in accordance with the other applicable provisions of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure and the local rules for the Bankruptcy Court (the “Bankruptcy Rules”), all on the terms and subject to the conditions set forth in this Agreement and subject to entry of the Sale Order.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants, and agreements set forth herein, and intending to be legally bound hereby, Purchaser and Sellers hereby agree as follows.

ARTICLE I

PURCHASE AND SALE OF THE ACQUIRED ASSETS;

ASSUMPTION OF ASSUMED LIABILITIES

1.1 Purchase and Sale of the Acquired Assets. Pursuant to sections 105, 363 and 365 of the Bankruptcy Code, on the terms and subject to the conditions set forth herein and in the Sale Order, at the Closing, Sellers shall sell, transfer, assign, convey, and deliver to Purchaser, and Purchaser shall purchase, acquire, and accept from Sellers, all of Sellers’ right, title and interest in and to the following assets, properties and rights of Sellers, free and clear of all


2

Encumbrances other than Permitted Encumbrances (the “Acquired Assets”) but excluding in all cases the Excluded Assets:

all goodwill, payment intangibles and general intangible assets and rights of Sellers to the extent exclusively related to the Business Intellectual Property, the Customer Information, the Social Media Accounts and the Acquired Claims;

all Business Intellectual Property, including, but not limited to, all intellectual property listed on Schedule 1.1(b) hereto, and also including all rights to collect royalties, fees, income, payments and other proceeds in connection therewith with respect to the period from and after the Closing;

all Social Media Accounts that contain or use any Business Intellectual Property;

all causes of Action, lawsuits, judgments, claims and demands of any nature, whether arising by way of counterclaim or otherwise, existing on the Closing Date and in each case to the extent exclusively related to the Business Intellectual Property, the other the Acquired Assets or the Assumed Liabilities (collectively, the “Assigned Claims”), other than claim(s) set forth on Section 1.1(d) of the Disclosure Schedules (the “Excluded Claim”);

copies of all Documents to the extent exclusively related to the Business Intellectual Property, Social Media Accounts, Assigned Claims (other than the Excluded Claim) and Customer Information; provided that Sellers may retain copies of any Documents transferred pursuant to this Section 1.1(e);

the E-Commerce Platform and those Systems on which the E-Commerce Platform is resident and runs on;

all Lord & Taylor and Le Tote customer data, customer lists, and information related to customer purchases through the E-Commerce Platform and Company branded Lord & Taylor stores, including, but not limited to customer e-mail addresses and/or physical addresses and related contact information (the “Customer Information”) and exclusively related to the Business including all past historical Customer Information of Lord &Taylor to the extent in the possession of Sellers (excluding from the foregoing any credit card numbers or related customer payment source, social security numbers, or other personally identifiable information the transfer of which would contravene applicable privacy Law). The Parties agree to cooperate in good faith to secure for Purchaser’s use the Capital One customer data related to the Business;

[Omitted];

all Equipment owned by Sellers as of the Closing that is exclusively used or held for use in the business of operating a subscription fashion rental service via the E-Commerce Platform for the “Le Tote” brand (the “Acquired Equipment”), including but not limited to any ERP systems, Equipment, hardware or software that constitute Acquired Equipment owned by Sellers which is independent and not owned by, leased from or connected with Affiliates of Hudson’s Bay Company;


3

all inventory owned by the Sellers as of the Closing that is exclusively used or held for use in the operation of a subscription fashion rental service via the E-Commerce Platform for the “Le Tote” brand, other than Consignment Goods and inventory that has been billed and is being held for customers’ accounts (such excluded inventory, the “Excluded Inventory” and such acquired inventory, the “Acquired Inventory”); and

the Contracts that the Sellers are party to as of the Closing so designated by Purchaser as set forth herein (i) that are exclusively related to the operation of the E-Commerce Platform, (ii) that are exclusively related to leases for the Equipment located in the Transferred Facility (the “Leased Equipment”) or (iii) that is a lease for the Transferred Facility (the “Transferred Lease”), in each case of the foregoing clauses (i), (ii) and (iii), to the extent assignable under applicable Law (collectively, including Contracts for the Acquired Equipment, the “Assigned Contracts”).

1.2 Excluded Assets. Notwithstanding anything to the contrary in this Agreement, in no event shall Sellers be deemed to sell, transfer, assign, or convey, and Sellers shall retain all right, title and interest to, in and under all assets, properties, interests and rights of such Sellers used in or related to the Excluded Business or not expressly included in the Acquired Assets (collectively, the “Excluded Assets”), including:

all accounts receivable of Sellers existing on the Closing, except for any and all accounts receivable of the Sellers that first become due and owing on the date of the Closing;

all real estate and all interests in real estate, including, but not limited to, any leasehold interests (other than the Transferred Lease);

all tangible assets (other than Acquired Equipment, the Leased Equipment and the Acquired Inventory);

all inventory (other than the Acquired Inventory);

all Excluded Inventory;

all Cash and Cash Equivalents, all bank accounts, and all deposits (including maintenance deposits, customer deposits, and security deposits for rent, electricity, telephone or otherwise) or prepaid or deferred charges and expenses, including all lease and rental payments, that have been prepaid by any Seller, and any retainers or similar amounts paid to Advisors or other professional service providers;

all Contracts (other than the Assigned Contracts) (the “Excluded Contracts”);

all goodwill, payment intangibles and general intangible assets and rights of Sellers to the extent not exclusively related to the Acquired Assets;

all Intellectual Property that is not Business Intellectual Property;


4

(i) all preference or avoidance claims or actions arising under the Bankruptcy Code or applicable Law, (ii) all Actions, lawsuits, judgments, claims and demands of any nature, whether arising by way of counterclaim or otherwise, other than the Assigned Claims, and (iii) the Excluded Claim;

all Documents (i) to the extent related to any of the Excluded Assets, Excluded Liabilities or the Excluded Business (including information stored on the computer systems, data networks or servers of any Seller); (ii) that are Sellers’ financial accounting Documents, or (iii) that are minute books, organizational documents, stock registers and such other books and records of any Seller as pertaining to ownership, organization or existence of such Seller, Tax Returns (and any related work papers) and any other Tax information or records, corporate seal, checkbooks, and canceled checks;

all Documents prepared or received by any Seller or any of its Affiliates in connection with the sale of the Acquired Assets and/or the Excluded Business, including (i) all records and reports prepared or received by Sellers, any of their respective Affiliates or Advisors in connection therewith, (ii) all bids and expressions of interest received from third parties with respect to the acquisition of any of Sellers’ businesses or assets; and (iii) all privileged materials, documents and records of a Seller or any of its Affiliates;

all current and prior insurance policies of any of Sellers, including for the avoidance of doubt all director and officer insurance policies, and all rights and benefits of any nature of Sellers with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;

any capital stock or other equity interests of, or held by, any Seller or any of their respective Subsidiaries (or any securities convertible into, exchangeable, or exercisable for any such capital stock or other equity interests), including interests in joint ventures;

the sponsorship of all Seller Plans, and any right, title or interest in any of the assets thereof or relating thereto;

Sellers’ claims or other rights under this Agreement, including the Purchase Price hereunder, or any agreement, certificate, instrument, or other document executed and delivered between any Seller and Purchaser in connection with the transactions contemplated hereby, or any other agreement between any Seller and Purchaser entered into on or after the date hereof;

all Tax refunds and Tax attributes that are not transferred by the operation of applicable Tax Law.

1.3 Assumption of Certain Liabilities. On the terms and subject to the conditions set forth herein and in the Sale Order, effective as of the Closing, Purchaser shall irrevocably assume from Sellers (and from and after the Closing pay, perform, discharge, or otherwise satisfy in accordance with their respective terms), and Sellers shall irrevocably convey, transfer, and assign to Purchaser, only the following Liabilities, without duplication and only to the extent not paid prior to the Closing (collectively, the “Assumed Liabilities”):


5

all Liabilities arising out of the ownership, use or operation of the Acquired Assets, in each case, from and after the Closing Date;

all Liabilities (including, for the avoidance of doubt, Taxes (other than income Taxes of Sellers)) relating to the Cash Payment required to be paid, or actions required to be taken or not to be taken, by Purchaser under this Agreement and all Transfer Taxes;

all Liabilities agreed to be assumed by Purchaser or for which Purchaser has agreed to be responsible in accordance with this Agreement;

all Liabilities to the extent arising out of events or circumstances occurring from and after the Closing, in respect of or in connection with the failure by Purchaser or any of its Affiliates to comply with any Law or Order in respect of the Acquired Assets or the Business on or following the Closing Date;

all Liabilities of Sellers under the Assigned Contracts that become due from and after the Closing; and

all cure costs required to be paid pursuant to section 365 of the Bankruptcy Code in connection with the assumption and assignment of the Assigned Contracts or Acquired Equipment (the “Cure Costs”).

1.4 Excluded Liabilities. Purchaser shall not assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of, or Action against, Sellers or relating to the Acquired Assets, of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, currently existing or hereafter arising, matured or unmatured, direct or indirect, and however arising, whether existing on the Closing Date or arising thereafter as a result of any act, omission, or circumstances taking place prior to the Closing, other than the Assumed Liabilities (all such Liabilities that are not Assumed Liabilities being referred to collectively herein as the “Excluded Liabilities”).

1.5 Assumption/Rejection of Certain Contracts.

Assumption and Assignment of Executory Contracts. Sellers shall provide timely and proper written notice of the motion seeking entry of the Sale Order to all parties to any executory Contracts or unexpired leases to which any Seller is a party that are Assigned Contracts and take all other actions reasonably necessary to cause such Contracts to be assumed by Sellers and assigned to Purchaser pursuant to section 365 of the Bankruptcy Code to the extent that such Contracts are Assigned Contracts at Closing. The Sale Order shall provide that as of and conditioned on the occurrence of the Closing, Sellers shall assign or cause to be assigned to Purchaser, as applicable, the Assigned Contracts, each of which shall be identified by the name or appropriate description and date of the Assigned Contract (if available), the other party to the Assigned Contract and the address of such party for notice purposes, all included on an exhibit attached to either a notice filed in connection with the motion for approval of the Sale Order or a separate motion for authority to assume and assign such Assigned Contracts. Such exhibit shall also set forth Sellers’ good faith estimate of the amounts necessary to cure any defaults under each of the Assigned Contracts as determined by Sellers based on Sellers’ books


6

and records or as otherwise determined by the Bankruptcy Court. At the Closing, Sellers shall, pursuant to the Sale Order and the Assignment and Assumption Agreement(s), assume and assign to Purchaser (the consideration for which is included in the Purchase Price), all Assigned Contracts that may be assigned by any such Seller to Purchaser pursuant to sections 363 and 365 of the Bankruptcy Code, subject to adjustment pursuant to Section 1.5(b). At the Closing, Purchaser shall (i) pay all Cure Costs and (ii) assume, and thereafter in due course and in accordance with its respective terms pay, fully satisfy, discharge and perform all of the obligations under each Assigned Contract pursuant to section 365 of the Bankruptcy Code.

Excluding or Adding Assigned Contracts Prior to Closing. Purchaser shall have the right to notify Sellers in writing of any Assigned Contract that it does not wish to assume or a Contract to which any Seller is a party that Purchaser wishes to add as an Assigned Contract no later than November 5, 2020 and (i) any such previously considered Assigned Contract that Purchaser no longer wishes to assume shall be automatically deemed removed from the Schedules related to Assigned Contracts and automatically deemed added to the Schedules related to Excluded Contracts, in each case, without any adjustment to the Purchase Price, except to the extent (and solely to the extent) of any reduction of any Cure Costs as a result of Contracts being excluded from the Assigned Contracts by Purchaser, and (ii) any such previously considered Excluded Contract that Purchaser wishes to assume as an Assigned Contract shall be automatically deemed added to the Schedules related to Assigned Contracts, automatically deemed removed from the Schedules related to Excluded Contracts, and assumed by Sellers to sell and assign to Purchaser, in each case, without any adjustment to the Purchase Price, except to the extent (and solely to the extent) of any increase of any Cure Costs as a result of Contracts being included in the Assigned Contracts by Purchaser. Purchaser shall be solely responsible for the payment, performance and discharge when due of the Liabilities under the Assigned Contracts arising from the time of and after the Closing.

Non-Assignment. Notwithstanding the foregoing, a Contract shall not be an Assigned Contract hereunder and shall not be assigned to, or assumed by, Purchaser to the extent that such Contract (i) is been rejected by a Seller or terminated by a Seller or any other party thereto, or terminates or expires by its terms, on or prior to such time as it is to be assumed by Purchaser as an Assigned Contract hereunder and is not continued or otherwise extended upon assumption or (ii) requires a Consent or Governmental Authorization (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to Purchaser of the applicable Seller’s rights under such Contract, and such Consent or Governmental Authorization has not been obtained prior to such time as it is to be assumed by Purchaser as an Assigned Contract hereunder. In the event that any Assigned Contract is deemed not to be assigned pursuant to clause (ii) of the first sentence of this Section 1.5(b), the Closing shall nonetheless take place subject to the terms and conditions set forth herein and, thereafter, through the earlier of such time as such Consent or Governmental Authorization is obtained and six (6) months following the Closing (or the remaining term of such Contract or the closing of the Bankruptcy Case, if shorter), Sellers and Purchaser shall (A) use reasonable best efforts to secure such Consent or Governmental Authorization as promptly as practicable after the Closing (without Seller having to pay any costs or fees in order to do so) and (B) cooperate in good faith in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser, including subcontracting, licensing, or sublicensing to Purchaser any or all of any Seller’s rights and obligations with respect to any such Assigned Contract, under which (1) Purchaser shall


7

obtain (without infringing upon the legal rights of such third party or violating any Law) the economic rights and benefits (net of the amount of any related Tax costs imposed on Sellers or their respective Affiliates) under such Assigned Contract with respect to which the Consent and/or Governmental Authorization has not been obtained and (2) Purchaser shall assume any related burden and obligation (including performance) with respect to such Assigned Contract. Upon satisfying any requisite Consent or Governmental Authorization requirement applicable to such Assigned Contract after the Closing, such Assigned Contract shall promptly be transferred and assigned to Purchaser in accordance with the terms of this Agreement, the Sale Order and the Bankruptcy Code.

ARTICLE II

CONSIDERATION; CLOSING

2.1 Consideration.

The aggregate consideration (collectively, the “Purchase Price”) to be paid by Purchaser for the purchase of the Acquired Assets shall be: (i) the assumption of Assumed Liabilities and (ii) an amount in cash equal to $12,000,000.00 (the “Cash Payment”) (such sum, the “Purchase Price”).

At the Closing, Purchaser shall deliver, or cause to be delivered, to the Company an amount in cash equal to the Cash Payment less the Deposit (the “Closing Date Payment”). The Closing Date Payment and any payment required to be made pursuant to any other provision hereof shall be made in cash by wire transfer of immediately available funds to such bank account as shall be designated in writing by the applicable Party to (or for the benefit of) whom such payment is to be made at least two (2) Business Days prior to the date such payment is to be made.

2.2 Deposit.

Purchaser has, on or prior to the date hereof, made an earnest money deposit with Citibank, N.A. (the “Escrow Agent”) in the amount of ten percent (10%) of the Cash Payment (together with any interest, dividends, gains and other income earned with respect to such earnest money deposit, the “Deposit”), by wire transfer of immediately available funds for deposit into a separate escrow account (the “Deposit Escrow Account”), established pursuant to the escrow agreement, dated as of the date hereof, by and among the Company, Purchaser and the Escrow Agent, substantially in the form attached hereto as Exhibit D (the “Escrow Agreement”). The Deposit shall not be subject to any lien, attachment, trustee process, or any other judicial process of any creditor of any of Sellers or Purchaser and shall be applied against payment of the Cash Payment on the Closing Date.

If this Agreement has been terminated by the Company pursuant to Section 8.1(e) or Section 8.1(g) (or by Purchaser pursuant to Section 8.1(b), 8.1(c), 8.1(d) or 8.1(f), in each case in circumstances where the Company would be entitled to terminate this Agreement pursuant to Section 8.1(e) or Section 8.1(g)), then the Company shall retain the Deposit together with all received investment income, if any.


8

If this Agreement has been terminated by any Party, other than as contemplated by Section 2.2(b), then the Deposit, together with all received investment income, if any, shall be returned to Purchaser within five (5) Business Days after such termination.

The Parties agree that the Company’s right to retain the Deposit, as set forth in Section 2.2(b), is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Sellers for their respective efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision.

If the Closing occurs, the Deposit shall be transferred to the Company.

2.3 Closing. The closing of the purchase and sale of the Acquired Assets, the delivery of the Closing Date Payment, the assumption of the Assumed Liabilities and the consummation of the other transactions contemplated by this Agreement (the “Closing”) will take place by telephone conference and electronic exchange of documents (or, if the Parties agree to hold a physical closing, at the offices of Kirkland & Ellis LLP, located at 601 Lexington Ave New York, New York 10022) at 8:00 a.m. New York time on the second (2nd) Business Day following full satisfaction or due waiver (by the Party entitled to the benefit of such condition) of the closing conditions set forth in Article VII (other than conditions that by their terms or nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other place and time as the Parties may agree; provided that by written notice to the Sellers and the Company, the Purchaser may cause the Closing Date to occur no earlier than November 23, 2020. The date on which the Closing actually occurs is referred to herein as the “Closing Date.”

2.4 Closing Deliveries by Sellers. At or prior to the Closing, Sellers shall deliver to Purchaser:

a bill of sale substantially in the form of Exhibit A (the “Bill of Sale”) duly executed by Sellers;

each IP assignment agreement substantially in the form of Exhibit B (the “IP Assignment Agreement”), duly executed by Sellers party thereto;

to the extent applicable, an assignment and assumption agreement substantially in the form of Exhibit C (the “Assignment and Assumption Agreement”), duly executed by Sellers party thereto which shall also include the assignment of any Assigned Contracts and/or Transferred Lease;

a copy of the Sale Order, as entered by the Bankruptcy Court;

a duly executed IRS Form W-9 with respect to each Seller;

an officer’s certificate, dated as of the Closing Date, executed by a duly authorized officer of the Company certifying that the conditions set forth in Sections 7.2(b) and 7.2(c) have been satisfied;


9

a joint written instruction, duly executed by Sellers, instructing the Escrow Agent to release the Deposit to the Company by wire transfer of immediately available funds; and

any other reasonable documentation so requested by Purchaser to effect the transactions contemplated by this Agreement, on the terms set forth in this Agreement.

2.5 Closing Deliveries by Purchaser. At the Closing, Purchaser shall deliver to (or at the direction of) the Company:

the Closing Date Payment;

the Bill of Sale, duly executed by Purchaser;

each IP Assignment Agreement, duly executed by Purchaser;

the Assignment and Assumption Agreement, duly executed by Purchaser, to the extent applicable;

an officer’s certificate, dated as of the Closing Date, executed by a duly authorized officer of Purchaser certifying that the conditions set forth in Sections 7.3(a), 7.3(b) and 7.3(c) have been satisfied; and

a joint written instruction, duly executed by Purchaser, instructing the Escrow Agent to release the Deposit to the Company by wire transfer of immediately available funds, the Deposit.

2.6 [Intentionally Omitted]

2.7 Withholding. Purchaser shall not be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement, except to the extent resulting from Seller’s failure to satisfy its obligations under Section 2.4(e).

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLERS

Except as (i) disclosed in any forms, statements or other documents filed with the Bankruptcy Court or (ii) set forth in the Schedules delivered by the Company concurrently herewith and Section 10.10, Sellers represent and warrant to Purchaser as follows as of the date hereof and as of the Closing Date.

3.1 Organization and Qualification. Each of the Company and its Subsidiaries (a) is an entity duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, as applicable, (b) has all requisite power and authority to own and operate its properties and to carry on its businesses as now conducted, subject to the provisions of the Bankruptcy Code, and (c) is qualified to do business and is in good standing (or its equivalent) in every jurisdiction in which its ownership of property or the


10

conduct of its business as now conducted requires it to qualify, in the case of (b) and (c), except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

3.2 Authorization of Agreement. The execution, delivery, and performance of this Agreement by each Seller, and the consummation by such Seller of the transactions contemplated hereby, subject to requisite Bankruptcy Court approvals, have been duly and validly authorized by all requisite corporate or similar organizational action, and no other corporate or similar organizational proceedings on its part are necessary to authorize the execution, delivery or performance of this Agreement by such Seller. Subject to requisite Bankruptcy Court approvals, this Agreement has been duly and validly executed and delivered by such Seller, and, assuming this Agreement is a valid and binding obligation of Purchaser, this Agreement constitutes a valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, except as limited by the application of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or other Laws relating to or affecting creditors’ rights or general principles of equity (whether considered in a proceeding in equity or at law) (the “Enforceability Exceptions”).

3.3 Conflicts; Consents.

Assuming that (w) requisite Bankruptcy Court approvals are obtained, (x) the notices, authorizations, approvals, Orders, permits or consents set forth on Schedule 3.3(b) are made, given or obtained (as applicable), (y) the requirements of the HSR Act and any other applicable antitrust, competition or merger control Laws promulgated by any Governmental Body (“Competition Laws”) are complied with, and (z) any filings required by any applicable federal or state securities or “blue sky” Laws are made, the execution, delivery and performance by Sellers of this Agreement and the consummation by Sellers of the transactions contemplated hereby, do not: (i) violate the certificate of formation, limited liability company agreement or equivalent organizational documents of the Company or any of its Subsidiaries; (ii) violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound; or (iii) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, create in any party thereto the right to terminate or cancel, or require any consent under, or result in the creation or imposition of any Encumbrance (other than a Permitted Encumbrance) on any property or asset of the Company or any of its Subsidiaries under, any assigned Contracts, if any; except, in the case of clauses (ii) and (iii), for any such violations, breaches, defaults or other occurrences as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Sellers are not required to file, seek or obtain any notice, authorization, approval, Order, permit, or consent of or with any Governmental Body in connection with the execution, delivery and performance by Sellers of this Agreement or the consummation by Sellers of the transactions contemplated hereby, except (i) requisite Bankruptcy Court approvals, (ii) any filings required to be made under any Competition Laws, (iii) such filings as may be required by any applicable federal or state securities or “blue sky” Laws, (iv) where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, is not and would not, individually or in the aggregate, reasonably be expected to be material to the


11

Business, or (v) as may be necessary as a result of any facts or circumstances relating to Purchaser or any of its Affiliates.

3.4 [Intentionally Omitted].

3.5 Contracts.

Except as set forth on Schedule 3.5(a), Contracts entered into after the date hereof, and Contracts that are not primarily related to the Business or any Seller Plans, neither the Company nor any of its Subsidiaries is a party to any:

(i) collective bargaining agreement with any labor union;

(ii) agreement under which the Company or one of its Subsidiaries has borrowed any money or issued any note, indenture or other evidence of similar indebtedness or guaranteed such indebtedness of others (other than intercompany indebtedness among the Company and its Subsidiaries, guarantees of indebtedness of the Company or any of its Subsidiaries, endorsements for the purpose of collection or purchases of equipment or materials made under conditional sales agreements, in each case in the Ordinary Course), in each case, having an outstanding principal amount in excess of $1,500,000;

(iii) material license of any material Intellectual Property that involves payments (by or to the Company or any of its Subsidiaries) in excess of $100,000 per annum and is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less for a cost of $100,000 or less (other than licenses of commercially available, off-the-shelf software and other than licenses entered into in the Ordinary Course);

(iv) lease or other agreement under which the Company or any of its Subsidiaries is lessee of, or holds or operates any personal property owned by any third party, for which the annual rental exceeds $200,000 that is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less for a cost of $200,000 or less;

(v) agreement or group of related agreements with the same party for the purchase of products or services, in either case, under which the aggregate undelivered balance of such products and services has a selling price in excess of $1,000,000 and which is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less for a cost of $1,000,000 or less (other than purchase orders entered into in the Ordinary Course);

(vi) that materially limits or purports to limit the ability of the Business to compete in any line of business or with any Person or in any geographic area;

(vii) agreement relating to any acquisition or disposition by the Company of any business (whether by asset or stock purchase or otherwise) or any merger, consolidation or similar business combination transaction, in each case, pursuant


12

to which the Company has an outstanding obligation to pay any purchase price thereunder in excess of $250,000 or other material obligation;

(viii) agreement relating to any joint venture or partnership; or

(ix) agreement in writing to enter into any of the foregoing.

[Intentionally Omitted]

3.6 Litigation. Other than the Bankruptcy Case, as of the date hereof, there are no Actions pending against or by the Company or any of its Subsidiaries with respect to the Business, at law or in equity, or before or by any Governmental Body, other than any Action pursuant to which no injunctive or equitable relief is sought or would not, individually or in the aggregate, reasonably be expected to be material to the Business. Other than in connection with the Bankruptcy Case, neither the Company nor any of its Subsidiaries is subject to any outstanding Order, other than any such Order where no injunctive or equitable relief was granted or were not material to the Business.

3.7 Permits; Compliance with Laws.

Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, each of the Company and its Subsidiaries holds and is in compliance, in all material respects, with all permits, certificates, licenses, approvals, registrations and authorizations that are material to the Business and required in connection with the conduct of its business under Laws (the “Permits”). Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, all of the Permits are valid and in full force and effect.

The Company and its Subsidiaries are, and have been during the prior two (2) years, in compliance, in all material respects, with all applicable Laws, and during the prior two (2) years neither the Company nor any of its Subsidiaries has received any written notice of any action or proceeding against it alleging any failure to comply in any material respect with any such Laws, except in each case as would not, individually or in the aggregate, reasonably be expected to be material to the Business. No investigation by any Governmental Body with respect to the Company or any of its Subsidiaries is pending or, to the Company’s Knowledge, threatened, and during the prior two (2) years neither the Company nor any of its Subsidiaries has received any written notice of any such investigation, except, in each case, for any such investigation that would not, individually or in the aggregate, reasonably be expected to be material to the Business.

3.8 Environmental Matters.

The Company and each of its Subsidiaries are in compliance in all material respects with all applicable Environmental Laws, which compliance has included obtaining all permits, licenses and authorizations required under applicable Environmental Laws that are material to the operations of the Business, except in each case as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;


13

Neither the Company nor any of its Subsidiaries has during the prior two (2) years received written notice from any Governmental Body regarding any actual or alleged violation of or liability under Environmental Laws that would reasonably be expected to have a Material Adverse Effect; and

To the Knowledge of the Company, no Hazardous Substance has been released at a Transferred Stores by the Company or its Subsidiaries in violation of, and in a manner that would result in liability for the Company or its Subsidiaries under, any Environmental Law, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

3.9 Intellectual Property.

Schedule 3.9(a) sets forth a correct and complete list of all material registered Intellectual Property, and all applications for registrations of Business Intellectual Property filed with any Governmental Body, in each case that is owned by the Company or one or more of its Subsidiaries (collectively, “Registered Intellectual Property”).

The Registered Intellectual Property is owned by a Seller free and clear of all Encumbrances, other than (i) the Permitted Encumbrances and (ii) currently existing pledge or security interests held by the Sellers’ third party lenders and/or service providers under one or more of the Sellers’ Contracts. The Registered Intellectual Property is subsisting and, to the Knowledge of the Company and/or the respective Seller, enforceable.

To the Knowledge of the Company and the relevant Seller, the Business does not infringe, misappropriate or otherwise violate any Intellectual Property of any other Person, except where such infringement, misappropriation or violation would not, individually or in the aggregate, reasonably be expected to be material to the Business.

To the Knowledge of the Company and the relevant Seller, no third party infringes, misappropriates or otherwise violates any Business Intellectual Property, except where such infringement, misappropriation or violation would not, individually or in the aggregate, reasonably be expected to be material to the Business.

The Company and its Subsidiaries have used efforts that are reasonable under the circumstances to maintain the secrecy of the material Trade Secrets included in the Business Intellectual Property, except where such failure would not, individually or in the aggregate, reasonably be expected to be material to the Business.

This Section 3.9 contains the sole and exclusive representations and warranties of the Company with respect to Intellectual Property.

3.10 Data Security. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, the Company and its Subsidiaries maintain commercially reasonable policies and procedures regarding data privacy, protection and security designed to protect any personally identifiable information of any individuals, including any customers, prospective customers, employees and/or other third parties of the Business collected by it. Except as would not, individually or in the aggregate, reasonably be expected to be


14

material to the Business, to the Knowledge of the Company, the transactions contemplated by this Agreement will not result in a breach of the Company’s published privacy policies in effect as of the date hereof. To the Knowledge of the Company, as of the date hereof, the Company is in compliance in all material respects with all Laws relating to data loss, theft and breach of security notification obligations. This Section 3.10 contains the sole and exclusive representations and warranties of the Company with respect to data privacy, protection, and security.

3.11 Seller Plans.

Schedule 3.11(a) sets forth a list of all material Seller Plans.

Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, taken as a whole, each Seller Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code, has either (i) received a favorable determination letter from the Internal Revenue Service or (ii) may rely on a favorable opinion letter issued by the Internal Revenue Service.

The Seller Plans comply in form and in operation in all material respects with their terms and applicable Laws, including the requirements of the Code and ERISA, except as would not, individually or in the aggregate, reasonably be expected to be material to the Business taken as a whole.

With respect to the Seller Plans and except as would not, individually or in the aggregate, reasonably be expected to be material to the Business taken as a whole: (i) all material contributions required to be made by the Company or any of its Subsidiaries have been made or properly accrued; (ii) there are no Actions pending or, to the Company’s Knowledge, overtly threatened other than routine claims for benefits; and (iii) to the Company’s Knowledge, there have been no “prohibited transactions” (as that term is defined in Section 406 of ERISA or Section 4975 of the Code).

Neither the Company nor any of its Subsidiaries contributes to any Multiemployer Plan that is subject to Title IV of ERISA and Section 412 of the Code for the benefit of any employees of Sellers that are primarily engaged in the operation of the Business (the “Business Employees”).

None of the Seller Plans obligates the Company or its Subsidiaries to provide a Business Employee (or any dependent thereof) any material life insurance or medical or health benefits after his or her termination of employment with the Company or any of its Subsidiaries, other than as required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state or local Law.

3.12 Employees.

To the Knowledge of the Company, with respect to the Business Employees, the Company and its Subsidiaries are in compliance in all material respects with all applicable Laws relating to the employment of labor, including provisions thereof relating to wages, hours, equal opportunity, collective bargaining, layoffs and immigration compliance,


15

except for such non-compliance that is not material to the Company and its Subsidiaries taken as a whole. With respect to the Business Employees, there are no administrative charges or court complaints pending or, to the Company’s Knowledge, threatened against the Company or any of its Subsidiaries before the U.S. Equal Employment Opportunity Commission or any other Governmental Body concerning alleged employment discrimination or any other matters relating to the employment of labor, in each case, that would reasonably be expected to be material to the Business.

There is no unfair labor practice charge or complaint pending or, to the Company’s Knowledge, threatened against the Company before the National Labor Relations Board or any similar foreign, state or local body with respect to any Business Employees. To the Knowledge of the Company, during the prior two (2) years, the Company has not experienced any union organizing or decertification activities, work stoppage, slowdowns or other material labor disputes with respect to Business Employees, and, to the Knowledge of the Company, no such activities or disputes are underway or threatened.

3.13 Tax Matters.

All Tax Returns required to be filed under applicable Law by Sellers with respect to the Acquired Assets have been filed and such Tax Returns are complete, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

All Taxes shown as due from Sellers with respect to the Acquired Assets have been paid, except (i) to the extent nonpayment of which is permitted or required by the Bankruptcy Code or (ii) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

3.14 Brokers. There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Sellers that would be the obligation of Purchaser or its Affiliates after the Closing.

3.15 Compliance with Applicable Sanctions and Embargo Laws.

The Company is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the OFAC Consolidated Sanctions List or in any Executive Order issued by the President of the United States and administered by OFAC, or a person or entity prohibited by any OFAC sanctions program or a person or entity whose property and interests in property subject to U.S. jurisdiction are otherwise blocked under any U.S. laws, Executive orders or regulations; (ii) an entity owned, directly or indirectly, individually or in the aggregate, fifty percent or more by one or more persons described in subsection (i); (iii) a person or entity listed on the Sectoral Sanctions Identifications (“SSI”) List maintained by OFAC or otherwise determined by OFAC to be subject to one or more of the Directives issued under Executive Order 13662 of March 20, 2014, or an entity owned, directly or indirectly, individually or in the aggregate, fifty percent or more by one or more persons or entities that are


16

subject to the SSI List restrictions; or (iv) a person or entity named on the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List, Entity List, or Unverified List.

As of the date hereof, the Company has not violated the above referenced laws or regulations, or any other applicable sanctions, embargo, or export control laws or regulations, except as would not, individually or in the aggregate, reasonably be expected to be material to the Business.

3.16 Compliance with Applicable Anti-Bribery and Anti-Corruption Law. During the prior two (2) years, the Company has not, directly or indirectly: (a) made, offered, or paid any illegal contributions, payments, bribes, kickbacks, expenditures, gifts or similar payments or provided any unlawful compensation or gifts or payments to any officer, employee, or representative of any Governmental Body, or any employee, customer or supplier of the Company or any other Person; (b) made, or offered to make any improper payment to any foreign official (as defined in the FCPA); or (c) taken any other action that would cause the Company to be in violation of any Anti- Bribery and Anti-Corruption Law, except as would not, individually or in the aggregate, reasonably be expected to be material to the Business.

3.17 Disclaimer of Other Representations and Warranties. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO PURCHASER OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ADVISORS OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE III, NO AFFILIATE OF ANY SELLER OR THEIR RESPECTIVE ADVISORS OR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY CONSENTS OR APPROVALS REQUIRED IN CONNECTION THEREWITH), THE ACQUIRED ASSETS, THE BUSINESS, THE ASSUMED LIABILITIES, THE BUSINESS, OR ANY INFORMATION PROVIDED OR MADE AVAILABLE TO PURCHASER IN CONNECTION THEREWITH (INCLUDING ANY FORECASTS, PROJECTIONS, ESTIMATES OR BUDGETS), INCLUDING ANY WARRANTY WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PURCHASER

Purchaser represents and warrants to the Company as follows as of the date hereof and as of the Closing Date.

4.1 Organization and Qualification. Purchaser (a) is an entity duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, as applicable, (b) has all requisite power and authority to own and operate its properties and to carry on its businesses as now conducted, and (c) is qualified to do business and is in good standing (or its equivalent) in every jurisdiction in which its ownership of


17

property or the conduct of its business as now conducted requires it to qualify, in the case of (b) and (c) except as would not, individually or in the aggregate, reasonably be expected to have, individually or in the aggregate, a material adverse effect on Purchaser’s ability to consummate the transactions contemplated hereby.

4.2 Authorization of Agreement. The execution, delivery and performance of this Agreement by Purchaser, and the consummation by Purchaser of the transactions contemplated hereby, have been duly and validly authorized by all requisite corporate or similar organizational action, and no other corporate or similar organizational proceedings on its part are necessary to authorize the execution, delivery or performance of this Agreement by Purchaser. This Agreement has been duly and validly executed and delivered by Purchaser, and, assuming this Agreement is a valid and binding obligation of Sellers, this Agreement constitutes a valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as limited by the Enforceability Exceptions.

4.3 Conflicts; Consents.

Assuming that (x) the notices, authorizations, approvals, Orders, permits or consents set forth on Schedule 3.3 are made, given or obtained (as applicable), (y) the requirements of the HSR Act and any other applicable Competition Laws are complied with and (z) any filings required by any applicable federal or state securities or “blue sky” Laws are made, the execution, delivery and performance by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated hereby, do not: (i) violate the certificate of formation, limited liability company agreement or equivalent organizational documents of Purchaser; (ii) violate any Law applicable to Purchaser or by which any property or asset of Purchaser is bound; or (iii) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, create in any party thereto the right to terminate or cancel, or require any consent under, or result in the creation or imposition of any Encumbrance on any property or asset of Purchaser under, any Contract; except, in the case of clauses (ii) and (iii), for any such violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Purchaser to consummate the transactions contemplated hereby.

Purchaser is not required to file, seek or obtain any notice, authorization, approval, Order, permit or consent of or with any Governmental Body or other Person in connection with the execution, delivery and performance by Purchaser of this Agreement or the consummation by Purchaser of the transactions contemplated hereby, except (i) any filings required to be made under the Competition Laws, (ii) such filings as may be required by any applicable federal or state securities or “blue sky” Laws, or (iii) where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Purchaser to consummate the transactions contemplated hereby.

4.4 Financing. Purchaser has, and will have at the Closing, sufficient funds in an aggregate amount necessary to perform the Assumed Liabilities as they become due in accordance with their terms and to consummate all of the other transactions contemplated by this Agreement, including the payment of all fees, expenses of, and other amounts required to be paid


18

by Purchaser in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Purchase Price). Purchaser is and shall be capable of satisfying the conditions contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to any assigned Contracts, if any, and the related Assumed Liabilities.

4.5 Brokers. There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Purchaser or its Affiliates that would be the obligation of any Seller or its Affiliates after the Closing.

4.6 No Litigation. As of the date hereof, there are no Actions pending against or by Purchaser that will adversely affect Purchaser’s performance under this Agreement or the consummation of the transactions contemplated by this Agreement.

4.7 Certain Arrangements. As of the date hereof, there are no Contracts, undertakings, commitments, agreements or obligations, whether written or oral, between any member of the Purchaser Group, on the one hand, and any member of the management or board of directors (or applicable governing body) of the Company or its Subsidiaries, any holder of equity or debt securities of the Company or its Subsidiaries, or any lender or creditor of the Company or its Subsidiaries, on the other hand, (a) relating in any way to the acquisition of the Acquired Assets or the other transactions contemplated by this Agreement or (b) that would be reasonably likely to prevent, restrict, impede or affect adversely the ability of the Company to entertain, negotiate or participate in any such transactions

4.8 No Additional Representations or Warranties. Except for the representations and warranties contained in this Article IV, each of Sellers acknowledges that neither Purchaser nor any other Person on behalf of Purchaser makes any other express or implied representation or warranty with respect to Purchaser or with respect to any other information provided to any Seller by Purchaser.

4.9 No Outside Reliance. Notwithstanding anything contained in this Article IV or any other provision of this Agreement to the contrary, Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that the representations and warranties made by Sellers to Purchaser in Article III (as qualified by the Schedules and in accordance with the express terms and conditions (including limitations and exclusions) of this Agreement) (the “Express Representations”) are the sole and exclusive representations, warranties and statements of any kind made to Purchaser or any member of the Purchaser Group and on which Purchaser and the Purchaser Group may rely in connection with the transactions contemplated by this Agreement. Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that (other than solely to the extent expressly set forth in the Express Representations) all other representations, warranties and statements of any kind or nature expressed or implied, whether in written, electronic or oral form, including (a) with respect to the completeness or accuracy of, or any omission to state or to disclose, any information, including in the Projections, the confidential information presentation prepared by Nfluence Partners (the “Information Presentation”), in that certain datasite administered by Intralinks, Inc. (the “Dataroom”), any Projections or in any meetings, calls or correspondence with management of the Company and its Subsidiaries or any other Person on behalf of the Company, its Subsidiaries


19

or any of their respective Affiliates or Advisors and (b) the historical, current or future business, financial condition, results of operations, assets, liabilities, properties, contracts, or prospects of the Company or any of its Subsidiaries, or the quality, quantity or condition of the Company’s or its Subsidiaries’ assets, in each case, are specifically disclaimed by Sellers, and that neither Purchaser nor any member of the Purchaser Group has relied on any such representations, warranties or statements. Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that it has conducted to its full satisfaction an independent investigation and verification of the business, financial condition, results of operations, assets, liabilities, properties, contracts and prospects of the Company and its Subsidiaries, and, in making its determination to proceed with the transactions contemplated by this Agreement, Purchaser has relied solely on the results of the Purchaser Group’s own independent investigation and verification, and has not relied on, is not relying on, and will not rely on, the Information Presentation, any Projections or any information, statements, disclosures, documents, projections, forecasts or other material made available to Purchaser or any of its Affiliates or Advisors in the Dataroom or otherwise, in each case, whether written or oral, made or provided by, or as part of, any of the foregoing or the Company, its Subsidiaries or any of their respective Affiliates or Advisors, or any failure of any of the foregoing to disclose or contain any information, except to the extent express set forth in the Express Representations (it being understood that Purchaser and the Purchaser Group have relied only on the Express Representations).

ARTICLE V

BANKRUPTCY COURT MATTERS

5.1 Bankruptcy Actions.

The Company and Purchaser acknowledge that this Agreement and the sale of the Acquired Assets are subject to higher and better bids and Bankruptcy Court approval pursuant to the Bid Procedures, as approved by the Bid Procedures Order. The Company and Purchaser acknowledge that Sellers must take reasonable steps to demonstrate that they have sought to obtain the highest or otherwise best price for the Acquired Assets, including giving notice thereof to the creditors of Sellers and other interested parties, providing information about the Company to prospective bidders, entertaining higher and better offers from such prospective bidders, and, in the event that additional qualified prospective bidders desire to bid for the Acquired Assets, conducting an Auction.

If an Auction is conducted, and Purchaser is not the prevailing party at the conclusion of such Auction (such prevailing party, the “Successful Bidder”) but is the next highest or otherwise second-best bid for the Acquired Assets, Purchaser shall be required to serve as a back-up bidder (the “Backup Bidder”) and keep Purchaser’s bid to consummate the transactions contemplated by this Agreement on the terms and conditions set forth in this Agreement (as the same may be revised in the Auction) open and irrevocable until this Agreement is otherwise terminated. If the Successful Bidder fails to consummate the applicable Alternative Transaction as a result of a breach or failure to perform on the part of such Successful Bidder, the Backup Bidder will be deemed to have the new prevailing bid, and the Company may consummate the transactions contemplated by this Agreement on the terms and


20

conditions set forth in this Agreement as such terms may have been improved upon in the Auction.

Notwithstanding any other provision of this Agreement to the contrary, Purchaser acknowledges that Sellers and their Affiliates and Advisors are and may continue (i) soliciting inquiries, proposals, or offers for the Acquired Assets in connection with any Alternative Transaction, (ii) responding to requests for information or due diligence inquiries, or making management available for such purposes, to Persons in connection with any Alternative Transaction and (iii) furnishing any information with respect to, or assist or participate in, or facilitate in any other manner, any effort or attempt by any Person to do or seek to do any of the foregoing. Notwithstanding any other provision of this Agreement to the contrary, Purchaser acknowledges and agrees that Sellers and their Affiliates may enter into a definitive agreement providing for an Alternative Transaction.

The Company shall promptly serve true and correct copies of the motion seeking entry of the Sale Order and all related pleadings in accordance with the Bid Procedures Order, the Bankruptcy Code, the Bankruptcy Rules and any other applicable Order of the Bankruptcy Court.

Purchaser shall promptly take all actions as are reasonably requested by the Company to assist in obtaining the Bankruptcy Court’s entry of the Sale Order and any other Order reasonably necessary in connection with the transactions contemplated by this Agreement as promptly as practicable, including furnishing affidavits, financial information or other documents or information for filing with the Bankruptcy Court and making such employees and Advisors of Purchaser and its Affiliates available to testify before the Bankruptcy Court for the purposes of, among other things providing necessary assurances of performance by Purchaser under this Agreement and demonstrating that Purchaser is a “good faith” purchaser under section 363(m) of the Bankruptcy Code, as well as demonstrating Purchaser’s ability to pay and perform or otherwise satisfy any Assumed Liabilities following the Closing.

5.2 Cure Costs. Subject to entry of the Sale Order, Purchaser shall, on or prior to the Closing (or, in the case of any Contract that is to be assigned following the Closing pursuant to Section 1.5, on or prior to the date of such assignment), pay the Cure Costs and cure any and all other defaults and breaches under the Assigned Contracts so that such Contracts may be assumed by the applicable Seller and assigned to Purchaser in accordance with the provisions of section 365 of the Bankruptcy Code and this Agreement.

5.3 Bankruptcy Court Filings. Sellers shall use reasonable best efforts to obtain entry of the Sale Order. The Sale Order shall, among other things, (a) approve and direct, pursuant to sections 105, 363, and 365 of the Bankruptcy Code, (i) the execution, delivery and performance by Sellers of this Agreement, (ii) the sale of the Acquired Assets to Purchaser on the terms set forth herein and free and clear of all Encumbrances (other than Encumbrances included in the Assumed Liabilities and Permitted Encumbrances), and (iii) the performance by Sellers of their respective obligations under this Agreement; (b) authorize, empower and direct Sellers to assume and assign to Purchaser the Assigned Contracts; (c) find that Purchaser is a “good faith” buyer within the meaning of section 363(m) of the Bankruptcy Code, find that Purchaser is not a successor to any Seller, and grant Purchaser the protections of section 363(m) of the Bankruptcy


21

Code; (d) find that Purchaser shall have no Liability or responsibility for any Liability or other obligation of any Seller arising under or related to the Acquired Assets other than as expressly set forth in this Agreement, including successor or vicarious Liabilities of any kind or character, including any theory of antitrust, successor, or transferee Liability, labor law, de facto merger, or substantial continuity; (e) find that Purchaser has provided adequate assurance (as that term is used in section 365 of the Bankruptcy Code) of future performance in connection with the assumption of the Assigned Contracts; (f) find that Purchaser shall have no Liability for any Excluded Liability; (g) approve the Break-up Fee; and (h) find that there was no violation of section 363(n) of the Bankruptcy Code. Purchaser agrees that it will promptly take such actions as are reasonably requested by the Company to assist in obtaining Bankruptcy Court approval of the Sale Order, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for purposes, among others, of (x) demonstrating that Purchaser is a “good faith” purchaser under section 363(m) of the Bankruptcy Code and (y) establishing adequate assurance of future performance within the meaning of section 365 of the Bankruptcy Code.

5.4 Approval. Sellers’ obligations under this Agreement and in connection with the transactions contemplated hereby are subject to entry of and, to the extent entered, the terms of any Orders of the Bankruptcy Court (including entry of the Sale Order). Nothing in this Agreement shall require the Company or its Affiliates to give testimony to or submit a motion to the Bankruptcy Court that is untruthful or to violate any duty of candor or other fiduciary duty to the Bankruptcy Court or its stakeholders.

ARTICLE VI

COVENANTS AND AGREEMENTS

6.1 Conduct of Business of Sellers.

Until the earlier of the termination of this Agreement pursuant to Article VIII and the Closing, except (v) for any limitations on operations imposed by the Bankruptcy Court or the Bankruptcy Code, (w) actions taken in good faith business judgment in response to COVID-19, (x) as required by applicable Law, (y) as otherwise required by or reasonably necessary to carry out the terms of this Agreement or as set forth on Schedule 6.1 or (z) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Sellers shall conduct the Business only in the Ordinary Course in all material respects and shall not:

(i) issue any notes, bonds or other debt securities, or otherwise incur any indebtedness for borrowed money or otherwise become liable for any such indebtedness of any other Person, in each case, other than Excluded Liabilities;

(ii) terminate (other than by expiration), amend or modify (other than by automatic extension or renewal) in any material respect the terms of any Contracts; provided, however, that the Company may terminate, amend or modify purchase orders in the Ordinary Course;


22

(iii) settle or compromise any pending or threatened Action if such settlement or compromise would create Liabilities that are not Excluded Liabilities;

(iv) sell, assign, license, transfer, convey, lease, surrender, relinquish or otherwise dispose of any material portion of the Acquired Assets, other than (A) sales of inventory in the Ordinary Course, (B) licenses of Intellectual Property granted on a non-exclusive basis, provided that prior to entry into any such non-exclusive license, Sellers shall advise Purchaser of Sellers’ intent to enter any such non-exclusive license, (C) the expiration of Intellectual Property at the end of the governing terms thereof, or (D) pursuant to existing Contracts, provided that prior to such action being taken, Sellers shall advise Purchaser of Seller’s intent to take such action with reasonably sufficient time to discuss that proposed action with Sellers;

(v) subject any portion of the Acquired Assets that is material to the Business to any Encumbrance, except for Permitted Encumbrances; or

(vi) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.

Notwithstanding anything to the contrary herein, Purchaser acknowledges and agrees that Sellers are liquidating the Excluded Business and selling the Excluded Assets, and that Sellers shall be permitted to take, or appoint a third party to take, all reasonable actions in connection therewith, including entering into liquidation agreements and other Contracts, selling Excluded Assets at discounted prices, and using Sellers’ Intellectual Property to advertise such sales and liquidation.

Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that the Company or its Subsidiaries may determine it needs to take measures or will sustain impacts on its business as a result of COVID-19, and nothing herein shall prevent the Company from taking all reasonable measures it deems fit in order to preserve its Business as a result thereof, nor shall any such impact sustained by the Business be deemed as a breach of this Agreement.

Nothing contained in this Agreement is intended to give Purchaser or its Affiliates, directly or indirectly, the right to control or direct the Business prior to the Closing.

With regard to the protection of the Business Intellectual Properties, Sellers shall (i) as soon as reasonably practical, but in no event later than the date of the Sale Hearing, mail, which may be by email to the extent such method is a legally recognized method of mailing cease and desist letters, a cease and desist letter to any party reflected on Schedule 3.9(d)(3) believed to be infringing or attempting to infringe any of the Business Intellectual Properties; (ii) to the extent that the time to file opposition to the application reflected in Schedule 3.9(d)(3) arises prior to the expiration of the Wind-Down Period, the Sellers shall cause such opposition to be filed in the appropriate venue or agency, at the Sellers’ cost, with a copy of such opposition mailed to Purchaser and Purchaser’s counsel; and (iii) Sellers will reasonably seek to have included in the Sale Order a finding that the Acquired Assets are sold free and clear of the putative interest in a trademark that is a part of the Business Intellectual Properties.


23

6.2 Access to Information.

Until the earlier of the termination of this Agreement pursuant to Article VIII and the Closing, the Company (in its sole discretion) will provide Purchaser and its authorized Advisors with reasonable access and upon reasonable advance notice and during regular business hours to the books and records of the Company and its Subsidiaries, in order for Purchaser and its authorized Advisors to access such information regarding the Company and its Subsidiaries as Purchaser reasonably deems necessary in connection with effectuating the transactions contemplated by this Agreement; provided that (i) such access does not unreasonably interfere with the normal operations of the Company and its Subsidiaries, (ii) such access will occur in such a manner as the Company reasonably determines to be appropriate to protect the confidentiality of the transactions contemplated by this Agreement and (iii) nothing herein will require the Company to provide access to, or to disclose any information to, Purchaser if such access or disclosure (A) would cause significant competitive harm to the Company or any of its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (B) would require the Company or any of its Subsidiaries to disclose any financial or proprietary information of or regarding the Affiliates of the Company (other than the Subsidiaries of the Company) or otherwise disclose information regarding the Affiliates of the Company (other than the Subsidiaries of the Company) that the Company deems to be commercially sensitive, (C) would waive any legal privilege or (D) would be in violation of applicable Laws (including any Competition Laws) or the provisions of any Contract to which the Company or any of its Subsidiaries is bound or would violate any fiduciary duty; provided that, in the event that the Company withholds access or information in reliance on the foregoing clause (C) or (D), the Company shall provide (to the extent possible without waiving or violating the applicable legal privilege or Law) notice to Purchaser that such access or information is being so withheld and shall use commercially reasonable efforts to provide such access or information in a way that would not risk waiver of such legal privilege or applicable Law.

All information provided pursuant to this Section 6.2 will be used solely for the purpose of effecting the transactions contemplated hereby, and shall be treated as “Evaluation Material” pursuant to the terms and conditions of the Confidentiality Agreement, the provisions of which are by this reference hereby incorporated herein. Purchaser will, and will cause its Advisors to, abide by the terms of the Confidentiality Agreement with respect to such access and any information furnished to Purchaser or any of its Advisors. Neither the Company nor any of Sellers makes any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Purchaser may not rely on the accuracy of any such information, in each case, other than the Express Representations.

From and after the Closing for a period of three (3) years following the Closing Date (or, if later, the closing of the Bankruptcy Case), Purchaser will provide Sellers and their Advisors with reasonable access, during normal business hours, and upon reasonable advance notice, to the books and records, including work papers, schedules, memoranda, Tax Returns, Tax schedules, Tax rulings, and other documents (for the purpose of examining and copying) relating to, to the extent acquired by or otherwise transferred to, the Purchaser in the Acquired Assets, the Excluded Assets, the Assumed Liabilities or the Excluded Liabilities with respect to periods or occurrences prior to the Closing Date, and reasonable access, during normal business hours, and upon reasonable advance notice, to employees, officers, Advisors,


24

accountants, offices and properties of Purchaser (including for the purpose of better understanding the books and records). Unless otherwise consented to in writing by the Company, Purchaser will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of the books and records without first offering to surrender to the Company such books and records or any portion thereof that Purchaser may intend to destroy, alter or dispose of. From and after the Closing, Purchaser will, and will cause its employees to, provide Sellers with reasonable assistance, support and cooperation with Sellers’ wind-down and related activities (e.g., helping to locate documents or information related to preparation of Tax Returns or prosecution or processing of insurance/benefit claims).

Purchaser will not, and will not permit any member of the Purchaser Group to, contact any officer, manager, director, employee, customer, supplier, lessee, lessor, lender, licensee, licensor, distributor, noteholder or other material business relation of the Company or its Subsidiaries prior to the Closing with respect to the Company, its Subsidiaries, their business or the transactions contemplated by this Agreement without the prior written consent of the Company for each such contact.

Seller agrees to reasonably cooperate with Purchaser and to assist in the transitioning of the E-Commerce Platforms to Purchaser including but not limited to (i) providing all required passwords and access codes required for and to operate the E-Commerce Platforms and Business and (ii) permitting Purchaser to interview and consult with any employees or consultants operating the E-Commerce platforms and Business during reasonable business hours.

Seller shall negotiate in good faith a transition agreement (“TSA”) with Purchaser to continue the operation of the platforms post-Closing and so that the platforms shall not go dark during any period, but the failure to execute such TSA shall not be deemed a failure of any the conditions set forth in Article VI (on the other hand, for the avoidance of doubt, the failure to negotiate in good faith as required by this Section 6.2(f) may be deemed a failure of any applicable conditions set forth in Article VI).

Notwithstanding anything contained herein to the contrary, Purchaser may designate one or more entities to acquire the Acquired Assets and to designate which assets, contracts or leases shall be acquired by said entities.

6.3 Regulatory Approvals.

Sellers will (i) make or cause to be made all filings and submissions required to be made by Sellers under any applicable Laws for the consummation of the transactions contemplated by this Agreement set forth on Schedule 6.3, (ii) cooperate with Purchaser in exchanging such information and providing such assistance as Purchaser may reasonably request in connection with the foregoing and (iii) (A) supply promptly any additional information and documentary material that may be requested in connection with such filings and (B) use reasonable best efforts to take all actions necessary to obtain all required clearances in connection with such filings.


25

Purchaser will, and will cause its Affiliates and Advisors to, (i) make or cause to be made all filings and submissions required to be made by any member of the Purchaser Group under any applicable Laws for the consummation of the transactions contemplated by this Agreement, (ii) cooperate with Sellers in exchanging such information and providing such assistance as Sellers may reasonably request in connection with all of the foregoing, and (iii) (A) supply promptly any additional information and documentary material that may be requested in connection with such filings and (B) use reasonable best efforts to take all actions necessary to obtain all required clearances.

[Intentionally Omitted]

6.4 Reasonable Efforts; Cooperation.

Subject to the other terms of this Agreement provisions hereof, each Party shall, and shall cause its Advisors to, use its reasonable best efforts to perform its obligations hereunder and to take, or cause to be taken, and do, or cause to be done, all things necessary, proper, advisable or permitted under applicable Law to cause the transactions contemplated herein to be effected as soon as practicable, but in any event on or prior to the Outside Date, in accordance with the terms hereof and to cooperate with each other Party and its Advisors in connection with any step required to be taken as a part of its obligations hereunder. The “reasonable best efforts” of the Company will not require the Company or any of its Subsidiaries, Affiliates or Advisors to expend any money, to remedy any breach of any representation or warranty, to commence any Action, to waive or surrender any right, to modify any Contract or to waive or forego any right, remedy or condition hereunder.

The obligations of the Company pursuant to this Agreement, including this Section 6.4, shall be subject to any Orders entered, or approvals or authorizations granted or required, by or under the Bankruptcy Court or the Bankruptcy Code (including in connection with the Bankruptcy Case), and each of Sellers’ obligations as a debtor-in-possession to comply with any Order of the Bankruptcy Court (including the Bid Procedures Order and the Sale Order) and Sellers’ duty to seek and obtain the highest or otherwise best price for the Acquired Assets as required by the Bankruptcy Code.

6.5 Further Assurances. From time to time, as and when requested by any Party and at such requesting Party’s expense, any other Party will execute and deliver, or cause to be executed and delivered, all such documents and instruments and will take, or cause to be taken, all such further or other actions as such requesting Party may reasonably deem necessary or desirable to evidence and effectuate the transactions contemplated by this Agreement.

6.6 Insurance Matters. Purchaser acknowledges that, upon Closing, all nontransferable insurance coverage provided in relation to Sellers and the Acquired Assets that is maintained by any Seller or its Affiliates (whether such policies are maintained with third party insurers or with such Seller or its Affiliates) shall cease to provide any coverage to Purchaser and the Acquired Assets and no further coverage shall be available to Purchaser or the Acquired Assets under any such policies.


26

6.7 Receipt of Misdirected Assets. From and after the Closing, if any Seller or any of its respective Affiliates receives any right, property or asset that is an Acquired Asset, the applicable Seller shall promptly transfer or cause such of its Affiliates to transfer such right, property or asset (and shall promptly endorse and deliver any such asset that is received in the form of cash, checks or other documents) to Purchaser, and such asset will be deemed the property of Purchaser held in trust by such Seller for Purchaser until so transferred. From and after the Closing, if Purchaser or any of its Affiliates receives any right, property or asset that is an Excluded Asset, Purchaser shall promptly transfer or cause such of its Affiliates to transfer such asset (and shall promptly endorse and deliver any such right, property or asset that is received in the form of cash, checks, or other documents) to the Company, and such right, property or asset will be deemed the property of the Company held in trust by Purchaser for the Company until so transferred.


6.9 Personally Identifiable Information.

Purchaser acknowledges that the Acquired Assets include “personally identifiable information” within the meaning of section 363(b) of the Bankruptcy Code, including the Customer Information (the “Protected Information”).

Purchaser shall: (i) employ appropriate security controls and procedures (technical, operational, and managerial) to protect the Protected Information; (ii) abide by all applicable laws and regulations with respect to the Protected Information; and (iii) take any such actions as may be agreed between Sellers and Purchaser.

Purchaser shall honor all prior requests by any individual who has opted out of receiving marketing messages from Sellers.

Purchaser may use the Protected Information solely for the purpose of continuing the Business operations and continuing to provide similar goods and services to individuals.

6.10 Acknowledgment by Purchaser.

Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that it has conducted to its full satisfaction an independent investigation and verification of the business, financial condition, results of operations, assets, Liabilities, properties, Contracts and prospects of the Company and its Subsidiaries the Acquired Assets, the Assumed Liabilities and the Business, and, in making its determination to proceed with the transactions contemplated by this Agreement, Purchaser and the Purchaser Group have relied solely on the results of the Purchaser Group’s own independent investigation and verification and have not relied on, are not relying on, and will not rely on, any information, statements, disclosures, documents, projections, forecasts or other material made available to Purchaser or any of its Affiliates or Advisors in the Dataroom, the Information Presentation, or the Projections or any information, statements, disclosures or materials, in each case, whether written or oral, made or provided by, or as part of, any of the foregoing or any other Seller Party, or any failure of any of the foregoing to disclose or contain any information, except to the extent expressly set


27

forth in the Express Representations (it being understood that Purchaser and the Purchaser Group have relied only on the Express Representations). Without limiting the generality of the foregoing, Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that neither the Company, nor any other Person (including the Seller Parties), has made, is making or is authorized to make, and Purchaser, on its own behalf and on behalf of the Purchaser Group, hereby waives, all rights and claims it or they may have against any Seller Party with respect to the accuracy of, any omission or concealment of, or any misstatement with respect to, (A) any potentially material information regarding the Company, its Subsidiaries or any of their respective assets (including the Acquired Assets), Liabilities (including the Assumed Liabilities) or operations and (B) any warranty or representation (whether in written, electronic or oral form), express or implied, as to the quality, merchantability, fitness for a particular purpose, or condition of the Company’s or its Subsidiaries’ business, operations, assets, Liabilities, prospects or any portion thereof, except, in each case, solely to the extent expressly set forth in the Express Representations.

Without limiting the generality of the foregoing, in connection with the investigation by the Purchaser Group of the Company and its Subsidiaries, Purchaser and the members of the Purchaser Group, and the Advisors of each of the foregoing, have received or may receive, from or on behalf of the Company, certain projections, forward-looking statements and other forecasts (whether in written, electronic, or oral form, and including in the Information Presentation, Dataroom, management meetings, etc.) (collectively, “Projections”). Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that (i) such Projections are being provided solely for the convenience of Purchaser to facilitate its own independent investigation of the Company and its Subsidiaries, (ii) there are uncertainties inherent in attempting to make such Projections, (iii) Purchaser is familiar with such uncertainties, and (iv) Purchaser is taking full responsibility for making their own evaluation of the adequacy and accuracy of all Projections (including the reasonableness of the assumptions underlying such Projections).

Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that it will not assert, institute, or maintain, and will cause each member of the Purchaser Group not to assert, institute or maintain, any Action that makes any claim contrary to the agreements and covenants set forth in this Section 6.10, including any such Action with respect to the distribution to Purchaser or any member of the Purchaser Group, or Purchaser’s or any member of the Purchaser Group’s use, of the information, statements, disclosures or materials in the Information Presentation, the Dataroom or Projections or any other information, statements, disclosures, or materials, in each case whether written or oral, provided by them or any other Seller Party or any failure of any of the foregoing to disclose any information.

6.11 Wind-Down License. To the extent that Seller or any of its Affiliates retains ownership of or leasehold interest in or to any of the “Lord & Taylor” branded stores following Closing (“Seller-Owned Stores”), Purchaser hereby grants to Seller and its Affiliates a royalty-free, fully-paid, non-assignable, irrevocable license to use the “Lord & Taylor” trademarks and brand, including those listed on Schedule 3.9(a) (the “Lord & Taylor Marks”) from the Closing Date until February 28, 2021 (the “Wind-Down Period”), for the purpose of continuing to sell certain clothing, shoes, accessories and other inventory in connection with the winding down of


28

the operations of any Seller-Owned Stores (the “Wind-Down Operations”). In connection with the Wind-Down Operations, until December 24, 2020 (the “Social Media Wind-Down Period”), Seller and its Affiliates shall retain access to any social media accounts previously used in connection with the “Lord & Taylor” business (the “Lord & Taylor Social Media Accounts”) and Purchaser hereby grants to Seller and its Affiliates during the Social Media Wind-Down Period on a non-assignable basis the right to post content associated with the Wind-Down Operations to the Lord & Taylor Social Media Accounts subject to and review and reasonable approval of Purchaser. Purchaser shall not change the usernames or passwords utilized to access any of the Lord & Taylor Social Media Accounts during the Social Media Wind-Down Period. In support of the Wind-Down Operations, and only during the Wind-Down Period, Purchaser hereby grants to Seller and its Affiliates the non-assignable right to send marketing emails, text messages and other communications using customer data, customer lists, user data and personal information databases that relate to the “Lord & Taylor” business as conducted prior to Closing. In connection with the rights granted hereunder, during the Wind-Down Period, Seller and its Affiliates shall have the non-assignable right to access or retain a copy of any customer data, customer lists, user data and personal information databases for marketing purposes in connection with the Wind-Down Operations, provided, however, that within thirty (30) days of the end of the Wind-Down Period, Seller and its Affiliates shall surrender or provide evidence to the Purchaser of the destruction of any copies of any customer data, customer lists, user data and personal information databases Seller and/or one or more of its Affiliates retained under this Section 6.11. If, prior to the expiration of the Wind-Down Period or Social Media Wind-Down Period, any "Lord & Taylor" branded stores are temporarily or permanently closed as a result of any global or national health concern, epidemic, pandemic (whether or not declared as such by any Governmental Body), viral outbreak (including COVID-19), including any Law, directive, pronouncement or guideline issued by a Governmental Body, the Centers for Disease Control and Prevention, the World Health Organization or industry group providing for business closures, “sheltering-in-place”, curfews or other restrictions that relate to, or arise out of, a national health concern, epidemic or pandemic (including COVID-19) or any change in such Law, directive pronouncement or guideline thereof or any quarantine or trade restrictions related thereto or any other force majeure, the Parties agree to negotiate in good faith to an extension to the Wind-Down Period or Social Media Wind-Down Period.

ARTICLE VII

CONDITIONS TO CLOSING

7.1 Conditions Precedent to the Obligations of Purchaser and Sellers. The respective obligations of each Party to this Agreement to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by each of Sellers and Purchaser) on or prior to the Closing Date, of each of the following conditions:

[Intentionally Omitted];

no court or other Governmental Body has issued, enacted, entered, promulgated or enforced any Law or Order (that is final and non-appealable and that has not


29

been vacated, withdrawn or overturned) restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; and

the Bankruptcy Court shall have entered the Sale Order.

7.2 Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:

Sellers shall have delivered to Purchaser a certified copy of the Sale Order;

(i) each of the representations and warranties made by Sellers in Article III (other than Sections 3.1, 3.2, and 3.14) shall be true and correct as of the Closing Date (disregarding all qualifications or limitations as to “materiality” or “Material Adverse Effect” and words of similar import set forth therein), as though such representations and warranties had been made on and as of the Closing Date (except that representations and warranties that are made as of a specified date need be true and correct only as of such date), except where the failure of such representations and warranties to be true and correct has not had, and would not, individually or in the aggregate, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (ii) the representations and warranties set forth in Sections 3.1, 3.2, and 3.14 shall be true and correct in all material respects as of the Closing Date (disregarding all qualifications or limitations as to “materiality” or “Material Adverse Effect” and words of similar import set forth therein), as though such representations and warranties had been made on and as of the Closing Date (except that representations and warranties that are made as of a specified date need be true and correct only as of such date);

Sellers shall have performed or caused to be performed, in all material respects, all of the obligations and covenants required by this Agreement to be performed by Sellers by the Closing; and

Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4.

7.3 Conditions Precedent to the Obligations of the Company. The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Sellers in their sole discretion), on or prior to the Closing Date, of each of the following conditions:

the representations and warranties made by Purchaser in Article IV shall be true and correct in all material respects (without giving effect to any materiality or similar qualification contained therein), in each case as of the date hereof and as of the Closing Date, with the same force and effect as though all such representations and warranties had been made as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified date, which shall be so true and correct only as of such other specified date);


30

Purchaser shall have performed or caused to be performed, in all material respects, all of the obligations and covenants required by this Agreement to be performed by Purchaser by the Closing; and

Purchaser shall have delivered, or caused to be delivered, to Sellers all of the items set forth in Section 2.5.

7.4 Waiver of Conditions. None of Purchaser or Sellers may rely on the failure of any condition set forth in this Article VII, as applicable, to be satisfied if such failure was caused by such Party’s failure to use, as required by this Agreement, its reasonable best efforts to consummate the transactions contemplated hereby.

ARTICLE VIII

TERMINATION

8.1 Termination of Agreement. This Agreement may be terminated only in accordance with this Section 8.1. This Agreement may be terminated at any time prior to the Closing:

by the mutual written consent of the Company and Purchaser;

by written notice of either Purchaser or the Company to the other Party, upon the issuance by any Governmental Body of an Order restraining, enjoining, or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or declaring unlawful the transactions contemplated by this Agreement, and such Order having become final, binding and non-appealable; provided that no termination may be made by a Party under this Section 8.1(b) if the issuance of such Order was caused by the breach or action or inaction of such Party;

by written notice of either Purchaser or the Company to the other Party, if the Closing shall not have occurred on or before November 23, 2020 (the “Outside Date”); provided that a Party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure of the Closing to have occurred by the Outside Date was caused by the breach or action or inaction of such Party;

by written notice of either Purchaser or the Company to the other Party, if the Bankruptcy Case is dismissed, or converted to a case or cases under Chapter 7 of the Bankruptcy Code, or if a trustee or examiner with expanded powers to operate or manage the financial affairs or reorganization of the Company is appointed in the Bankruptcy Case prior to the entry of the Sale Order, provided, however, in the event the Bankruptcy Case is dismissed or converted or the appointed trustee or examiner with expanded powers elects to terminate this Agreement under this Section 8.1(d) and Purchaser was not the cause of a breach of this Agreement or action or inaction causing such conversion, dismissal or appointment of a trustee or examiner with expanded powers, the Purchaser shall have the right to file a claim (and in the case of a conversion or appointment of a trustee or examiner with expanded powers, to file an administrative expense claim) against the Company for reimbursement of its costs and expenses


31

incurred in negotiating and entering into this Agreement and participating in the Company’s sale process, including, but not limited to, the reasonable attorneys’ fees incurred by Purchaser;

by written notice from the Company to Purchaser, upon a breach of any covenant or agreement on the part of Purchaser, or if any representation or warranty of Purchaser will have become untrue, in each case, such that the conditions set forth in Section 7.3(a) or 7.3(b) would not be satisfied; provided that (i) if such breach is curable by Purchaser then the Company may not terminate this Agreement under this Section 8.1(e) unless such breach has not been cured by the date which is the earlier of (A) two (2) Business Days prior to the Outside Date and (B) thirty (30) days after the Company notifies Purchaser of such breach and (ii) the right to terminate this Agreement pursuant to this Section 8.1(e) will not be available to the Company at any time that the Company and/or the relevant Seller is in material breach of any covenant, representation or warranty hereunder;

by written notice from Purchaser to the Company, upon a breach of any covenant or agreement on the part of any Seller, or if any representation or warranty of any Seller will have become untrue, in each case, such that the conditions set forth in Section 7.2(b) or 7.2(c) would not be satisfied; provided that (i) if such breach is curable by such Seller then Purchaser may not terminate this Agreement under this Section 8.1(f) unless such breach has not been cured by the date which is the earlier of (A) two (2) Business Days prior to the Outside Date and (B) thirty (30) days after Purchaser notifies the Company of such breach and (ii) the right to terminate this Agreement pursuant to this Section 8.1(f) will not be available to Purchaser at any time that Purchaser is in material breach of any covenant, representation or warranty hereunder;

by written notice from the Company to Purchaser, if all of the conditions set forth in Sections 7.1 and 7.2 have been satisfied (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) or waived and Purchaser fails to complete the Closing at the time required by Section 2.3;

by written notice from the Company to Purchaser, if any Seller or the board of directors (or similar governing body) of any Seller determines that proceeding with the transactions contemplated by this Agreement or failing to terminate this Agreement would be inconsistent with its or such Person’s or body’s fiduciary duties; or

by written notice of either Purchaser or the Company to the other Party, if (i) any Seller enters into one or more Alternative Transactions with one or more Persons other than Purchaser at the Auction or (ii) the Bankruptcy Court approves an Alternative Transaction other than with the Purchaser as the Successful Bidder.

8.2 Effect of Termination. In the event of termination of this Agreement pursuant to Section 8.1, this Agreement shall forthwith become void and there shall be no liability on the part of any Party or any of its partners, officers, directors or shareholders; provided that this Section 8.2 and Article X shall survive any such termination; provided further that no termination will relieve Purchaser from any Liability for damages (including damages based on the loss of the economic benefits of the transactions contemplated by this Agreement to Sellers),


32

losses, costs, or expenses (including reasonable legal fees and expenses) resulting from any actual fraud or willful breach of this Agreement prior to the date of such termination (which, for the avoidance of doubt, will be deemed to include any failure by Purchaser to consummate the Closing if and when it is obligated to do so hereunder).

ARTICLE IX

TAXES

9.1 Transfer Taxes. Any sales, use, purchase, transfer, franchise, deed, fixed asset, stamp, documentary stamp, use, or other Taxes and recording charges payable by reason of the sale of the Acquired Assets or the assumption of the Assumed Liabilities under this Agreement or the transactions contemplated hereby (the “Transfer Taxes”) shall be borne and timely paid by Purchaser, and Purchaser shall timely file all Tax Returns related to any Transfer Taxes. Sellers and Purchaser shall use commercially reasonable efforts and cooperate in good faith to exempt all such transactions from any Transfer Taxes.

9.2 Allocation of Purchase Price. For U.S. federal and applicable state and local income Tax purposes, Purchaser, Sellers, and their respective Affiliates shall allocate the Purchase Price (and any Assumed Liabilities or other items treated as part of the purchase price for applicable income Tax purposes) among the Acquired Assets in accordance with section 1060 of the IRC and the Treasury Regulations thereunder (the “Allocation Methodology”). As soon as commercially practicable, but no later than forty-five (45) days following the determination of the final Purchase Price, Purchaser shall provide a proposed allocation to Sellers setting forth the allocation of the Purchase Price (and other amounts treated as Purchase Price for U.S. federal income Tax purposes) among the Acquired Assets in accordance with the Allocation Methodology (the “Allocation”). If Sellers deliver a written objection within thirty (30) days after receipt of the draft Allocation proposed by Purchaser, then Purchaser and Sellers shall negotiate in good faith to resolve any such objection. Any resolution by Sellers and Purchaser shall be conclusive and binding on the Parties once set forth in writing (any such conclusive and binding Allocation, the “Final Purchase Price Allocation”). If Sellers and Purchaser cannot resolve such dispute within thirty (30) days of Purchaser’s receipt of Sellers’ objection, each of Purchaser and Sellers may separately determine the allocation of the Purchase Price, and there shall be no Final Purchase Price Allocation. The Parties and their respective Affiliates shall file all Tax Returns in accordance with the Allocation Methodology, and if any, the Final Purchase Price Allocation. None of the Parties shall take any Tax related action inconsistent with the Final Purchase Price Allocation, if any, unless otherwise required by a “determination” within the meaning of Section 1313(a) of the Code.

9.3 Cooperation. Purchaser and Sellers shall reasonably cooperate, as and to the extent reasonably requested by the other Party, in connection with the filing of Tax Returns and any Action, audit, litigation, or other proceeding with respect to Taxes.

9.4 Preparation of Tax Returns and Payment of Taxes.

Except as otherwise provided by Section 9.1, Sellers shall prepare and timely file (i) all Tax Returns with respect to the Acquired Assets for any Tax period ending on


33

or before the date hereof other than with respect to any Assumed Tax (of which there are none being assumed by the Purchaser) and (ii) all income Tax Returns of Sellers. Except to the extent any Tax reflected on a return required to be prepared and filed by Sellers pursuant to this Section 9.4 is otherwise reflected as an adjustment to Purchase Price or constitutes an Assumed Liability, Sellers shall be responsible for paying any Taxes reflected on any Tax Return that Sellers are obligated to prepare and file under this Section 9.4(a).

Purchaser shall prepare and timely file all other Tax Returns with respect to the Acquired Assets that are not addressed by Section 9.4(a). With respect to any Straddle Period, Purchaser shall prepare such Tax Returns consistent with past practice, and shall provide Sellers with a draft of such Tax Returns at least thirty days prior to the filing of any such Tax Return. Purchaser shall incorporate any changes reasonably requested by Sellers with respect to such Tax Returns. Purchaser shall be responsible for paying any Taxes reflected on any Tax Return that Purchaser is obligated to prepare and file under this Section 9.4(b).

Purchaser shall not file any Tax Return, file an amendment to any previously-filed Tax Return, or otherwise take any Tax position that has the effect of increasing any Tax due for a Pre-Closing Tax Period or portion of a Straddle Period ending on the Closing, unless Purchaser receives an opinion from a nationally recognized accounting firm or law firm that there is no adequate “reporting position” with respect to any previously-asserted position with respect to Taxes. Upon such determination, Purchaser shall provide no less than forty-five (45) days’ notice of such position before filing any such Tax Return. In the event Sellers disagree with such Tax position, and the dispute cannot be resolved between the Parties, such dispute shall be submitted to an independent national accounting firm or law firm for resolution, with the costs of such resolution to be evenly split by Purchaser, on the one hand, and Sellers, on the other hand. The determination of such independent national accounting firm or law firm shall be binding on all Parties and any Tax Return shall be filed consistently with such resolution.


ARTICLE X

MISCELLANEOUS

10.1 Non-Survival of Representations and Warranties and Certain Covenants; Certain Waivers. Each of the representations and warranties and the covenants and agreements (to the extent such covenant or agreement contemplates or requires performance by such Party prior to the Closing) of the Parties set forth in this Agreement or in any other document contemplated hereby, or in any certificate delivered hereunder or thereunder, will terminate immediately as of the Closing such that no claim for breach of any such representation, warranty, covenant or agreement, detrimental reliance or other right or remedy (whether in Contract, in tort or at law or in equity) may be brought with respect thereto after the Closing. Each covenant and agreement that explicitly contemplates performance after the Closing, will, in each case and to such extent, expressly survive the Closing in accordance with its terms, and nothing in this Section 10.1 will be deemed to limit any rights or remedies of any Person for breach of any such surviving covenant or agreement. Purchaser and Sellers Parties acknowledge and agree, on their own behalf and on behalf of the Purchaser Group or the Seller Parties, as the case may be, that the


34

agreements contained in this Section 10.1 (a) require performance after the Closing to the maximum extent permitted by applicable Law and will survive the Closing, and (b) are an integral part of the transactions contemplated hereby and that, without the agreements set forth in this Section 10.1, none of the Parties would enter into this Agreement. Purchaser Group, on its own behalf and on behalf of (after the Closing) the Company, hereby waives all rights and remedies with respect to any environmental, health or safety matters, including those arising under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any other Environmental Laws, relating to this Agreement or the transactions contemplated hereby.

10.2 Expenses. Whether or not the Closing takes place, except as otherwise provided herein (including, for the avoidance of doubt, Section 8.2), all fees, costs and expenses (including fees, costs and expenses of Advisors) incurred in connection with the negotiation of this Agreement and the other agreements contemplated hereby, the performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby will be paid by the Party incurring such fees, costs and expenses; it being acknowledged and agreed that (a) all fees and expenses in connection with any filing or submission that is necessary under the Competition Laws will be allocated pursuant to Section 6.3, and (b) all Transfer Taxes will be allocated pursuant to Section 9.1.

10.3 Notices. Except as otherwise expressly provided herein, all notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (a) when personally delivered, (b) when transmitted by electronic mail, (c) the day following the day on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third (3rd) Business Day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case, to the respective Party at the number, electronic mail address or street address, as applicable, set forth below, or at such other number, electronic mail address or street address as such Party may specify by written notice to the other Party.

Notices to Purchaser:

Saadia Group LLC 1 West 34th Street, 10th Floor New York, New York 10001 Atten: Arvee Claravall Email: [email protected]


35

with a copy to (which shall not constitute notice):

Armstrong & Teasdale LLP 919 Third Avenue, 37th Floor New York, New York 10022 Attn: Jeffery D. Dayon, Esq. Email: [email protected] And Robinson & Cole LLP 1201 N. Market Street, Suite 1406 Wilmington, Delaware 19801 Attn: Jamie L. Edmonson, Esq Email: [email protected]

Notices to Sellers:

Le Tote, Inc. 250 Vesey Street, 22nd Floor New York, New York 10281 Attention: Michael van den Berg Email: [email protected]

with a copy to (which shall not constitute notice):

Kirkland & Ellis LLP 300 North LaSalle Street Chicago, Illinois 60654 Attention: David Eaton Email: [email protected] Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10022 Attention: Marshall Shaffer Jonathan Davis, P.C. Email: [email protected] [email protected] Kirkland & Ellis LLP 200 Clarendon Street Boston, Massachusetts 02116 Attention: Christian Atwood, P.C. Email: [email protected]


36

10.4 Binding Effect; Assignment.

This Agreement shall be binding upon Purchaser and, subject to the terms of the Bid Procedures Order (with respect to the matters covered thereby) and the entry and terms of the Sale Order, Sellers, and shall inure to the benefit of and be so binding on the Parties and their respective successors and permitted assigns, including any trustee or estate representative appointed in the Bankruptcy Case or any successor Chapter 7 case; provided that neither this Agreement nor any of the rights or obligations hereunder may be assigned or delegated without the prior written consent of Purchaser and the Company, and any attempted assignment or delegation without such prior written consent shall be null and void; provided, further, that notwithstanding anything herein to the contrary, the Company and the Sellers may assign their rights under Section 6.11 to Wells Fargo Bank, National Association and TCG BDC, Inc., without the consent of the Purchaser.

Notwithstanding the foregoing, Purchaser may assign this Agreement prior to the Closing without the prior written consent of the Company to an entity owned or controlled at least 50.1% by Purchaser (the “Assignee Purchaser”), provided, however, that (i) in the event the Purchaser assigns this Agreement to the Assigned Purchaser, Purchaser hereby guarantees absolutely and unconditionally to Sellers the due and punctual performance, when and as due, of all obligations, covenants and agreements of Purchaser arising under or pursuant to this Agreement (including, for the avoidance of doubt, the punctual payment of all sums, if any, now and hereafter owed by Purchaser hereunder, including the Purchase Price), and (ii) the Assigned Purchaser shall be deemed to be the Purchaser under this Agreement for all purposes except for Purchaser’s obligations under this Section 10.4(b).

10.5 Amendment and Waiver. Any provision of this Agreement or the Schedules or exhibits hereto may be (a) amended only in a writing signed by Purchaser and the Company or (b) waived only in a writing executed by the Person against which enforcement of such waiver is sought. No waiver of any provision hereunder or any breach or default thereof will extend to or affect in any way any other provision or prior or subsequent breach or default.

10.6 Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing expressed or referred to in this Agreement will be construed to give any Person other than the Parties any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement.

10.7 Non-Recourse. This Agreement may only be enforced against, and any Action based upon, in respect of, arising under, out or by reason of, connected with or related in any manner to this Agreement (whether in contract, tort, law or equity, granted by statute or otherwise) may only be brought against (and are expressly limited to), the Persons that are expressly named as parties to this Agreement (the “Contracting Parties”). Except to the extent named as a party to this Agreement, and then only to the extent of the specific obligations of such parties set forth in this Agreement, no past, present or future shareholder, member, partner, manager, director, officer, employee, Affiliate, agent or Advisor of any Party or any Subsidiary of Sellers (“Non-Party Affiliates”) will have any liability (whether in contract, tort, law or equity, granted by statute or otherwise) for any of the representations, warranties, covenants, agreements or other obligations or Liabilities of any of the parties to this Agreement or for any


37

Action based upon, in respect of, arising under, out or by reason of, connected with or related in any manner to this Agreement or the negotiation, execution, performance or breach; and, to the maximum extent permitted by Law, each Contracting Party waives and releases all such Liabilities, claims and obligations against any such Non-Party Affiliates. Without limiting the foregoing, to the maximum extent permitted by Law, (a) each Contracting Party hereby waives and releases any and all Actions that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form or a Contracting Party or otherwise impose Liability of a Contracting Party on any Non-Party Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization or otherwise; and (b) each Contracting Party disclaims any reliance upon any Non-Party Affiliates with respect to the performance of this Agreement or any representation or warranty made in, in connection with or as an inducement to this Agreement. The Parties acknowledge and agree that the Non-Party Affiliates are intended third-party beneficiaries of this Section 10.7.

10.8 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable Law in any jurisdiction, such provision will be ineffective only to the extent of such prohibition or invalidity in such jurisdiction, without invalidating the remainder of such provision or the remaining provisions of this Agreement or in any other jurisdiction.

10.9 Construction. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Person. The headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and will in no way restrict or otherwise modify any of the terms or provisions hereof.

10.10 Schedules. The Schedules have been arranged for purposes of convenience in separately numbered sections corresponding to the sections of this Agreement; however, each section of the Schedules will be deemed to incorporate by reference all information disclosed in any other section of the Schedules. Capitalized terms used in the Schedules and not otherwise defined therein have the meanings given to them in this Agreement. The specification of any dollar amount or the inclusion of any item in the representations and warranties contained in this Agreement, the Schedules or the attached exhibits is not intended to imply that the amounts, or higher or lower amounts, or the items so included, or other items, are or are not required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened) or are within or outside of the Ordinary Course, and no Party will use the fact of the setting of the amounts or the fact of the inclusion of any item in this Agreement, the Schedules, Updated Schedules, or exhibits in any dispute or controversy between the Parties as to whether any obligation, item or matter not set forth or included in this Agreement, the Schedules or exhibits is or is not required to be disclosed (including whether the amount or items are required to be disclosed as material or threatened) or are within or outside of the Ordinary Course. In addition, matters reflected in the Schedules are not necessarily limited to matters required by this Agreement to be reflected in the Schedules. Such additional matters are set forth for informational purposes only and do not necessarily include other matters of a similar nature. No information set forth in the Schedules will be deemed to broaden in any way the scope of the


38

parties’ representations and warranties. Any description of any agreement, document, instrument, plan, arrangement or other item set forth on any Schedule is a summary only and is qualified in its entirety by the terms of such agreement, document, instrument, plan, arrangement, or item which terms will be deemed disclosed for all purposes of this Agreement. The information contained in this Agreement, in the Schedules and exhibits hereto is disclosed solely for purposes of this Agreement, and no information contained herein or therein will be deemed to be an admission by any Party to any third party of any matter whatsoever, including any violation of Law or breach of Contract.

10.11 Complete Agreement. This Agreement, together with the Confidentiality Agreement and any other agreements expressly referred to herein or therein, contains the entire agreement of the parties respecting the sale and purchase of the Acquired Assets and the Assumed Liabilities and the transactions contemplated by this Agreement and supersedes all prior agreements among the Parties respecting the sale and purchase of the Acquired Assets and the Assumed Liabilities and the transactions contemplated by this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, the terms and provisions of the execution version of this Agreement will control and prior drafts of this Agreement and the documents referenced herein will not be considered or analyzed for any purpose (including in support of parol evidence proffered by any Person in connection with this Agreement), will be deemed not to provide any evidence as to the meaning of the provisions hereof or the intent of the Parties with respect hereto and will be deemed joint work product of the Parties.

10.12 Specific Performance. The Parties agree that irreparable damage, for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if any of the Parties fails to take any action required of it hereunder to consummate the transactions contemplated by this Agreement. It is accordingly agreed that (a) the Parties will be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 10.13 without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific performance and other equitable relief is an integral part of the transactions contemplated by this Agreement and without that right, neither Sellers nor Purchaser would have entered into this Agreement. The Parties acknowledge and agree that any Party pursuing an injunction or injunctions or other Order to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 10.12 will not be required to provide any bond or other security in connection with any such Order. The remedies available to Sellers pursuant to this Section 10.12 will be in addition to any other remedy to which they were entitled at law or in equity, and the election to pursue an injunction or specific performance will not restrict, impair or otherwise limit any Seller from seeking to collect or collecting damages. If, prior to the Outside Date, any Party brings any action, in each case in accordance with Section 10.12, to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date will automatically be extended (y) for the period during which such action is pending, plus ten (10) Business Days or (z) by such other time period established by the court presiding over such action, as the case may be. In no event will this Section 10.12 be used,


39

alone or together with any other provision of this Agreement, to require any Seller to remedy any breach of any representation or warranty of any Seller made herein.

10.13 Jurisdiction and Exclusive Venue. Each of the Parties irrevocably agrees that any Action that may be based upon, arising out of, or related to this Agreement or the negotiation, execution or performance of this Agreement and the transactions contemplated hereby brought by any other Party or its successors or assigns will be brought and determined only in (a) the Bankruptcy Court and any federal court to which an appeal from the Bankruptcy Court may be validly taken or (b) if the Bankruptcy Court is unwilling or unable to hear such Action, in the Delaware Chancery Court and any state court sitting in the State of Delaware to which an appeal from the Delaware Chancery Court may be validly taken (or, if the Delaware Chancery Court declines to accept jurisdiction over a particular matter, any state or federal court within the state of Delaware) ((a) and (b), the “Chosen Courts”), and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the Chosen Courts for itself and with respect to its property, generally and unconditionally, with regard to any such Action arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the Parties agrees not to commence any Action relating thereto except in the Chosen Courts, other than Actions in any court of competent jurisdiction to enforce any Order, decree or award rendered by any Chosen Court, and no Party will file a motion to dismiss any Action filed in a Chosen Court on any jurisdictional or venue-related grounds, including the doctrine of forum non-conveniens. The Parties irrevocably agree that venue would be proper in any of the Chosen Courts, and hereby irrevocably waive any objection that any such court is an improper or inconvenient forum for the resolution of such Action. Each of the Parties further irrevocably and unconditionally consents to service of process in the manner provided for notices in Section 10.3. Nothing in this Agreement will affect the right of any Party to this agreement to serve process in any other manner permitted by Law.

10.14 Governing Law; Waiver of Jury Trial.

Except to the extent the mandatory provisions of the Bankruptcy Code apply, this Agreement, and any Action that may be based upon, arising out of or related to this Agreement or the negotiation, execution or performance of this Agreement or the transactions contemplated hereby will be governed by and construed in accordance with the internal Laws of the State of Delaware applicable to agreements executed and performed entirely within such State without regards to conflicts of law principles of the State of Delaware or any other jurisdiction that would cause the Laws of any jurisdiction other than the State of Delaware to apply.

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, THE DOCUMENTS AND AGREEMENTS CONTEMPLATED HEREBY AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION BASED ON, ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH OF THE


40

PARTIES AGREES AND CONSENTS THAT ANY SUCH ACTION WILL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE IRREVOCABLE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY (I) CERTIFIES THAT NO ADVISOR OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

10.15 No Right of Set-Off. Purchaser, on its own behalf and on behalf the Purchaser Group and its and their respective successors and permitted assigns, hereby waives any rights of set-off, netting, offset, recoupment, or similar rights that Purchaser, any member of the Purchaser Group or any of its or their respective successors and permitted assigns has or may have with respect to any payments to be made by Purchaser pursuant to this Agreement or any other document or instrument delivered by Purchaser in connection herewith.

10.16 Counterparts and PDF. This Agreement and any other agreements referred to herein or therein, and any amendments hereto or thereto, may be executed in multiple counterparts, any one of which need not contain the signature of more than one party hereto or thereto, but all such counterparts taken together will constitute one and the same instrument. Any counterpart, to the extent signed and delivered by means of a facsimile machine, .PDF or other electronic transmission, will be treated in all manner and respects as an original Contract and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. Minor variations in the form of the signature page to this Agreement or any agreement or instrument contemplated hereby, including footers from earlier versions of this Agreement or any such other document, will be disregarded in determining the effectiveness of such signature. At the request of any party or pursuant to any such Contract, each other party hereto or thereto will re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such Contract will raise the use of a facsimile machine, .PDF or other electronic transmission to deliver a signature or the fact that any signature or Contract was transmitted or communicated through the use of facsimile machine, .PDF or other electronic transmission as a defense to the formation of a Contract and each such party forever waives any such defense.

10.17 Publicity. Neither the Company nor Purchaser shall issue any press release or public announcement concerning this Agreement or the transactions contemplated hereby without obtaining the prior written approval of the other Party, which approval will not be unreasonably withheld or delayed, unless, in the reasonable judgment of Purchaser or the Company, disclosure is otherwise required by applicable Law or by the Bankruptcy Court with respect to filings to be made with the Bankruptcy Court in connection with this Agreement or by the applicable rules of any stock exchange on which Purchaser or the Company lists securities, provided that the Party intending to make such release shall use its best efforts consistent with such applicable Law or Bankruptcy Court requirement to consult with the other Party with respect to the text thereof.


41

10.18 Bulk Sales Laws. The Parties intend that pursuant to section 363(f) of the Bankruptcy Code, the transfer of the Acquired Assets shall be free and clear of any Encumbrances in the Acquired Assets including any liens or claims arising out of the bulk transfer laws except Permitted Encumbrances, and the parties shall take such steps as may be necessary or appropriate to so provide in the Sale Order. In furtherance of the foregoing, each Party hereby waives compliance by the Parties with the “bulk sales,” “bulk transfers” or similar Laws and all other similar Laws in all applicable jurisdictions in respect of the transactions contemplated by this Agreement.

10.19 Fiduciary Obligations. Nothing in this Agreement, or any document related to the transactions contemplated hereby, will require any Seller or any of their respective directors, officers or members, in each case, in their capacity as such, to take any action, or to refrain from taking any action, to the extent inconsistent with their fiduciary obligations. For the avoidance of doubt, Sellers retain the right to pursue any transaction or restructuring strategy that, in Sellers’ business judgment, will maximize the value of their estates.

ARTICLE XI

ADDITIONAL DEFINITIONS AND INTERPRETIVE MATTERS

11.1 Certain Definitions.

“Action” means any Order, action, claim (including a counterclaim, cross-claim, or defense), complaint, grievance, summons, suit, litigation, arbitration, mediation, audit, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination or investigation, of any kind whatsoever, regardless of the legal theory under which such Liability or obligation may be sought to be imposed, whether sounding in Contract or tort, or whether at law or in equity, or otherwise under any legal or equitable theory, commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or arbitrator.

“Advisors” means, with respect to any Person, any directors, officers, employees, investment bankers, financial advisors, accountants, agents, attorneys, consultants, or other representatives of such Person.

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by Contract or otherwise.

“Alternative Transaction” means any transaction (or series of transaction), whether direct or indirect, concerning a sale, merger, acquisition, issuance, financing, recapitalization, reorganization, liquidation or disposition of any Seller or any portion of the equity interests or any material portion of the assets thereof (in any form of transaction, whether by merger, sale of assets or equity or otherwise); provided, however, that the foregoing shall not


42

include (a) sales of inventory in the Ordinary Course, (b) any sale of the Excluded Business, or (c) any sale of solely all or a part of the Excluded Assets, pursuant to inter alia, sections 105, 363 and 365 of the Bankruptcy Code, in accordance with the Bankruptcy Rules.

“Anti-Bribery and Anti-Corruption Law” means, collectively: (a) the U.S. Foreign Corrupt Practices Act (FCPA); (b) the UK Bribery Act 2010; and (c) any other anti-bribery or anticorruption laws, statutes, and regulations applicable to the Business.

“Assumed Taxes” means any Liability for (a) Taxes arising from the ownership or operation of the Business or the Acquired Assets for any taxable period beginning after the Closing Date, (b) all accrued but not yet paid sales tax, use tax, personal property tax, real property tax, employee wage withholding, payroll tax and other ordinary course operational tax liabilities, and (c) any Responsible Person Taxes.

“Auction” has the meaning ascribed to such term in the Bid Procedures Order.

“Bid Procedures Order” means the order of the Bankruptcy Court providing for the sale and notice procedures for, among other things, submitting Qualified Bids and conducting the Auction, a copy of which is attached hereto as Exhibit E.

“Business” means, collectively, (a) Sellers’ ownership and operation of the Business, and (b) Sellers’ operation of a subscription fashion rental service under the “Lord and Taylor” brand and the “Le Tote” brand and the supporting general and administrative functions related to the subscription fashion rental service.

“Business Day” means any day other than a Saturday, Sunday or other day on which banks in New York City, New York are authorized or required by Law to be closed.

“Business Intellectual Property” means all Intellectual Property exclusively used in the Business, including, but not limited to, the Registered Intellectual Property.

“Cash and Cash Equivalents” means all of the Company’s cash (including petty cash and checks received on the Closing Date), checking account balances, marketable securities, certificates of deposits, time deposits, bankers’ acceptances, commercial paper, security entitlements, securities accounts, commodity Contracts, commodity accounts, government securities and any other cash equivalents, whether on hand, in transit, in banks or other financial institutions, or otherwise held.

“Code” means the United States Internal Revenue Code of 1986.

“Confidentiality Agreement” means that certain letter agreement, dated as of August 12, 2020, by and between the Company and Purchaser.

“Consent” means any approval, consent, ratification, permission, waiver or other authorization, or an Order of the Bankruptcy Court that deems or renders unnecessary the same.


43

“Consignment Goods” means those goods owned by a consignor and held by Sellers for sale at a Transferred Store or available for sale through the E-Commerce Platform on a consignment basis.

“Contract” means any written contract, purchase order, service order, sales order, indenture, note, bond, Lease, sublease, mortgage, agreement, guarantee, purchase order, license, collective bargaining agreement, or other agreement that is binding upon a Person or its property.

“COVID-19” means SARS-CoV-2 or COVID-19, any evolutions thereof or related or associated epidemics, pandemics or disease outbreaks and any future epidemics, pandemics or disease outbreaks.

“Documents” means all of the Company’s written files, documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, plans, operating records, safety and environmental reports, data, studies, and documents, Tax Returns, ledgers, journals, title policies, customer lists, regulatory filings, operating data and plans, research material, technical documentation (design specifications, engineering information, test results, maintenance schedules, functional requirements, operating instructions, logic manuals, processes, flow charts, etc.), user documentation (installation guides, user manuals, training materials, release notes, working papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web pages, etc.), and other similar materials, in each case whether or not in electronic form.

“E-Commerce Platform” means Systems operated by Sellers through which Sellers display and/or sell goods or services to consumers who place orders through, any internet-based site owned by a Seller, including the website located at “www.lordandtaylor.com” and the website located and www.letote.com (and similar permutations thereof where such Internet domain names are owned by a Seller) and related internet or mobile application based sales, marketing, and advertising conducted by Sellers and Social Media Accounts owned and operated by Sellers, in each case, other than in connection with the Excluded Business and solely to the extent related to the “Lord and Taylor” brand and the “Le Tote” brand.

“Encumbrance” means any lien (as defined in section 101(37) of the Bankruptcy Code), encumbrance, claim (as defined in section 101(5) of the Bankruptcy Code), charge, mortgage, deed of trust, option, pledge, security interest or similar interests, hypothecations, easements, rights of way, encroachments, Orders and conditional sale or other title retention agreements.

“Environmental Laws” all applicable Laws including any common law cause of action concerning (a) pollution or protection of the environment, or worker health and safety (solely to the extent relating to exposure to Hazardous Substances) or (b) the manufacture, processing, distribution, use, treatment, storage, disposal, transport, handling, release or threatened release of Hazardous Substances.

“Equipment” means any and all equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles and all other fixed assets (other than inventory).

“ERISA” means the Employee Retirement Income Security Act of 1974.


44

“Excluded Business” means all of Sellers’ businesses and operations as conducted by Sellers, other than the Business conducted using the Acquired Assets.

“GAAP” means United States generally accepted accounting principles as in effect from time to time.

“Governmental Authorization” means any permit, license, certificate, approval, consent, permission, clearance, designation, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Law.

“Governmental Body” means any government, quasi governmental entity, or other governmental or regulatory body, agency or political subdivision thereof of any nature, whether foreign, federal, state or local, or any agency, branch, department, official, entity, instrumentality or authority thereof, or any court or arbitrator (public or private) of applicable jurisdiction.

“Hazardous Substance” means any toxic or hazardous material, substance or waste regulated under any Environmental Laws.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations promulgated thereunder.

“Intellectual Property” means all intellectual property rights anywhere in the world arising under or associated with: (a) patents and patent applications; (b) trademarks, service marks, trade dress, trade names, logos, slogans, domain names, and other designations of origin, and all registrations and applications for registration therefor, together with all goodwill associated therewith; (c) copyrights (and any other equivalent rights in works of authorship (including rights in Software as a work of authorship)); (d) trade secrets and industrial secrets, and rights in know-how and other confidential or proprietary business or technical information in each case that derive independent economic value from not being generally known (“Trade Secrets”); (e) rights in domain names, uniform resource locators, social media identifiers and other names and locators associated with Internet addresses and sites, and (f) other similar or equivalent intellectual property rights anywhere in the world.

“Knowledge of the Company”, “Company’s Knowledge,” “Seller’s Knowledge,” “Knowledge of the Sellers” and words of similar import mean the actual knowledge of Ed Kremer, Dan Mickelson, Robert Wehrle and Michael van den Berg.

“Law” means any federal, state, provincial, local, municipal, foreign or international, multinational or other law, statute, legislation, constitution, principle of common law, resolution, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, ruling, directive, pronouncement, determination, decision, opinion or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body.

“Leases” means, individually or collectively as the context may require, all leases, subleases, licenses, concessions and other agreements pursuant to which the Company or its


45

Subsidiary holds a leasehold or subleasehold estate in, or is granted the right to use or occupy, the Transferred Stores.

“Liability” means, as to any Person, any debt, adverse claim, liability (including any liability that results from, relates to or arises out of tort or any other product liability claim), duty, responsibility, obligation, commitment, assessment, cost, expense, loss, expenditure, charge, fee, penalty, fine, contribution, or premium of any kind or nature whatsoever, whether known or unknown, asserted or unasserted, absolute or contingent, direct or indirect, accrued or unaccrued, liquidated or unliquidated, or due or to become due, and regardless of when sustained, incurred or asserted or when the relevant events occurred or circumstances existed.

“Material Adverse Effect” means any event, change, occurrence, or effect (each, an “Effect”) that, individually or in the aggregate with all other Effects, has had, or would reasonably be expected to have, a material adverse effect on (x) the Business or (y) the Acquired Assets and Assumed Liabilities, taken as whole; provided, however, that none of the following, and no Effect arising out of, or resulting from, the following, shall constitute, or be taken into account, individually or in the aggregate, in determining whether or not there has been, a Material Adverse Effect: (a) Effects in, arising from or relating to general business or economic conditions affecting the industry in which the Company and its Subsidiaries operate, (b) Effects in, arising from or relating to national or international political or social conditions, including rioting, domestic disturbance or the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military, cyber or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, asset, Equipment or personnel of the United States, (c) Effects in, arising from or relating to financial, banking, or securities markets (including (i) any disruption of any of the foregoing markets, (ii) any change in currency exchange rates, (iii) any decline or rise in the price of any security, commodity, Contract or index and (iv) any increased cost, or decreased availability, of capital or pricing or terms related to any financing for the transactions contemplated by this Agreement), (d) Effects in, arising from or relating to changes in GAAP, (e) Effects in, arising from or relating to changes in, Laws or other binding directives or determinations issued or made by or agreements with or consents of any Governmental Body, (f) Effects in, arising from or relating to (i) the taking of any action permitted or contemplated by this Agreement or at the request of Purchaser or its Affiliates, (ii) the failure to take any action if such action is prohibited by this Agreement, (iii) Purchaser’s failure to consent to any of the actions restricted in Section 6.1 or (iv) the negotiation, announcement or pendency of this Agreement or the transactions contemplated hereby or the identity, nature or ownership of Purchaser, including the impact thereof on the relationships, contractual or otherwise, of the business of the Company or any of its Subsidiaries with employees, customers, lessors, suppliers, vendors or other commercial partners, (g) Effects in, arising from or relating to any existing event, occurrence, or circumstance with respect to which Purchaser has knowledge as of the date hereof, including any matter set forth in the Schedules, (h) Effects that arise from any seasonal fluctuations in the Business, (i) any failure, in and of itself, to achieve any budgets, projections, forecasts, estimates, plans, predictions, performance metrics or operating statistics or the inputs into such items (whether or not shared with Purchaser or its Affiliates or Advisors) (but, for the avoidance of doubt, not the underlying causes of any such failure to the extent such underlying cause is not otherwise excluded from the definition of Material Adverse Effect), (j) the effect of


46

any action taken by Purchaser or its Affiliates with respect to the transactions completed by this Agreement or the financing thereof or any breach by Purchaser of the Agreement, (k) the matters set forth on the Schedules and any changes or developments in, or effects or results arising from or relating to, matters expressly set forth on the Schedules, (l) (i) the commencement or pendency of the Bankruptcy Case; (ii) any objections in the Bankruptcy Court to (A) this Agreement or any of the transactions contemplated hereby or thereby, (B) the reorganization of Sellers, or (C) the assumption or rejection of any Assigned Contract; and (iii) any Order of the Bankruptcy Court or any actions or omissions of Sellers or their Subsidiaries in compliance therewith, or (m) any fire, flood, hurricane, earthquake, tornado, windstorm, other calamity or act of God, global or national health concern, epidemic, pandemic (whether or not declared as such by any Governmental Body), viral outbreak (including COVID-19), including any Law, directive, pronouncement or guideline issued by a Governmental Body, the Centers for Disease Control and Prevention, the World Health Organization or industry group providing for business closures, “sheltering-in-place”, curfews or other restrictions that relate to, or arise out of, a national health concern, epidemic or pandemic (including COVID-19) or any change in such Law, directive pronouncement or guideline thereof following the date of this Agreement or any material worsening of such conditions threatened or existing as of the date of this Agreement or any quarantine or trade restrictions related thereto or any other force majeure; provided, further, however, that any Effect referred to in clauses (a), (b) or (c) may be taken into account in determining whether or not there has been or may be a Material Adverse Effect to the extent such Effects have a materially disproportionate adverse effect on the Business, taken as a whole, as compared to other participants engaged in the industries and geographies in which Sellers operate the Business.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 3(37) of ERISA.

“Order” means any injunction, order, decree, ruling, writ, assessment or arbitration award of a Governmental Body, including any order entered by the Bankruptcy Court in the Bankruptcy Case (including the Sale Order).

“Ordinary Course” means the ordinary and usual course of operations of the business of the Business, taking into account the commencement and pendency of the Bankruptcy Case and recent past practice in light of COVID-19; provided, that, any action taken, or omitted to be taken, that relates to, or arises out of, COVID-19 shall be deemed to be in the Ordinary Course.

“Permitted Encumbrances” means those Encumbrances on the Acquired Assets as reflected on Schedule 11.1(c), and expressly excluding any pledge, assignment, security interest, hypothecation or other encumbrance granted by the Sellers on the Acquired Assets for the purpose of securing an obligation of the Sellers to a third party lender or service provider to the Sellers.

“Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, labor union, estate, Governmental Body or other entity or group.


47

“Pre-Closing Tax Period” means any Tax period ending on or before the Closing.

“Privacy Laws” means all applicable Laws concerning data protection, privacy, security or other similar applicable Laws.

“Purchaser Group” means Purchaser, any Affiliate of Purchaser and each of their respective former, current or future Affiliates, officers, directors, employees, partners, members, managers, agents, Advisors, successors or permitted assigns.

“Reference Time” means 12:01 a.m. Eastern Time, on the Closing Date.

“Responsible Person Taxes” means, without duplication of, or limiting, Assumed Taxes, any Tax (a) with respect to which liability may be imposed on any current or former employee, board director, or hired professional of Sellers on the basis of any so called “responsible person” statutes, and (b) that cannot ultimately be discharged by Sellers due to the operation of the Bankruptcy Code or a lack of available funds.

“Sale Order” means the order of the Bankruptcy Court to be entered by the Bankruptcy Court pursuant to Sections 363 and 365 of the Bankruptcy Code, which order, amongst other approvals, approves the sale of the Acquired Assets to Purchaser free and clear of all Encumbrances and Liabilities pursuant to Section 363(f) of the Bankruptcy Code other than the Assumed Liabilities as set forth herein.

“SEC” means the U.S. Securities and Exchange Commission.

“Seller Parties” means Sellers and the Company’s Subsidiaries and each of their respective former, current, or future Affiliates, officers, directors, employees, partners, members, equityholders, controlling or controlled Persons, managers, agents, Advisors, successors or permitted assigns.

“Seller Plan” means each (a) “employee benefit plan” within the meaning of Section 3(3) of ERISA, other than any Multiemployer Plan, (b) stock option, stock purchase, stock appreciation right or other equity or equity-based agreement, program or plan, (c) employment, severance, retention or other similar agreement, or (d) bonus, incentive, deferred compensation, profit-sharing, post- termination health or welfare, vacation, severance or termination pay or other material compensation or benefit plan, program, policy, agreement or other arrangement, in each case that is sponsored, maintained or contributed to by the Company or any of its Subsidiaries for the benefit of Business Employees, in all cases, other than any plan or arrangement sponsored or maintained by a Governmental Body.

“Social Media Account” means an account registration with a social media platform, such as Facebook, Instagram, Twitter, Pinterest, Google and the like, and includes handle names.

“Store Cash” means, without duplication, the sum of the aggregate amount of all cash and cash equivalents of the Sellers held in the Transferred Stores.


48

“Straddle Period” means any Tax period beginning on or before, and ending after, the Closing.

“Subsidiary” or “Subsidiaries” means, with respect to any Person, any corporation of which a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof or any partnership, association or other business entity of which a majority of the partnership or other similar ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof.

“Systems” means computers, computer systems, servers, hardware, firmware, middleware, networks, servers, workstations, routers, hubs, switches, data communication equipment and lines, telecommunications equipment and lines, co-location facilities and equipment, and all other information technology equipment and related items of automated or computerized systems, including any outsourced systems and processes (e.g., hosting locations) and all associated documentation.

“Tax” or “Taxes” means any federal, state, local, foreign or other income, gross receipts, capital stock, franchise, profits, withholding, social security, unemployment, disability, real property, ad valorem/personal property, stamp, excise, occupation, sales, use, transfer, value added, import, export, alternative minimum or estimated tax, including any interest, penalty or addition thereto.

“Tax Return” means any return, claim for refund, report, statement or information return relating to Taxes required to be filed with a Governmental Body, including any schedule or attachment thereto, and including any amendments thereof.

“Transferred Facility” means the property situated at 3021 Boeing Way, Stockton, California 95206.

11.2 Index of Defined Terms. Acquired Assets .......................................... 1 Business ...................................................... 1 Agreement ................................................... 1 Allocation .................................................. 29 Allocation Methodology ........................... 29 Assignee Purchaser…………………...….33 Assignment and Assumption Agreement.... 6 Assumed Liabilities .................................... 4 Backup Bidder .......................................... 17 Bankruptcy Case ......................................... 1 Bankruptcy Code ........................................ 1 Bankruptcy Court ........................................ 1 Bankruptcy Rules ........................................ 1

Business Employees.................................. 12 Cash Payment.............................................. 5 Chosen Courts ........................................... 35 Closing ........................................................ 6 Closing Date................................................ 6 Closing Date Payment................................. 5 Company ..................................................... 1 Competition Laws ....................................... 8 Dataroom................................................... 16 Deposit ........................................................ 5 Deposit Escrow Account............................. 5 Enforceability Exceptions ........................... 7 Escrow Agent .............................................. 5


49

Escrow Agreement ...................................... 5 Excluded Assets .......................................... 2 Excluded Liabilities .................................... 4 Express Representations ........................... 16 Information Presentation ........................... 16 Outside Date.............................................. 27 Parties .......................................................... 1 Party ............................................................ 1 Permits ...................................................... 10

Projections................................................. 24 Purchase Price ............................................. 5 Purchaser ..................................................... 1 Registered Intellectual Property ................ 10 Seller ........................................................... 1 Sellers .......................................................... 1 Successful Bidder...................................... 17 Transfer Taxes .......................................... 29

11.3 Rules of Interpretation. Unless otherwise expressly provided in this Agreement,

the following will apply to this Agreement, the Schedules and any other certificate, instrument, agreement or other document contemplated hereby or delivered hereunder.

Accounting terms which are not otherwise defined in this Agreement have the meanings given to them under GAAP consistently applied. To the extent that the definition of an accounting term defined in this Agreement is inconsistent with the meaning of such term under GAAP, the definition set forth in this Agreement will control.

The terms “hereof,” “herein” and “hereunder” and terms of similar import are references to this Agreement as a whole and not to any particular provision of this Agreement. Section, clause, schedule and exhibit references contained in this Agreement are references to sections, clauses, schedules and exhibits in or to this Agreement, unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Where the context permits, the use of the term “or” will be equivalent to the use of the term “and/or.”

The words “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”

When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period will be excluded. If the last day of such period is a day other than a Business Day, the period in question will end on the next succeeding Business Day.

Words denoting any gender will include all genders, including the neutral gender. Where a word is defined herein, references to the singular will include references to the plural and vice versa.


50

The word “will” will be construed to have the same meaning and effect as the word “shall”. The words “shall,” “will,” or “agree(s)” are mandatory, and “may” is permissive.

All references to “$” and dollars will be deemed to refer to United States currency unless otherwise specifically provided.

All references to a day or days will be deemed to refer to a calendar day or calendar days, as applicable, unless otherwise specifically provided.

Any document or item will be deemed “delivered,” “provided” or “made available” by the Company, within the meaning of this Agreement if such document or item (i) is included in the Dataroom, (ii) actually delivered or provided to Purchaser or any of Purchaser’s Advisors or (iii) made available upon request, including at the Company’s or any of its Subsidiaries’ offices.

Any reference to any agreement or Contract will be a reference to such agreement or Contract, as amended, modified, supplemented or waived.

Any reference to any particular Code section or any Law will be interpreted to include any amendment to, revision of or successor to that section or Law regardless of how it is numbered or classified; provided that, for the purposes of the representations and warranties set forth herein, with respect to any violation of or non-compliance with, or alleged violation of or non-compliance, with any Code section or Law, the reference to such Code section or Law means such Code section or Law as in effect at the time of such violation or non-compliance or alleged violation or non-compliance.

All references to a day or days shall be deemed to refer to a calendar day or calendar days, as applicable, unless otherwise specifically provided.

A reference to any Party to this Agreement or any other agreement or document shall include such Party’s successors and permitted assigns.

The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

This Agreement is in the English language, and while this Agreement may be translated into other languages, the English language version shall control. All notices, demands, requests and other documents or communications under or in connection with this Agreement will be in English or will be accompanied by a certified English translation (in which case the English version will prevail in the event of a conflict except to the extent the communication contains or consists of an official document issued by a Governmental Body in a language other than English).

[Signature page(s) follow.]


Signature Page to Asset Purchase Agreement

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by

their respective duly authorized officers as of the date first above written.

SAADIA GROUP LLC

By: _________________________________

Name:

Title:

__________ ____________________________________

Arvee Claravall

CFO


Signature Page to Asset Purchase Agreement

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by

their respective duly authorized officers as of the date first above written.

LE TOTE, INC.

By: _________________________________

Name: Ed Kremer

Title: Chief Restructuring Officer

FRENCH TOTE LLC

By: _________________________________

Name: Ed Kremer

Title: Chief Operating Officer

LORD AND TAYLOR, LLC

By: _________________________________

Name: Ed Kremer


LT CARD COMPANY LLC

By: _________________________________

Name: Ed Kremer


LE TOTE, LLC

By: _________________________________

Name: Ed Kremer


Doc ID: 59d56974c0e824405058cfddbb9a07f56a9c35ef


Exhibit A

Form of Bill of Sale


EXHIBIT A

FINAL FORM

BILL OF SALE

THIS BILL OF SALE (“Bill of Sale”) is made this [ ] day of [ ], 2020 by between Lord &

Taylor LLC (the “Company”, and the Subsidiaries and/or other affiliated companies of the Company that

are indicated on the signature pages attached hereto (each a “Seller” and collectively “Sellers”), and

Saadia Group LLC (“Purchaser”).

W I T N E S S E T H:

WHEREAS, Sellers and Purchaser, entered into that certain Asset Purchase Agreement

dated as of October 16, 2020 (as may be amended, supplemented, restated or modified from time

to time in accordance with its terms, the “Agreement”) with respect to the sale of certain Acquired

Assets identified therein. Any capitalized term used but not otherwise defined herein shall have

the meaning set forth in the Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of

which are hereby acknowledged, Sellers do hereby absolutely and unconditionally give, grant,

bargain, sell, transfer, set over, assign, convey, release, confirm and deliver to Purchaser all of

Sellers’ right, title, and interest, if any, in and up to, the Acquired Assets, without representation

or warranty of any kind whatsoever except as set forth in and subject to the terms of the Agreement.

WITH RESPECT TO ALL MATTERS SOLD, ASSIGNED, TRANSFERRED AND

CONVEYED PURSUANT HERETO, WHETHER TANGIBLE OR INTANGIBLE,

PERSONAL OR REAL, EXCEPT FOR THE SELLERS’ REPRESENTATIONS (ALL OF

WHICH ARE SUBJECT TO ALL TIME, DOLLAR AND OTHER LIMITATIONS ON

SELLERS’ LIABILITY SET FORTH IN THE AGREEMENT), SUCH MATTERS ARE

HEREBY SOLD, ASSIGNED, TRANSFERRED AND CONVEYED TO PURCHASER ON AN

“AS IS”, “WHERE IS”, “WITH ALL FAULTS” BASIS, WITHOUT ANY REPRESENTATION,

WARRANTY, GUARANTY, PROMISE, PROJECTION OR PREDICTION WHATSOEVER

WITH RESPECT TO SUCH MATTERS, WHETHER ORAL OR WRITTEN, EXPRESS OR

IMPLIED, OR ARISING BY OPERATION OF LAW OR UNDER THE UNIFORM

COMMERCIAL CODE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Sellers’ liability hereunder shall be subject to all time, dollar and other limitations on

Sellers’ liability set forth in the Agreement.

This Bill of Sale shall be binding upon and inure to the benefit of the successors and

permitted assigns of Purchaser and Sellers.

This Bill of Sale shall be governed by, interpreted under, and construed and enforceable in

accordance with, the laws of the State of Delaware.

[Signature Page Follows]


[Signature Page to Bill of Sale]

IN WITNESS WHEREOF, the undersigned has executed this Bill of Sale as of the day

and year first written above.

LORD & TAYLOR LLC

By: _________________________________

Name:

Title:

LE TOTE, INC.

By: _________________________________

Name:

Title:

FRENCH TOTE LLC

By: _________________________________

Name:

Title:

LT CARD COMPANY LLC

By: _________________________________

Name:

Title:

LE TOTE, LLC

By: _________________________________

Name:

Title:


[Signature Page to Bill of Sale]

IN WITNESS WHEREOF, the undersigned has executed this Bill of Sale as of the day and

year first written above.

SAADIA GROUP LLC

By: ________________________________

Name:

Title:


Exhibit B

Form of IP Assignment Agreements


EXHIBIT B

FINAL FORM

1

INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT

This INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT (this “Agreement”) is

entered into as of [___], 2020 (the “Effective Date”) by and between Lord & Taylor LLC (the “Company”,

and the Subsidiaries and/or other affiliated companies of the Company that are indicated on the signature

pages attached hereto (each, an “Assignor” and collectively, the “Assignors”), and Saadia Group LLC

(“Assignee”) (each Assignor and Assignee, individually, a “Party” and collectively, the “Parties”).

WHEREAS, pursuant to that certain Asset Purchase Agreement (“Purchase Agreement”), dated as

of October 16, 2020, by and between Lord & Taylor LLC and Le Tote, Inc. (collectively, the “Seller”),

on the one hand, and Saadia Group LLC (the “Purchaser”), on the other hand, Purchaser acquired certain

assets from Seller; and

WHEREAS, in furtherance of the Purchase Agreement, Assignor desires to convey, assign, transfer

and deliver to Assignee, and Assignee desires to acquire, the Assigned IP (as defined below).

NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and other good

and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties

hereto hereby agree as follows:

1. Definitions. Capitalized terms not otherwise defined herein shall have the respective

meanings ascribed to them in the Purchase Agreement. For purposes of this Agreement, the following

terms have the following meanings:

“Assigned IP” means the the Intellectual Property Rights set forth on Schedules A (Patents and

Patent Applications), B (Trademark Registrations and Applications), C (Copyright Registrations),

and D (Internet Domain Names) attached hereto, together with all goodwill associated therewith

and all income, royalties, damages and payments due or payable with respect thereto as of the

Closing or thereafter (including damages and payments for past, present or future infringements,

misappropriations, dilutions, or other violations thereof), the right to sue and recover for past

infringements, misappropriations, dilutions, or other violations thereof as of the Closing, and any

and all corresponding rights that, now or hereafter, may be secured throughout the world.

2. Assignment. Each Assignor hereby irrevocably conveys, assigns, transfers and delivers

and agrees to sell, convey, assign, transfer, and deliver to Assignee such Assignor’s entire right, title, and

interest in and to the Assigned IP. Each Assignor hereby irrevocably waives any “moral rights”, “author’s

special rights” or other rights with respect to attribution of authorship or integrity in relation to the

applicable Assigned IP.

3. Further Assurances. From time to time after the Effective Date, each Assignor shall

execute, acknowledge and deliver such assignments, transfers, consents, assumptions and other documents

and instruments and take such other actions as may be requested by Assignee and at Assignee’s cost and

expense to more effectively sell, assign, convey, deliver or transfer to or vest in Assignee, all Assigned IP,

and to confirm and evidence such sale, assignment, conveyance, transfer or delivery. Each Assignor, upon

Assignee’s request and at Assignee’s cost and expense, shall take all further actions, and provide Assignee

all such cooperation and assistance (including, but not limited to, the execution and delivery of any and all

affidavits, declarations, oaths, powers of attorney and other documentation), to more fully effectuate the

purposes of this Agreement, including, but not limited to, assisting Assignee in preserving or perfecting its

rights in the Assigned IP and the filing of applications for the registration of any Intellectual Property Rights

in the Assigned IP. Should an Assignee opt to take action against any actual or suspected infringers,

diluters, or other violators of any of the Assigned IP, upon Assignee’s request, such Assignor shall join


2

Assignee as a necessary party in any such action (or proceeding related thereto) and to provide Assignee

all cooperation in connection therewith including, but not limited to, by offering testimony and providing

specimens of use.

4. Counterparts; Successors. This Agreement may be executed in one or more counterparts

(including by means of telecopied signature pages), each of which shall be deemed to be an original, but

all of which shall be one and the same document. This Agreement and any signed agreement or instrument

entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in

one or more counterparts (including by means of telecopied signature pages), each of which shall be deemed

an original, but all of which shall constitute one and the same document. This Agreement and all of the

provisions hereof shall be binding on and inure to the benefit of the Parties and their respective successors

and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations

hereunder may be assigned or delegated by a Party without the prior written consent of the other Parties

hereto. Except as otherwise expressly provided herein, nothing expressed or referred to in this Agreement

will be construed to give any person, other than the Parties hereto and such permitted assigns, any legal or

equitable right, remedy, or claim under or with respect to this Agreement or any provision of this

Agreement.

5. Governing Law. ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,

VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS AGREEMENT AND THE

SCHEDULES ATTACHED HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN

ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT

TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE

STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD RESULT IN THE

APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF

DELAWARE.

[Signature Page Follows.]


Signature Page to IP Assignment Agreement

IN WITNESS WHEREOF and, intending to be legally bound hereby, the Parties have

executed this Agreement as of the Effective Date.

ASSIGNORS:

LORD & TAYLOR LLC

Name:

Title:

LE TOTE, INC.

Name:

Title:

FRENCH TOTE LLC

Name:

Title:

LT CARD COMPANY LLC

Name:

Title:

LE TOTE, LLC

Name:

Title:


Signature Page to IP Assignment Agreement

ASSIGNEE:

SAADIA GROUP LLC

Name:

Title:


SCHEDULE A

PATENTS AND PATENT APPLICATIONS

[To Come.]


5

SCHEDULE B

TRADEMARK REGISTRATIONS AND APPLICATIONS

[To Come.]


SCHEDULE C

COPYRIGHT REGISTRATIONS

[To Come.]


SCHEDULE D

INTERNET DOMAIN NAME REGISTRATIONS

[To Come.]


Exhibit C

Form of Assignment and Assumption Agreement


EXHIBIT C

FINAL FORM

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”), effective [ ],

2020 (“Effective Date”), is entered into by Lord & Taylor LLC (the “Company”, and the

Subsidiaries and/or other affiliated companies of the Company that are indicated on the signature

pages attached hereto (collectively, the “Assignors”) and Saadia Group LLC, a New York Limited

Liability Company (“Assignee”).

WHEREAS, Lord & Taylor LLC, a Delaware Limited Liability Company (the “Parent”),

Assignor, together with its subsidiaries (collectively, the “Sellers”) and Assignee are parties to that

certain Asset Purchase Agreement dated October 16, 2020 (as may be amended, supplemented,

restated or modified from time to time in accordance with its terms, the “Purchase Agreement”);

WHEREAS, subject to the terms and the conditions of the Purchase Agreement, Assignee

shall purchase from Assignors, and Assignors shall sell, convey, assign, transfer and deliver to

Assignee, all of the Acquired Assets together with the Assumed Liabilities, in a sale authorized by

the Bankruptcy Court pursuant to, inter alia, sections 105, 363 and 365 of the Bankruptcy Code, in

accordance with the other applicable provisions of the Bankruptcy Code and the Federal Rules of

Bankruptcy Procedure and the local rules for the Bankruptcy Court (the “Bankruptcy Rules”), all

on the terms and subject to the conditions set forth in this Agreement and subject to entry of the

Sale Order; and

WHEREAS, any term which is capitalized in this Agreement, but not otherwise defined

herein, shall have the meaning attributed to it in the Purchase Agreement.

NOW, THEREFORE, in exchange for the mutual covenants and premises set forth in the

Purchase Agreement, and for other good and valuable consideration, the receipt and adequacy of

which are hereby acknowledged:

1. Pursuant to the Bankruptcy Rules, on the terms and subject to the conditions set forth in

the Purchase Agreement and in the Sale Order, (a) Assignors hereby sell, transfer, assign, convey,

and deliver to the Assignee, the Acquired Assets to the Assignee, all of Assignors’ right, title and

interest in the Acquired Assets, and, (b) Assignee hereby accepts the Acquired Assets from

Assignors.

2. Pursuant to the Bankruptcy Rules, on the terms and subject to the conditions set forth in

the Purchase Agreement and in the Sale Order, Assignee shall irrevocably assume from Assignors

(and from and after the date hereof pay, perform, discharge, or otherwise satisfy in accordance with

their respective terms), and Assignors shall irrevocably convey, transfer, and assign to Assignee,

the Assumed Liabilities.

3. This Agreement is in all respects subject to the provisions of the Purchase Agreement, is

not intended in any way to supersede, limit, qualify, or expand any provision of the Purchase

Agreement and to the extent of any conflict between the terms of this Agreement and the terms of

the Purchase Agreement, the terms of the Purchase Agreement shall prevail. Assignors and

Assignee hereby recognize and confirm that their execution of this Agreement shall not discharge

or otherwise modify the rights and obligations of Assignors or Assignee under the Purchase

Agreement and not reflected herein.

4. Contemporaneously with the execution and delivery of this Agreement, the parties may be

further executing and delivering certain assignments and other instruments of transfer which cover


EXHIBIT C

FINAL FORM

certain of the Acquired Assets or the Assumed Liabilities, the purpose of which is to supplement,

facilitate, and otherwise implement the assignments and assumptions intended hereby. At any time

and from time to time hereafter, at any party’s request, the other parties shall take any and all steps

and shall execute, acknowledge, and deliver any and all future instruments and assurances

necessary or reasonably requested in order to more fully carry out the purposes of this Agreement.

5. Further Assurances. From time to time after the Effective Date, each Assignor shall

execute, acknowledge and deliver such assignments, transfers, consents, assumptions and other

documents and instruments and take such other actions as may be requested by Assignee and at

Assignee’s cost and expense to more effectively sell, assign, convey, deliver or transfer to or vest

in Assignee, all Acquired Assets, and to confirm and evidence such sale, assignment, conveyance,

transfer or delivery. Each Assignor, upon Assignee’s request and at Assignee’s cost and expense,

shall take all further actions, and provide Assignee all such cooperation and assistance (including,

but not limited to, the execution and delivery of any and all affidavits, declarations, oaths, powers

of attorney and other documentation), to more fully effectuate the purposes of this Agreement.

6. Miscellaneous. The provisions of Section 10.4 (Binding Effect; Assignment), Section 10.5

(Amendment and Waiver), Section 10.6 (Third Party Beneficiaries), Section 10.8 (Severability),

Section 10.9 (Construction), Section 10.11 (Complete Agreement), Section 10.13 (Jurisdiction and

Exclusive Venue), Section 10.14 (Governing Law; Waiver of Jury Trial) and Section 10.16

(Counterparts and PDF) of the Purchase Agreement are hereby incorporated into, and shall apply

to, this Agreement, mutatis mutandis.

[Signature Page Follows]


[Signature Page to Assignment and Assumption Agreement]

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and

delivered by their duly authorized representatives, fully intending to be bound hereby.

ASSIGNORS ASSIGNEE

LORD & TAYLOR LLC SAADIA GROUP LLC

By: By:

LE TOTE, INC.

By:

FRENCH TOTE LLC

By:

LT CARD COMPANY LLC

By:

LE TOTE, LLC

By:


Exhibit D

Form of Escrow Agreement


Confidential

ESCROW AGREEMENT

This ESCROW AGREEMENT (this “Agreement”) is entered into as of October 16, 2020, by and among (i) Saadia Group LLC, a New York limited liability company (“Purchaser”), (ii) Le Tote, Inc., a Delaware corporation (“Le Tote”), Lord & Taylor LLC, a Delaware limited liability company (“Lord and Taylor” and together with Le Tote, the “Company”), and all of the Subsidiaries of the Company that are indicated on the signature pages attached hereto (together with the Company, each a “Seller” and collectively the “Sellers”), and (iii) Citibank, N.A. (“Escrow Agent”). Purchaser and Sellers are referred to herein individually as a “Party” and collectively as the “Parties.”

WHEREAS, on August 2, 2020, the Company and the other Sellers filed voluntary for relief under chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”), in the United States Bankruptcy Court for the Eastern District of Virginia (Richmond Division) (the “Bankruptcy Court”), which chapter 11 cases are jointly administered for procedural purposes (collectively, the “Bankruptcy Case”);

WHEREAS, in connection with the Bidding Procedures Order, Purchaser and Sellers are contemporaneously entering into that certain Asset Purchase Agreement dated as of October 16, 2020 (as amended, supplemented, restated or modified from time to time in accordance with its terms, the “Purchase Agreement”);

WHEREAS, pursuant to (i) the Purchase Agreement and (ii) the Bidding Procedures Order, Purchaser and Sellers are establishing an escrow arrangement for the purposes set forth therein;

WHEREAS, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement; provided however, the Escrow Agent will not be responsible to determine or to make any inquiry into any term, capitalized or otherwise, not defined herein;

WHEREAS, the Purchase Agreement contemplates that, on or prior to the date of the Purchase Agreement, Purchaser shall deposit with the Escrow Agent, an earnest money deposit in the amount equal to $1,200,000.00, by wire transfer of immediately available funds (the “Escrow Amount”, which, together with all products and proceeds of, including all interest, dividends, distributions, gains or other income earned thereon or in respect thereof, if any (the “Escrow Earnings”), shall be referred to herein as the “Escrow Funds”) into the Escrow Account (as defined below). The Escrow Amount shall include the amount of $391,875.00 that was previously deposited with the Escrow Agent on October 13, 2020; and

WHEREAS, the Parties desire that Escrow Agent shall agree to hold and distribute the Escrow Funds in accordance with the terms and conditions of this Agreement, until all Escrow Funds held hereunder have been released in accordance with the terms and conditions of this Agreement and, as between Purchaser and Sellers, the Purchase Agreement.

NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, each of Purchaser, Sellers and Escrow Agent hereby agree as follows:


2

1. Appointment. The Parties hereby appoint and designate Escrow Agent to acquire and maintain possession of the Escrow Funds and to act as their escrow agent for the purposes set forth herein, and Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein and agrees to assume and perform its duties and obligations pursuant to the terms and conditions set forth herein. Escrow Agent shall hold the Escrow Funds in accordance with, and shall not disburse or release any of the Escrow Funds except in accordance with, the terms and conditions set forth in this Agreement.

2. Escrow Funds.

(a) On or prior to the execution of the Purchase Agreement, in accordance with the terms of the Purchase Agreement, Purchaser shall immediately deposit, or cause to be deposited with Escrow Agent, the Escrow Amount, to be held by Escrow Agent in a separated, distinct and non-commingled escrow account established by Escrow Agent (the “Escrow Account”). Escrow Agent agrees to keep the Escrow Account separate from all other property held by Escrow Agent and the Escrow Account shall be identified as being held in connection with this Agreement. Escrow Agent shall acknowledge in writing to Purchaser and Sellers receipt of the Escrow Amount from Purchaser upon the date of receipt. As agreed by the parties, the Escrow Funds shall (i) not be subject to set off by Escrow Agent or any of its affiliates, (ii) not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto and (iii) be held and disbursed solely for the purposes and in accordance with the terms of this Agreement, except as otherwise provided in Section 10 below.

(b) For the avoidance of doubt, all Escrow Earnings on the Escrow Amount shall (i) be retained by Escrow Agent, (ii) be reinvested in the Escrow Funds in the Escrow Account, (iii) become part of the Escrow Funds, and (iv) be disbursed as part of the Escrow Funds in accordance with the terms and conditions of this Agreement.

3. Investment of Escrow Funds.

(a) The Escrow Agent shall invest the Escrow Funds in an interest-bearing deposit obligation of Citibank N.A. insured by the Federal Deposit Insurance Corporation (“FDIC”) to the applicable limits. The Escrow Funds shall at all times remain available for distribution in accordance with Section 4 below.

(b) The Escrow Agent shall prepare and send an account statement to each Party on a monthly basis reflecting activity in the Escrow Account for the preceding month.

(c) The Escrow Agent shall have no responsibility for any investment losses resulting from the investment, reinvestment or liquidation of the escrowed property, as applicable, provided that the Escrow Agent has made such investment, reinvestment or liquidation of the escrowed property in accordance with the terms, and subject to the conditions, of this Agreement. The Escrow Agent does not have a duty nor will it undertake any duty to provide investment advice.

4. Disposition. Purchaser and Sellers shall act in accordance with, and Escrow Agent shall hold and release the Escrow Funds as provided in, this Section 4 as follows:


2

(a) Joint Direction, Release Order or Automatic Release Direction. As promptly as practicable, and in any event within two (2) Business Days, following the date on which Escrow Agent receives (i) a Joint Direction (as defined below), (ii) a Release Order (as defined below) or (iii) an Automatic Release Direction (as defined below), in each case, with respect to a disbursement from the Escrow Account, then Escrow Agent shall, to the extent directed by such Joint Direction, Release Order or Automatic Release Direction, disburse all or part of the Escrow Amount, together with the Escrow Earnings (if any) related thereto, in accordance with such Joint Direction, Release Order or Automatic Release Direction (as applicable) to the Persons and accounts specified in the Joint Direction, Release Order or Automatic Release Direction (as applicable).

(b) Method of Payment. All payments of any part of the Escrow Funds shall be made by wire transfer of immediately available funds to one or more accounts as designated in advance by Purchaser or Sellers, as applicable, or as set forth in the Joint Direction or a Release Order, as applicable.

(c) Security Procedures for Fund Transfers. Escrow Agent shall confirm each funds transfer instruction received in the name of Purchaser or Sellers by means of a call back to an Authorized Representative for such Party and communicated to Escrow Agent through a signed certificate in the form of Schedule 1-A or Schedule 1-B, as applicable, attached hereto, which upon receipt by Escrow Agent shall become a part of this Agreement. Once delivered to Escrow Agent, Schedule 1-A or Schedule 1-B, as applicable, may be revised or rescinded only by a writing signed by one of the designated persons as set forth in Schedule 1-A or Schedule 1-B, as applicable (each an “Authorized Representative”), of the Party. Such revisions or rescissions shall be effective only after actual receipt and following such period of time as may be necessary to afford Escrow Agent a reasonable opportunity to act on it. If a revised Schedule 1-A or Schedule 1-B, as applicable, or a rescission of an existing Schedule 1-A or Schedule 1-B, as applicable, is delivered to Escrow Agent by an entity that is a successor-in-interest to such Party, such document shall be accompanied by additional documentation satisfactory to Escrow Agent showing that such entity has succeeded to the rights and responsibilities of the Party under this Agreement. The Parties understand that Escrow Agent’s inability to receive or confirm funds transfer instructions by means of a call back to such Party may result in a delay in accomplishing such funds transfer, and agree that Escrow Agent shall not be liable for any loss caused by any such delay. Escrow Agent shall not be liable to any Party or other person for refraining from acting upon any instruction for or related to the transfer or distribution of the Escrow Funds if delivered to any other electronic mail (“email”) address of the Escrow Agent not set forth in Section 9, including but not limited to a valid email address of any employee of Escrow Agent.

(d) Certain Definitions. As used herein, the following terms shall have the following definitions:

“Automatic Release Direction” means that a written instruction made by Sellers, substantially in the form attached hereto as Schedule 4, signed by an Authorized Representative of Sellers. The Escrow Agent will act on such Automatic Release Direction without further inquiry.


2

“Business Day” means any day on which banks are open for business in New York, New York (excluding Saturdays, Sundays, and public holidays).

“Joint Direction” means a joint written instruction made by Purchaser and Sellers, substantially in the form attached hereto as Schedule 3, signed by an Authorized Representative of each of Purchaser and Sellers.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental authority or any department, agency or political subdivision thereof.

“Release Order” means a final non-appealable order of the Bankruptcy Court that may be issued ordering Escrow Agent to distribute all or any portion of the Escrow Funds or determining the rights of the Parties with respect to the Escrow Funds, together with (A) a certificate, substantially in the form attached hereto as Schedule 5, signed by an Authorized Representative of the prevailing Party (as between Purchaser and Sellers) to the effect that such judgment is final and non-appealable and the Bankruptcy Court having proper authority and (B) the written payment instructions of the prevailing Party.

5. Escrow Agent. Escrow Agent hereby agrees and covenants with Purchaser and Sellers that it shall perform all of its obligations under this Agreement and shall not deliver custody or possession of any of the Escrow Funds to anyone, except pursuant to the express terms of this Agreement or as otherwise required by applicable law. Escrow Agent hereby undertakes to perform only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duties, shall be implied, other than the implied duty of good faith and fair dealing. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Escrow Agent may rely upon, and shall not be liable, for acting in accordance with any Automatic Release, Joint Direction or Release Order delivered to it by any Party in accordance with Section 9 and reasonably believed by Escrow Agent to be genuine and to have been signed by an Authorized Representative(s), as applicable, provided that Escrow Agent has fulfilled its obligations under Section 4(c) to confirm any funds transfer instruction received in the name of Purchaser or Sellers. Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such Automatic Release, Joint Direction or Release Order. Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence or willful misconduct was the cause of any direct loss to either Party. Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through any of its affiliates or agents, provided however that no such delegation of powers or duties will release Escrow Agent from any of its obligations under this Agreement. In the event that Escrow Agent is uncertain as to its duties or rights hereunder or receives instructions, claims or demands from any Party that conflict with the provisions of this Agreement or conflicting instructions from the Parties, Escrow Agent shall promptly notify the Parties of such uncertainty or apparent conflict and, following delivery of such notice and until such time as the Parties deliver revised instructions to Escrow Agent, Escrow Agent shall be entitled to refrain from taking any action and shall not be liable for refraining to


2

take any action, and its sole obligation shall be to keep safely all property held in escrow until Escrow Agent shall be directed otherwise in an Automatic Release, Joint Direction or Release Order. Escrow Agent shall have no duty to solicit any payments that may be due to it or the Escrow Account, including, without limitation, the Escrow Amount, nor shall Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving Escrow Agent) without making Escrow Agent a party to the same. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF ESCROW AGENT HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. Escrow Agent shall not be responsible for or under, or chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document executed between/among the parties hereto, except as may be specifically provided in this Agreement or in any Automatic Release, Joint Direction or Release Order delivered to Escrow Agent hereunder. This Agreement sets forth all of the obligations of Escrow Agent, and no additional obligations shall be implied from the terms of this Agreement or any other agreement, instrument or document.

6. Resignation and Removal; Succession. The Parties, acting jointly, may remove Escrow Agent at any time, with or without cause, by giving to Escrow Agent fifteen (15) calendar days’ advance notice in writing of such removal signed by an Authorized Representative of each Party. Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving thirty (30) calendar days’ advance notice in writing of such resignation to the Parties. Escrow Agent’s sole responsibility after such fifteen (15) or thirty (30)-day notice period (as applicable) expires, in the case of either removal or resignation, shall be to hold and safeguard the Escrow Funds (without any obligation to reinvest the same) and to deliver the same (a) to a designated substitute escrow agent, if any, appointed jointly by the Parties, as set forth in a Joint Direction, (b) to such other Person jointly designated in writing by the Parties, or (c) in accordance with the directions of a final court order, at which time of delivery, Escrow Agent’s obligations hereunder shall cease and terminate, except for any liability of the Escrow Agent arising out of its fraud, gross negligence or willful misconduct. If prior to the expiration of the fifteen (15) or thirty (30)-day notice period (as applicable), the Parties have failed to appoint a successor escrow agent, or to instruct Escrow Agent in writing to deliver the Escrow Funds to another Person as provided above, at any time on or after the expiration of the fifteen (15) or thirty (30)-day notice period (as applicable), Escrow Agent may petition any court of competent jurisdiction for the appointment of such a successor escrow agent or for other appropriate relief, and any such resulting appointment shall be binding upon all of the Parties. Escrow Agent shall deliver the Escrow Funds to any appointed successor escrow agent, at which time Escrow Agent’s obligations under this Agreement shall cease and terminate, except for any liability incurred prior to delivery of the Escrow Funds. Any entity into which Escrow Agent may be merged or converted or with which it may be consolidated, or any entity to which all or substantially all the escrow business of Escrow Agent may be transferred, shall be Escrow Agent under this Agreement without further act; provided, that Escrow Agent shall use commercially reasonable efforts to provide the Parties with notice in


2

writing of any such merger, conversion or consolidation within a reasonable period of time either prior to or following the consummation thereof.

7. Compensation. The Escrow Agent acknowledges and agrees that the fees and expenses described in Schedule 2 attached hereto are intended as full compensation for the Escrow Agent’s services as contemplated by this Agreement and the Purchaser agrees to pay to Escrow Agent such fees and expenses upon execution of this Agreement.

8. Indemnification and Reimbursement. The Parties shall jointly and severally indemnify, defend and hold harmless Escrow Agent from and against any and all losses, damages, liabilities and reasonable and documented out-of-pocket costs or expenses (including, without limitation, the reasonable and documented out-of-pocket fees and reasonable and documented out-of-pocket expenses of outside counsel) (collectively, “Losses”), arising out of or in connection with (a) Escrow Agent’s performance of this Agreement, except to the extent that such Losses are determined by a court of competent jurisdiction through a final order to have been caused by the fraud, gross negligence, or willful misconduct of the Escrow Agent, and (b) Escrow Agent’s following any instructions or other directions from the Parties (including, for the avoidance of doubt, any Automatic Release or any instructions or other directions set forth in a Joint Direction or Release Order) received in accordance with this Agreement. Notwithstanding anything to the contrary herein, each of Purchaser and Sellers hereby agree between themselves that any obligation for indemnification under this Section 8 shall be borne by Purchaser or Sellers, as determined by a court of competent jurisdiction to be responsible for causing the Losses, fees or expenses against which Escrow Agent is entitled to indemnification or payment or, if no such determination is made, then to each pay fifty percent (50%) of any such indemnification claims or payments. The provisions set forth in this Section 8 shall survive the resignation, replacement or removal of Escrow Agent or the termination of this Agreement.

9. Tax Matters.

(a) The Parties agree that, solely for U.S. federal and state income tax reporting purposes, any interest or income earned on the Escrow Funds shall be treated as income of Purchaser for U.S. federal (and applicable state and local) income tax purposes and shall be reported on an annual basis by the Escrow Agent on the appropriate IRS Form 1099 (or IRS Form 1042-S), as required by the Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder. Prior to the date hereof, the Parties shall provide the Escrow Agent with appropriate completed and executed IRS Forms W-9 or W-8, as applicable, and such other forms and documents that the Escrow Agent may reasonably request that are required to be provided under applicable law in connection with the Escrow Agent's tax reporting obligations under the Code and regulations thereunder.

(b) The Escrow Agent shall report to the Internal Revenue Service with respect to income earned on the Escrow Funds. The Escrow Agent shall withhold any taxes required to be withheld by applicable law with respect to the Escrow Agent's tax reporting obligations under the Code and the Foreign Account Tax Compliance Act including but not limited to required withholding in the event any Party fails to provide an IRS Form W-9 or W-8 or other form or document described in paragraph (a), above, and shall timely remit such taxes to the appropriate authorities.


2

10. Notices. All communications hereunder shall be in writing or set forth in a PDF attached to an email, and all instructions from a Party or the Parties to Escrow Agent shall be executed by an Authorized Representative of such Party or Parties, and shall be deemed to have been delivered in accordance with the terms of this Agreement (a) on the day of delivery by email, if delivered by email prior to 5:00 p.m. New York City time (and otherwise on the first Business Day thereafter) or (b) when actually delivered, if delivered by hand, by certified mail return receipt requested, or by courier or express delivery service (with receipt showing signature or similar confirmation) to the appropriate email address or notice address set forth for each party hereto as follows:

if to Purchaser,

Saadia Group LLC 1 West 34th Street, 10th Floor New York, New York 10001 Attention: Arvee Claravall Email: [email protected] with a copy to (which shall not constitute notice):

Armstrong & Teasdale LLP 919 Third Avenue, 37th Floor New York, New York 10022 Attn: Jeffery D. Dayon, Esq. Email: [email protected] and

Robinson & Cole LLP 1201 N. Market Street, Suite 1406 Wilmington, Delaware 19801 Attn: Jamie L. Edmonson, Esq Email: [email protected]

if to the Sellers

Le Tote, Inc. 250 Vesey Street, 22nd Floor New York, New York 10281 Attention: Michael van den Berg Email: [email protected]

with a copy (which shall not constitute notice to the Sellers) to:

Kirkland & Ellis LLP 300 North LaSalle Street Chicago, Illinois 60654 Attention: David Eaton Email: [email protected]


2

Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10022 Attention: Marshall Shaffer Jonathan Davis, P.C. Email: [email protected] [email protected]

Kirkland & Ellis LLP 200 Clarendon Street Boston, Massachusetts 02116 Attention: Christian Atwood, P.C. Email: [email protected]

If to Escrow Agent,

Citibank, N.A. Citi Private Bank 388 Greenwich Street, 29th Floor New York, NY 10013 Attention: Debbie DeMarco Email: [email protected]

Any party hereto may provide notice in accordance with this Section 9 of any change of the notice information in this Section 9.

11. Compliance with Court Orders. In the event that any of the Escrow Amount shall be attached, garnished, levied upon, or otherwise be subject to any final court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court affecting the property deposited under this Agreement, Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all such final orders so entered or issued, which it is advised in writing by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction, provided that Escrow Agent shall provide a written notice thereof to the Parties as soon as reasonably practicable, and in the event that Escrow Agent obeys or complies with any such order it shall not be liable to any of the Parties or to any other Person by reason of such compliance notwithstanding such order be subsequently reversed, modified, annulled, set aside or vacated.

12. Miscellaneous.

(a) The provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by Escrow Agent and each of the Parties. No waiver of any provision of this Agreement will be valid unless the waiver is in writing and signed by the waiving parties. The failure of a party hereto at any time to require performance of any provision of this Agreement will not affect such party’s rights at a later time to enforce such provision. No waiver by any party hereto of any breach of this Agreement will be deemed to extend to any other breach hereunder or affect in any way any rights arising by virtue of any other breach.


2

(b) Purchaser and Sellers may assign any right or interest hereunder, but not any obligation, to the same extent they are permitted to assign their rights and interests under the Purchase Agreement. No assignment of the interest of either Party shall be binding on Escrow Agent unless and until written notice of such assignment is filed with and acknowledged in writing by Escrow Agent. To comply with Federal law including USA PATRIOT Act (as defined below) requirements, assignees shall provide to Escrow Agent the appropriate form W-9 or W-8 (as applicable) and such other forms and documentation that Escrow Agent may request to verify identification and authorization to act.

(c) Each of the Parties and Escrow Agent irrevocably and unconditionally submits to the exclusive jurisdiction of (i) the Bankruptcy Court and any federal court to which an appeal from the Bankruptcy Court may be validly taken or, (b) if the Bankruptcy Court is unwilling or unable to hear such Action, in the Delaware Chancery Court and any state court sitting in the State of Delaware to which an appeal from the Delaware Chancery Court may be validly taken (or, if the Delaware Chancery Court declines to accept jurisdiction over a particular matter, any state or federal court within the state of Delaware) ((a) and (b), the “Chosen Courts”) in any litigation arising out of or relating to this Agreement and agrees that all claims in respect of such litigation may be heard and determined in any such court. This Agreement shall be governed by and construed under the laws of the State of Delaware. Each Party and the Escrow Agent also agrees not to (a) attempt to deny or defeat such exclusive jurisdiction by motion or other request for leave from the Chosen Courts or (b) bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the Parties and Escrow Agent irrevocably and unconditionally waives any objection to the laying of venue in, and any defense of inconvenient forum to the maintenance of, any litigation so brought and waives any bond, surety or other security that might be required of any other Party or Escrow Agent with respect thereto. Any Party or Escrow Agent may make service on any other Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 9; provided, however, that nothing in this Section 11(d) shall affect the right of any Party or Escrow Agent to serve legal process in any other manner permitted by law or in equity. Each Party and Escrow Agent agrees that a final judgment in any litigation so brought shall be conclusive and may be enforced by litigation or in any other manner provided by law or in equity. The Parties and Escrow Agent intend that all foreign jurisdictions will enforce any decree of the Bankruptcy Court in any litigation arising out of or relating to this Agreement.

(d) Neither Party nor Escrow Agent shall be liable to any other party hereto for Losses due to, or for any delay in performance of its obligations under the terms of this Agreement because of, acts of God, fire, war, terrorism, floods, pandemic, electrical outages or unavailability of Federal Reserve Bank wire services, or other causes reasonably beyond its control; it being understood that Escrow Agent shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances.

(e) This Agreement and any Joint Direction from the Parties may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument or instruction, as applicable. All signatures of the parties to this Agreement and in any Joint Direction or other instruction, instrument or notice delivered hereunder may be transmitted by PDF attached to an email, and such transmission will,


2

for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party.

(f) If any provision of this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be revised as mutually agreed by the parties hereto so as to as nearly as possible reflect the intent of the parties hereto without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.

(g) Nothing in this Agreement, whether express or implied, shall be construed to give to any Person or entity other than Escrow Agent and the Parties any legal or equitable right, remedy, interest or claim under or in respect of the Escrow Funds or this Agreement.

(h) The Parties acknowledge that the Escrow Funds are not and shall not be subject to any lien, security interest or encumbrance of any kind.

(i) EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE RESPECTING ANY MATTER ARISING UNDER THIS AGREEMENT.

(j) No publicly distributed printed or other material in any language, including prospectuses, notices, reports, and promotional material which mentions “Citibank” by name, or the rights, powers, or duties of Escrow Agent under this Agreement, shall be issued by the Parties, or on their behalf, without the prior written consent of Escrow Agent, except to the extent such disclosure is required by applicable law.

(k) This Agreement shall constitute the entire agreement among the parties hereto with respect to the subject matter of this Agreement and supersede all prior agreements (whether written or oral and whether express or implied) by or among the parties hereto to the extent related to the subject matter of this Agreement. The terms and conditions of this Agreement will control the actions, duties, and obligations of Escrow Agent. To the extent there is a conflict between the terms and provisions of this Agreement and the Purchase Agreement, (i) as between the Parties, the terms and provisions of the Purchase Agreement will control and (ii) to the extent governing the actions of Escrow Agent, the terms and conditions of this Agreement shall control.

(l) The Parties hereby acknowledge that, in order to help fight the funding of terrorism and money laundering activities, Federal law may require certain financial institutions to obtain, verify and record information that identifies each person or corporation who opens an account and/or enters into a business relationship. The Parties hereby agree that they shall provide the Escrow Agent with such information as the Escrow Agent may reasonably request in order to comply with applicable anti-money laundering rules and regulations, including each Party’s name, physical address, tax identification number and other information that is reasonably required to assist the Escrow Agent in identifying and verifying each Party’s identity in order to comply with


2

applicable anti-money launder rules and regulations, such as organizational documents, certificates of good standing, licenses to do business or other pertinent identifying information.

(m) Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires Escrow Agent to implement reasonable procedures to verify the identity of any Person that opens a new account with it. Accordingly, the Parties acknowledge that Section 326 of the USA PATRIOT Act and Escrow Agent’s internal policies require Escrow Agent to follow reasonable procedures to verify the identity of the Parties, including, without limitation, each Parties’ name, address and organizational documents (“identifying information”). The Parties agree to provide Escrow Agent with and consent to Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by Escrow Agent in connection with the transactions contemplated hereby.

13. Construction. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Person. The headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and will in no way restrict or otherwise modify any of the terms or provisions hereof.

[Signature Pages Follow]


[SIGNATURE PAGE TO ESCROW AGREEMENT]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.

SAADIA GROUP LLC

By: Name: Title:



LE TOTE, INC.

By: Name: Title:

FRENCH TOTE LLC

By: Name: Title:

LORD & TAYLOR LLC

By: Name: Title:

LT CARD COMPANY LLC

By: Name: Title:

LE TOTE LLC

By: Name: Title:



CITIBANK, N.A.

By: Name: Title:


[SCHEDULE 1-A TO ESCROW AGREEMENT]

SCHEDULE 1-A

SCHEDULE OF PURCHASER’S AUTHORIZED REPRESENTATIVES

Telephone Numbers and Authorized Signatures for Person(s) Designated to Give Joint Directions and Confirm Funds Transfer Instructions

The specimen signatures shown below are the specimen signatures of the individuals who have

been designated as an Authorized Representative of Purchaser, and are authorized to initiate and approve transactions for the Escrow Account established under this Agreement on behalf of Purchaser. The below listed Persons have also been designated as contacts for confirmation of funds transfer instructions as provided for in Section 4(c) to this Agreement, and may be contacted by Escrow Agent prior to the release of any or all of the Escrow Amount from the Escrow Account.

Name

Business/Cellphone Telephone Numbers

Signature

All instructions, including but not limited to funds transfer instructions, must include the signature of at least one Authorized Representative authorizing said funds transfer on behalf of each Party.


[SCHEDULE 1-B TO ESCROW AGREEMENT]

SCHEDULE 1-B

SCHEDULE OF THE SELLERS’ AUTHORIZED REPRESENTATIVES

Telephone Numbers and Authorized Signatures for Person(s) Designated to Give Joint Directions and Confirm Funds Transfer Instructions

The specimen signatures shown below are the specimen signatures of the individuals who have been designated as Authorized Representatives of the Sellers, and are authorized to initiate and approve transactions for the Escrow Account established under this Agreement on behalf of the Sellers. The below listed Persons have also been designated as contacts for confirmation of funds transfer instructions as provided for in Section 4(c) to this Agreement, and may be contacted by Escrow Agent prior to the release of the Escrow Amount from the Escrow Account.

Name Business/Cellphone Telephone Numbers

Signature

1. Ed Kremer

2. Michael O. van den Berg

All instructions, including but not limited to funds transfer instructions, must include the signature of at least one Authorized Representative authorizing said funds transfer on behalf of each Party.


[SCHEDULE 2 TO ESCROW AGREEMENT]

SCHEDULE 2

SCHEDULE OF ESCROW AGENT FEES

Acceptance Fee

To cover the acceptance of the Escrow Agency appointment, the study of the Escrow Agreement, and supporting documents submitted in connection with the execution and delivery thereof, and communication with other members of the working group:

Fee: WAIVED

Administration Fee

The annual administration fee covers maintenance of the Escrow Account including safekeeping of assets in the Escrow Account, normal administrative functions of Escrow Agent, including maintenance of Escrow Agent’s records, follow-up of the Escrow Agreement’s provisions, and any other safekeeping duties required by Escrow Agent under the terms of the Escrow Agreement. Fee is based on the Escrow Amount being deposited in an interest bearing deposit account, FDIC insured to the applicable limits:

Fee: WAIVED

Tax Preparation Fee

To cover preparation and mailing of Forms 1099-INT, if applicable for the escrow parties for each calendar year:

Fee: WAIVED

Transaction Fees

To oversee all required disbursements or release of property from the Escrow Account to any escrow party, including cash disbursements made via check and/or wire transfer, fees associated with postage and overnight delivery charges incurred by Escrow Agent as required under the terms and conditions of the Escrow Agreement:

Fee: WAIVED

Other Fees

Material amendments to the Agreement: additional fee(s), if any, to be discussed at time of amendment.



SCHEDULE 3

JOINT DIRECTION

TO: Citibank, N.A. as Escrow Agent 388 Greenwich Street, 29th Floor New York, NY 10013 Attn: Debbie DeMarco

This joint direction is issued as of the [ ] day of [ ], [ ], pursuant to Section 4 of that certain Escrow Agreement, dated as of October 16, 2020 (the “Escrow Agreement”), by and among Saadia Group LLC, a New York limited liability company (“Purchaser”), Le Tote, Inc., a Delaware corporation (“Le Tote”), Lord & Taylor LLC, a Delaware limited liability company (“Lord and Taylor” and together with Le Tote, the “Company”), and all of its subsidiaries (together with the Company, each a “Seller” and collectively, the “Sellers”), and Citibank, N.A., as Escrow Agent (“Escrow Agent”). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement.

Purchaser and the Sellers hereby jointly instruct Escrow Agent to pay to [RECIPIENT] an amount equal to $[ ] out of the Escrow Account, by wire transfer to:

[INSERT WIRE INSTRUCTIONS]

Each of the undersigned hereby represents and warrants that it has been authorized to execute this certificate. This certificate may be signed in counterparts.


SAADIA GROUP LLP

By: Name: Title:

LE TOTE, INC.

By: Name: Title:

FRENCH TOTE LLC

By: Name: Title:

LORD & TAYLOR LLC

By: Name: Title:

LT CARD COMPANY LLC

By: Name: Title:

LE TOTE LLC

By: Name: Title:


SCHEDULE 3

AUTOMATIC RELEASE DIRECTION


This automatic release direction is issued as of the [ ] day of [ ], [ ], pursuant to Section 4 of that certain Escrow Agreement, dated as of October 16, 2020 (the “Escrow Agreement”), by and among Saadia Group LLC, a New York limited liability company (“Purchaser”), Le Tote, Inc., a Delaware corporation (“Le Tote”), Lord & Taylor LLC, a Delaware limited liability company (“Lord and Taylor” and together with Le Tote, the “Company”) and all of its subsidiaries (together with the Company, each a “Seller” and collectively, the “Sellers”), and Citibank, N.A., as Escrow Agent (“Escrow Agent”). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement.

Sellers hereby instruct Escrow Agent that the Company is entitled to retain the Escrow Funds pursuant to Section 2.2(b) of the Purchase Agreement. Sellers hereby instruct Escrow Agent to pay the full amount of funds in the Escrow Account, together with the Escrow Earnings (if any), to Sellers, by wire transfer to:

[INSERT WIRE INSTRUCTIONS]

Each of the undersigned hereby represents and warrants that it has been authorized to execute this certificate. This certificate may be signed in counterparts.


[SIGNATURE PAGE TO AUTOMATIC RELEASE INSTRUCTION]

LE TOTE, INC.

By: Name: Title:

FRENCH TOTE LLC

By: Name: Title:

LORD & TAYLOR LLC

By: Name: Title:

LT CARD COMPANY LLC

By: Name: Title:

LE TOTE LLC

By: Name: Title:



SCHEDULE 5

CERTIFICATE OF RELEASE ORDER


Pursuant to, and in accordance with, Section 4 of that certain Escrow Agreement, dated as of October 16, 2020 (the “Escrow Agreement”), by and among Saadia Group LLC, a New York limited liability company (“Purchaser”), Le Tote, Inc., a Delaware corporation, Lord & Taylor LLC, a Delaware limited liability company (the “Company”), and all of its subsidiaries (together with the Company, each a “Seller” and collectively, the “Sellers”), and Citibank, N.A., as escrow agent (“Escrow Agent”), the undersigned hereby certifies to Escrow Agent and [Purchaser]/[Sellers] that:

1. attached is a Release Order pursuant to which Escrow Agent is authorized to

promptly disburse $[ ] from the Escrow Account to [name of applicable recipient] to [insert wire instructions] and Escrow Agent is instructed to comply with such Release Order;

2. the Release Order is final and from a court of competent jurisdiction;

3. Escrow Agent shall be entitled to conclusively rely on the attached Release Order without further investigation; and

4. [Purchaser]/[Sellers] is delivering a copy of this Certificate of Order simultaneously to [Purchaser]/[Sellers].

Capitalized terms not defined herein shall have the meanings ascribed to them in the Escrow Agreement. Dated: Signed:


Exhibit E

Bid Procedures Order









Telephone: (804) 644-1700

-and- Facsimile: (804) 783-6192







Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Proposed Co-Counsel to the Debtors and Debtors in Possession



RICHMOND DIVISION

)

In re: ) Chapter 11

)


)


)

ORDER (I) ESTABLISHING

BIDDING PROCEDURES, (II) SCHEDULING BID

DEADLINES AND AUCTIONS, (III) APPROVING THE FORM

AND MANNER OF NOTICE THEREOF, AND (IV) GRANTING RELATED RELIEF

Upon the Debtors’ Motion for Entry of an Order (I) Establishing Bidding Procedures,

(II) Scheduling Bid Deadlines and the Auctions, (III) Approving the Form and Manner of Notice

Thereof, (IV) Approving the Sale of the Debtors’ Assets Free and Clear, and (V) Granting Related

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting

Related Relief entered August 3, 2020 [Docket No. 72]. The location of the Debtors’ service address is 250 Vesey

Street, 22nd Floor, New York, New York 10281.

Case 20-33332-KLP Doc 269 Filed 08/28/20 Entered 08/28/20 11:22:03 Desc MainDocument Page 1 of 185


2

Relief (the “Motion”)2 of the above-captioned debtors and debtors in possession (collectively,

the “Debtors”), for entry of an order (this “Order”): (a) authorizing and approving the proposed

auction and bid procedures, attached hereto as Exhibit 1 (the “Bidding Procedures”), including

the form asset purchase agreements attached to the Bidding Procedures as Exhibit 1 and Exhibit 2

thereto (the “Form Purchase Agreements”), by which the Debtors will solicit and select the highest

or otherwise best offer(s) for the sale, or sales (the “Le Tote Sale” or the “Lord & Taylor Sale,”

and, together, the “Sales”), of all, substantially all, or any portion of the Debtors’ Assets;

(b) establishing the deadlines by which all bids must be actually received pursuant to the Bidding

Procedures (the “Bid Deadlines”) and the date and time by which the Debtors shall notify the

bidders whether their bids are Qualified Bids (as defined in the Bidding Procedures) (the “Notice

of Qualified Bidder Deadline”); (c) scheduling an auction or auctions to sell the Assets with respect

to the Le Tote Sale and the Lord & Taylor Sale as detailed in the Bidding Procedures

(the “Auctions”) and a hearing to approve the Sales (the “Sale Hearings”); (d) approving the form

and manner of notice of the Auctions attached hereto as Exhibit 2 and Exhibit 3

(the “Auction Notices”); (e) approving the procedures for the assumption and assignment of

executory contracts and unexpired leases (the “Assumption Procedures”), including the notice of

proposed cure amounts attached hereto as Exhibit 4 and Exhibit 5 (the “Assumption Notices”);

(f) approving the form and manner of notice of the Successful Bidders (as defined in the Bidding

Procedures) at the Auctions attached hereto as Exhibit 6 and Exhibit 7 (the “Notices of Successful

Bidder”); and (g) granting related relief; it appearing that the relief requested is in the best interests

of the Debtors’ estates, their creditors, and other parties in interest; the Court having jurisdiction

to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334 and

2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.



3

the Standing Order of Reference from the United States District Court for the Eastern District of

Virginia, dated August 15, 1984; consideration of the Motion and the relief requested therein being

a core proceeding pursuant to 28 U.S.C. § 157(b) and that this Court may enter a final order

consistent with Article III of the United States Constitution; venue being proper before this Court

pursuant to 28 U.S.C. §§ 1408 and 1409; notice of the Motion having been adequate and

appropriate under the circumstances; and upon consideration of the Frejka Declaration in support

of the Motion, and after due deliberation and sufficient cause appearing therefor, THE COURT

FINDS THAT:

A. The findings and conclusions set forth herein constitute the Court’s findings of fact

and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure

(the “Bankruptcy Rules”), made applicable to this proceeding pursuant to Bankruptcy Rule 9014.

To the extent that any of the following findings of fact constitute conclusions of law, they are

adopted as such. To the extent any of the following conclusions of law constitute findings of fact,

they are adopted as such.

B. This Court has jurisdiction over the Motion pursuant to 28 U.S.C. §§ 157 and 1334.

This proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper in this

district and in this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

C. The bases for the relief requested in the Motion are: (i) sections 105(a), 363, 365,

503, 507, and 1146(a) of the Bankruptcy Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”);

(ii) Bankruptcy Rules 2002, 6004, and 9013; and (iii) rules 6004-2 and 9013-1 of the Local

Bankruptcy Rules of United States Bankruptcy Court for the Eastern District of Virginia

(the “Local Bankruptcy Rules”).



4

D. Notice of the Motion has been given to: (i) the Office of the United States Trustee

for the Eastern District of Virginia (the “U.S. Trustee”), Attn: Kathryn R. Montgomery and Lynn

A. Kohen; (ii) the holders of the 30 largest unsecured claims against the Debtors (on a consolidated

basis); (iii) the agents under the Debtors’ prepetition secured facilities and counsel thereto;

(iv) counsel to HBC US Holdings LLC and HBC US Propco Holdings LLC; (v) the Internal

Revenue Service; (vi) the office of the attorneys general for the states in which the Debtors operate;

(vii) the Securities and Exchange Commission; (viii) the National Association of Attorneys

General; and (ix) any party that has requested notice pursuant to Bankruptcy Rule 2002.

E. The Debtors have articulated good and sufficient reasons for this Court to:

(i) approve the Bidding Procedures and (ii) schedule the Auctions and Sale Hearings and approve

the manner of notices of the Auctions and Sale Hearings.

F. The Auction Notices, substantially in the forms attached hereto as Exhibit 2 and

Exhibit 3, are reasonably calculated to provide interested parties with timely and proper notice of

the proposed Sales, including, without limitation: (i) the date, time, and place of the Auctions;

(ii) the Bidding Procedures; (iii) reasonably specific identification of the Assets to be sold; and

(iv) a description of the Sales as being free and clear of liens, claims, encumbrances, and other

interests (except as set forth in the applicable Form Purchase Agreement), with all such liens,

claims, encumbrances, and other interests attaching with the same validity and priority to the Sales

proceeds, and no other or further notice of the Sales shall be required.

IT IS HEREBY ORDERED THAT:

1. The Motion is granted as provided herein.



5

2. All objections to the relief requested in the Motion that have not been withdrawn,

waived, or settled as announced to this Court at the hearing on the Motion or by stipulation filed

with this Court, are overruled.

I. Important Dates and Deadlines.

3. The following dates and deadlines for the sale of the Le Tote Assets are hereby

approved (and may be adjourned from time to time by the Debtors):

Event Date

Le Tote Bid DeadlineSeptember 21, 2020 at 5:00 p.m., prevailing

Eastern Time

Notice of Qualified Bidder Deadline

No later than 11:59 p.m. (prevailing Eastern

Time) on the date that is two (2) business days

following the Bid Deadline

Le Tote Auction (if necessary)September 24, 2020 at 10:00 a.m., prevailing

Eastern Time, if needed

Notice of Successful Le Tote Bidder

As soon as reasonably practicable and in no

event later than 24 hours after the conclusion

of the Le Tote Auction

Le Tote Sale Hearing

September 30, 2020, or such other date that the

Court may later direct and as agreed upon by

the Debtors

4. The following dates and deadlines for the sale of the Lord & Taylor Assets are

hereby approved (and may be adjourned from time to time by the Debtors):

Event Date

Lord & Taylor Bid DeadlineOctober 1, 2020, at 5:00 p.m., prevailing

Eastern Time

Notice of Qualified Bidder Deadline

No later than 11:59 p.m. (prevailing Eastern

Time) on the date that is two (2) business days

following the Bid Deadline



6

Lord & Taylor Auction (if necessary)October 6, 2020, at 10:00 a.m., prevailing

Eastern Time, if needed

Notice of Successful Lord & Taylor Bidder

As soon as reasonably practicable and in no

event later than 24 hours after the conclusion

of the Lord & Taylor Auction

Lord & Taylor Sale Hearing

October 15, 2020 or such other date that the

Court may later direct and as agreed upon by

the Debtors

5. Bid Deadlines: September 21, 2020, at 5:00 p.m., prevailing Eastern Time, is

the deadline by which all bids must be actually received by the Recipient Parties (as defined in the

Bidding Procedures) for the sale of the Le Tote Assets pursuant to the Bidding Procedures.

October 1, 2020, at 5:00 p.m., prevailing Eastern Time, is the deadline by which all bids must

be actually received by the Recipient Parties (as defined in the Bidding Procedures) for the sale of

the Lord & Taylor Assets pursuant to the Bidding Procedures.

6. Notices of Qualified Bidder Deadline: The date that is no later than

two (2) business days following the Bid Deadlines, at 11:59 p.m., prevailing Eastern Time, is

the date and time by which the Debtors shall notify the Bidders whether their Bids are Qualified

Bids.

7. Auctions: September 24, 2020, at 10:00 a.m., prevailing Eastern Time, is the

date and time by which the Le Tote Auction, if needed, will be held by videoconference or such

other form of remote communication established by the Debtors. October 6, 2020, at 10:00 a.m.,

prevailing Eastern Time, is the date and time by which the Lord & Taylor Auction, if needed,

will be held by videoconference or such other form of remote communication established by the

Debtors. The Debtors shall send written notice of the date, time, and place of each Auction to the

Qualified Bidders no later than one (1) business day before such Auction, and file a notice of the

date, time, and place of such Auction with the Court no later than two (2) business days before



7

such Auction and post such notice on the Debtors’ Case Website: https://cases.stretto.com/LeTote.

The Debtors may modify the date, time, and place of each Auction by providing written notice to

Qualified Bidders and filing a notice with the Court so long as such notice is no later than

one (1) business day before such Auction.

8. Notices of Successful Bidder: If applicable, as soon as reasonably practicable and

in no event later than 24 hours after the conclusion of each Auction, or as soon as reasonably

practicable thereafter, the Debtors shall file the Notice of Successful Le Tote Bidder or Notice of

Successful Lord & Taylor Bidder, as applicable.

9. Sale Objection Deadlines: September 27, 2020, at 5:00 p.m., prevailing

Eastern Time, is the deadline to object to the Le Tote Sale (the “Le Tote Sale Objection

Deadline”). October 12, 2020, at 5:00 p.m., prevailing Eastern Time, is the deadline to object

to the Lord & Taylor Sale (the “Lord & Taylor Sale Objection Deadline”).

10. Sale Hearings: September 30, 2020, as the date by which the Debtors shall seek

approval of the Sale of the Le Tote Assets to the designated Successful Bidders in connection with

the Le Tote Auction. October 15, 2020, as the date by which the Debtors shall seek approval of

the Sale of the Lord & Taylor Assets to the designated Successful Bidders in connection with the

Lord & Taylor Auction. Each Sale Hearing may be adjourned by announcement in open Court or

on the Court’s calendar without any further notice required.

II. Auction and Bidding Procedures.

11. The Bidding Procedures and any exhibits attached thereto, attached as Exhibit 1

hereto, are incorporated herein and are hereby approved in their entirety, and the Bidding

Procedures shall govern the submission, receipt, and analysis of all bids related to any Sales. Any



8

party desiring to submit a bid shall comply with the Bidding Procedures and this Order. The

Debtors are authorized to take any and all actions necessary to implement the Bidding Procedures.

12. If two or more Qualified Bids are submitted in connection with the Le Tote Sale,

the Debtors will conduct the Le Tote Auction to determine the Successful Bidder. If only one

Qualified Bid is submitted with respect to the Le Tote Sale, the Debtors may adjourn or cancel the

Le Tote Auction and may decide, in their reasonable business judgment without further approval

of the Court, to designate such Qualified Bid as the Successful Bid. If no Qualified Bids are

submitted, the Debtors may adjourn or cancel the Le Tote Auction. For the avoidance of doubt,

the Le Tote Stalking Horse Bid, if any, shall be deemed a Qualified Bid.

13. If two or more Qualified Bids are submitted in connection with the Lord & Taylor

Sale, the Debtors will conduct the Lord & Taylor Auction to determine the Successful Bidder. If

only one Qualified Bid is submitted with respect to the Lord & Taylor Sale, the Debtors may

adjourn or cancel the Lord & Taylor Auction and may decide, in their reasonable business

judgment without further approval of the Court, to designate such Qualified Bid as the Successful

Bid. If no Qualified Bids are submitted, the Debtors may adjourn or cancel the Lord & Taylor

Auction. For the avoidance of doubt, the Lord & Taylor Stalking Horse Bid, if any, shall be

deemed a Qualified Bid.

14. At each Auction, each Qualified Bidder will be entitled, but will not be obligated,

to submit overbids and will be entitled in any such overbids to credit bid all or a portion of the

value of the secured portion of its claims, if any, within the meaning of section 363(k) of the

Bankruptcy Code.

15. At or following each Auctions, the Debtors may: (a) select, in its business

judgment, pursuant to the Bidding Procedures, (i) the highest or otherwise best bid as the



9

Successful Bidder and (ii) the second highest or otherwise second-best bid as the Backup Bidder;

and (b) reject any bid (regardless of whether such bid is a Qualified Bid) that, in such Debtor’s

business judgment, is (x) inadequate, insufficient, or not the highest or best bid, (y) not in

conformity with the requirements of the Bankruptcy Code, the Bankruptcy Rules, or the Bidding

Procedures, or (z) contrary to, or otherwise not in the best interests of the Debtors’ estates, affected

stakeholders, or other parties in interest, in each case subject to and in accordance with the Bidding

Procedures. For the avoidance of doubt, the Debtors are not required to name a Successful Bidder

for any given Asset or group thereof and may elect to not sell such Asset to the highest or otherwise

best bidder.

16. The Debtors shall be authorized, but not obligated, in an exercise of their business

judgment and in consultation with the Prepetition ABL Lenders, the Prepetition Term Lenders,

and the official committee of unsecured creditors (the “Committee”), to select one or more

Acceptable Bidders to act as a Stalking Horse Bidder for all or any portion of the Assets and may

agree to provide such Stalking Horse Bidder(s) certain bid protections, including an expense

reimbursement, work fee, and/or a break-up fee (the “Bid Protections”); provided that the Debtors

shall seek approval of any Bid Protections at the Sale Hearings, as applicable; provided further

that Bid Protections for any Stalking Horse Bidder(s) that may be selected shall not exceed

three (3) percent of any cash amount of any proposed purchase price; provided further that such

Stalking Horse Bidder shall not be an insider; provided further that the Debtors will provide

expense reimbursement only to the Stalking Horse Bidder and such expenses must be reasonable,

documented, and subject to review by the Debtors and the Notice Parties (as defined in the Bidding

Procedures), who shall have the right to review upon 14 days’ notice and shall have the right to

raise objections during that time to be heard at the Sale Hearings, as applicable.



10

17. In the event the Debtors select one or more Stalking Horse Bidders, the Debtors

will file a supplemental notice (the “Stalking Horse Notice”) with the Court no later than

seven (7) days prior to the applicable Auction, identifying the key terms of the agreement,

including the terms and conditions for payment of any Bid Protections and the Stalking Horse

APA. The Debtors will also cause the Stalking Horse Notice to be served on the Notice Parties,

who shall have the right to raise objections to the selection of the Stalking Horse Bidder or any

Bid Protections prior to the Le Tote Sale Objection Deadline or the Lord & Taylor Sale Objection

Deadline, as applicable, which objections shall be heard at the applicable Sale Hearing.

18. No person or entity, subject to further order from this Court (other than a Stalking

Horse Bidder selected pursuant to the Bidding Procedures and this Order), shall be entitled to any

expense reimbursement, break-up fees, “topping,” termination, or other similar fee or payment,

and by submitting a bid, such person or entity is deemed to have waived their right to request or

to file with this Court any request for expense reimbursement or any fee of any nature, whether by

virtue of section 503(b) of the Bankruptcy Code or otherwise.

III. Auction Notice.

19. The Le Tote Auction Notice, substantially in the form attached to this Order as

Exhibit 2, is approved. Furthermore, the Lord & Taylor Auction Notice, substantially in the form

attached to this Order as Exhibit 3, is approved. Within three (3) business days of the entry of the

Order or as soon thereafter as reasonably practicable, the Debtors shall cause the Auction Notices

to be served upon the Notice Parties. The Auction Notices will indicate that copies of the Motion



11

and any future sale documents, if applicable, can be obtained on the Debtors’ Case

Website: https://cases.stretto.com/letote.

20. Within three (3) business days after entry of this Order, or as soon as reasonably

practicable thereafter, the Debtors shall place a publication version of the Auction Notices for one

day in the USA Today (National Edition) and post it onto the Case Website. Such notice shall be

deemed sufficient and proper notice of the Sales with respect to known interested parties.

21. Within two (2) business days after the conclusion of the Auctions, or as soon as

reasonably practicable thereafter, the Debtors will file on the docket, but not serve on any party

other than the Notice Parties, the Notices of Successful Bidder identifying the applicable

Successful Bidder(s), Assets to be sold, and the key terms of the agreement, including any expense

reimbursement, work fee, and/or break-up fee proposed to be paid, substantially in the forms

attached to this Order as Exhibit 6 and Exhibit 7.

IV. Assumption and Assignment Procedures

22. The Assumption Procedures below are hereby approved and shall be the procedures

by which the Debtors will notify counterparties (the “Assumed Contract Counterparties”) to

executory contracts and unexpired leases (the “Contracts”) of proposed cure amounts in the event

the Debtors determine to assume and assign such contracts or leases in connection with a sale,

liquidation, or other disposition.

23. On a date no later than twenty (20) days prior to the applicable Sale Hearing, the

Debtors shall file with the Court the Assumption Notices in the form attached hereto as Exhibit 4

and Exhibit 5 to assume one or more Contracts with respect to the Le Tote Sale or Lord & Taylor

Sale, as applicable, pursuant to section 365 of the Bankruptcy Code, which shall set forth, among

other things: (a) the Contract or Contracts to be assumed; (b) the names and addresses of the



12

counterparties to such Contracts; (c) the identity of the proposed assignee of such Contracts (the

“Assignee”), if known; (d) the effective date of the assumption for each such Contract (the

“Assumption Date”); (e) the proposed cure amount (the “Cure Costs”), if any for each such

Contract; (f) a description of any material amendments to the Contract made outside of the ordinary

course of business; and (g) the deadlines and procedures for filing objections to the Assumption

Notices (as set forth below). The Debtors will cause the Assumption Notices to be served (y) by

overnight delivery service upon the Contract counterparties affected by the Assumption Notices at

the address set forth in the notice provision of the applicable Contract (and their counsel, if known)

and (z) by first class mail, email, or fax upon the Notice Parties.

24. To the extent the Debtors seek to assume and assign a lease of nonresidential real

property or executory contract, the Debtors will, at the request of the applicable lease or contract

counterparty, within four (4) days after the Bid Deadline, provide evidence to such applicable lease

or contract counterparty (and their counsel, if known) that the proposed assignee of the lease or

contract has the ability to comply with the requirements of adequate assurance of future

performance, including the Adequate Assurance Package (as defined in the Bidding Procedures)

on a confidential basis for all nonpublic information. For the avoidance of doubt, the applicable

lease or contract counterparty and its counsel may store the Adequate Assurance Package in its

files; provided that the applicable lease or contract counterparty shall keep confidential any

nonpublic information; provided further that a lease or contract counterparty may file an objection

to such Adequate Assurance Package, including confidential information, if necessary, under seal

without further order of the Court.

25. Notwithstanding anything to the contrary contained in this Order, or anything in

any subsequent notice relating to the Sale to the contrary, the Debtors shall, no later than



13

two (2) business days prior to the Lord & Taylor Sale Hearing, provide Cigna Health and Life

Insurance Company, certain Cigna Dental Health entities, and Cigna HealthCare of Connecticut,

Inc. (through their counsel which have appeared in these chapter 11 cases) with written, irrevocable

notice of whether the Debtors propose to assume and assign each of the Employee Benefit

Agreements (as defined in the Objection of Cigna to Debtors’ Motion for Entry of an Order

(I) Establishing Bidding Procedures (II) Scheduling Bid Deadlines and Auctions, (III) Approving

the Form and Manner of Notice Thereof, (IV) Approving the Sale of the Debtors’ Assets Free and

Clear, and (V) Granting Related Relief [Docket No. 152] (the “Cigna Objection”)) as part of the

Sale.

26. Parties objecting to a proposed assumption and assignment and/or to a Successful

Bidder’s proposed form of adequate assurance of future performance must file a written objection

(each, an “Assumption Objection”) so that such Assumption Objection is filed with the Court and

actually received by September 28, 2020, at 5:00 p.m. prevailing Eastern Time for the

Le Tote Sale and October 12, 2020, at 5:00 p.m., prevailing Eastern Time for the

Lord & Taylor Sale, and serve such Assumption Objection on the Notice Parties.

27. If a counterparty files a timely Assumption Objection, such objection shall be heard

at the Sale Hearing or such later date that the Debtors, in consultation with the Successful Bidder,

shall determine in their discretion (subject to the Court’s calendar).

28. If no objection to the assumption of any Contract is timely filed, each Contract shall

be assumed as of the Assumption Date set forth in the applicable Assumption Procedures or such

other date as the Debtors and the counterparty or counterparties to such Contract(s) agree and the

proposed cure amount shall be binding on all counterparties to such Contract and no amount in

excess thereof shall be paid for cure purposes; provided, however that the Assumption Date for a



14

lease of nonresidential real property shall not occur earlier than the date the Debtors filed and

served the applicable Assumption Notice.

29. If the Assumed Contract Counterparty does not file and serve an Assumption

Objection or supplemental Assumption Objection in a manner that is consistent with the

requirements set forth herein, and absent a subsequent order of the Court in connection with such

objection establishing an alternative Cure Cost, (a) the Cure Costs, if any, set forth in the

Assumption Notice (or supplemental Assumption Notice) shall be controlling, notwithstanding

anything to the contrary in any Assumed Contract or any other document, and (b) the Assumed

Contract Counterparty will be deemed to have consented to the assumption and assignment of the

Assumed Contract and the Cure Costs, if any, and will be forever barred from asserting any other

claims related to such Assumed Contract against the Debtors or the Successful Bidder, or the

property of any of them.

30. The inclusion of an Assumed Contract on the Assumption Notice will not:

(a) obligate the Debtors to assume any Assumed Contract listed thereon or the Successful Bidder

to take assignment of such Assumed Contract; or (b) constitute any admission or agreement of the

Debtors that such Assumed Contract is an executory contract. Only those Assumed Contracts that

are included on a schedule of assumed and acquired contracts attached to a final asset purchase

agreement with a Successful Bidder (including amendments or modifications to such schedules in

accordance with such asset purchase agreement) will be assumed and assigned to the applicable

Successful Bidder. No Assumed Contract shall be assumed absent closing on the assignment

thereof to the applicable Successful Bidder.



15

31. For the avoidance of doubt, all provisions of the applicable assigned Contract,

including any provision limiting future assignment, shall be binding on the applicable Assignee

after consummation of the assignment of such Contract by the Debtors to the Assignee.

V. Miscellaneous.

32. Notwithstanding anything to the contrary contained in this Order or otherwise:

(a) the rights of the Prepetition ABL Lenders and Prepetition Term Lenders to consent to the sale

of any portion of their collateral, including, without limitation, any Assets, on terms and conditions

acceptable to the Prepetition ABL Lenders and Prepetition Term Lenders, are hereby expressly

reserved and not modified, waived or impaired in any way by this Order; (b) nothing in this Order

shall amend, modify, or impair any provision of the interim order [Docket No. 28] or any final

order approving the Debtors’ use of cash collateral (the “Cash Collateral Orders”), or the rights of

the Debtors, the Prepetition ABL Lenders, or the Prepetition Term Lenders thereunder; and (c) the

Debtors shall consult with the Prepetition ABL Lenders and the Prepetition Term Lenders prior to

employing any additional procedures at any Auction.

33. Notwithstanding anything to the contrary contained in this Order or otherwise,

(a) the rights of Wilmington Trust, National Association, as Trustee in Trust for Holders of

Hudson’s Bay Simon JV Trust 2015-HBS, Commercial Mortgage Pass-Through Certificates,

Series 2015-HBS (the “CMBS Trust”) and Hudson’s Bay Company ULC, HBC US Holdings Inc.,

and HBC US Propco Holdings LLC (collectively, “HBC”) and HBS Global Properties LLC and

its wholly owned subsidiaries as landlords under that certain Master Lease dated as of

July 22, 2015 (the “Master Lease”) (collectively, “HBS”), to object and/or request relief arising

from or relating to the assumption and/or assignment of any individual facility or less than all of

the facilities governed by the Master Lease, attached as Exhibit 10 to Docket No. 156, are hereby



16

expressly reserved and not modified, waived or impaired in any way by this Order and (b) the

CMBS Trust shall provisionally be deemed an Assumed Contract Counterparty with respect to the

Master Lease with respect to receipt of Assumption Notices and Adequate Assurance Packages,

and to the right to make Assumption Objections or supplemental Assumption Objections in respect

thereof; provided, however, that the Debtors, the CMBS Trust, and all other parties in interest each

reserve all rights regarding the foregoing matters pending determination by the Court of the right

of the CMBS Trust to exercise those rights; provided, further that in the event it is determined by

the Court by a final order that the CMBS Trust may not exercise those rights, this clause 33(b)

shall be of no further force and effect. Any such objections shall be resolved consensually between

the Debtors and the CMBS Trust, the Debtors and HBC, or the Debtors and HBS, as applicable,

prior to the Sale Hearing, if possible, and or, if the parties are unable to resolve such dispute, at

the Sale Hearing.

34. Notwithstanding anything to the contrary contained in this Order or otherwise, the

rights of HBC, to object and/or request relief arising from or relating to HBC’s “Call” rights

pursuant to that certain asset purchase agreement (the “APA”) with respect to the assumption

and/or assignment of any lease subject to such Call rights under the APA, are hereby expressly

reserved and not modified, waived or impaired in any way by this Order. Any such objections

shall be resolved consensually between the Debtors HBC prior to the Sale Hearing, if possible,

and or, if the parties are unable to resolve such dispute, at the Sale Hearing.

35. The failure to include or reference a particular provision of the Bidding Procedures

in this Order shall not diminish or impair the effectiveness or enforceability of such a provision in

the Bidding Procedures.



17

36. The Debtors shall properly file reports of sale for all Sales, regardless of whether

the Sale is pursuant to the Bidding Procedures.

37. The Debtors are authorized to establish an escrow account to accept deposits from

Qualified Bidders and may pay any reasonable fees related to such account. Any deposits made

by Qualified Bidders into the escrow account shall not be property of the Debtors.

38. In the event of any inconsistencies between this Order and the Motion, this Order

shall govern. In the event of any inconsistencies between this Order and the Bidding Procedures,

the Bidding Procedures shall govern.

39. The requirement under Local Bankruptcy Rule 9013-1(b) to file a memorandum of

law in connection with the Motion is waived.

40. Notice of the Motion as provided therein shall be deemed good and sufficient notice

as to such Motion and the requirements of the Bankruptcy Rules and the Local Bankruptcy Rules

are satisfied by such notice, including with respect to any Sale entered pursuant to the Bidding

Procedures.

41. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order

shall be immediately effective and enforceable upon its entry.

42. The Debtors are authorized to take all actions necessary to effectuate the relief

granted in this Order in accordance with the Motion.

43. This Court retains exclusive jurisdiction with respect to all matters arising from or

related to the implementation of this Order.

Dated: __________

Richmond, Virginia Honorable Keith L. Phillips

United States Bankruptcy Judge

Aug 28 2020 /s/ Keith L. Phillips

Entered on Docket: Aug 28 2020



WE ASK FOR THIS:

/s/ Jeremy S. WilliamsMichael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

Brian H. Richardson (VA 92477)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

- and -

Steven N. Serajeddini, P.C. (admitted pro hac vice)



601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile: (212) 446-4900

- and -






Chicago, Illinois 60654Telephone: (212) 446-4800

Facsimile: (212) 446-4900


CERTIFICATION OF ENDORSEMENT

UNDER LOCAL BANKRUPTCY RULE 9022-1(C)

Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing proposed order has been

endorsed by or served upon all necessary parties.

/s/ Jeremy S. Williams



Exhibit 1

Bidding Procedures










Telephone: (804) 644-1700

-and- Facsimile: (804) 783-6192







Telephone: (312) 862-2000

Facsimile: (312) 862-2200




RICHMOND DIVISION

)

In re: ) Chapter 11

)


)


)

BIDDING PROCEDURES FOR THE SALE OF THE DEBTORS’ ASSETS

On [ ], the United States Bankruptcy Court for the Eastern District of Virginia entered the

Order (I) Establishing Bidding Procedures, (II) Scheduling Bid Deadlines and Auctions,

(III) Approving the Form and Manner of Notice Thereof, and (IV) Granting Related Relief

[Docket No. [ ]] (the “Order”),2 by which the Court approved procedures setting forth the process

by which the Debtors are authorized to solicit bids for and conduct auctions (the “Auctions”) for

a sale or disposition (the “Le Tote Sale” or the “Lord & Taylor Sale,” and together, the “Sales,”

and each, a “Sale Transaction”) of all or substantially all of the Debtors’ Assets (as defined herein)

or any portion thereof, either as a going-concern or as a liquidation (the “Bidding Procedures”).

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting

Related Relief entered August 3, 2020 [Docket No. 72]. The location of the Debtors’ service address is 250 Vesey

Street, 22nd Floor, New York, New York 10281.

2 All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Order.



2

I. DESCRIPTION OF THE ASSETS.

The Debtors are seeking to sell all of their assets, or any portion thereof, including the

assets related to the Le Tote business (the “Le Tote Assets”) and the assets related to the

Lord & Taylor business (the “Lord & Taylor Assets”) either as a going-concern or as a liquidation.

These assets include, but are not limited to, the Debtors’ going-concern businesses, unexpired

leases, executory contracts, equipment, inventory, supplies, intellectual property, insurance

proceeds, receivables, prepaid expenses and deposits, and books and records, in each case, free

and clear of all liens, claims, interests, or other encumbrances (collectively, the “Assets”).

II. SOLICITATION PROCESS; DISTRIBUTION OF BIDDING PROCEDURES

For any sale of the Assets in these chapter 11 cases, the Debtors and/or any agent of the

Debtors shall, at the Debtors’ direction, distribute these Bidding Procedures to any potential

interested bidders. The Debtors, in the exercise of their reasonable business judgment, in

consultation with the Prepetition ABL Lenders, the Prepetition Term Lenders, and the Committee

(the “Consultation Parties”) may elect to exclude any Assets from these Bidding Procedures and

sell such Assets at either a private or public sale, subject to Court approval of any alternative sale

method. Furthermore, the Debtors may determine in their discretion (upon consultation with the

Consultation Parties) whether to proceed with a sale of any Asset pursuant to these Bidding

Procedures.

Notwithstanding anything herein to the contrary, all consultation, notification, or other

rights of the Consultation Parties are subject to, and such parties agree to be bound by, any

confidentiality obligation or agreement entered with the Potential Bidders (as defined herein).

III. PARTICIPATION REQUIREMENTS.

A. Potential Bidders.

To participate in the bidding process or otherwise be considered for any purpose hereunder,

a person or entity interested in the Assets or part of the Assets (a “Potential Bidder”) must deliver

to each of the Debtors’ advisors the following documents and information (unless the Debtors, in

their business judgment, choose to waive any of the following requirements for any Potential

Bidder):

1. an executed confidentiality agreement to the extent the Potential Bidder has

not already executed a confidentiality agreement on terms acceptable to the

Debtors (a “Confidentiality Agreement”);

2. identification of the Potential Bidder and any principals and representatives

thereof who are authorized to appear and act on its behalf for all purposes

regarding the contemplated Sale Transaction(s); and

3. proof by the Potential Bidder of its financial capacity to close a proposed

Sale Transaction(s), which may include financial statements of, or verified

financial commitments obtained by, the Potential Bidder (or, if the Potential

Bidder is an entity formed for the purpose of acquiring the desired Assets,



3

the party that will bear liability for a breach), the adequacy of which will be

assessed by the Debtors (including in consultation with their advisors).

The Debtors, in consultation with their advisors, will determine and notify each Potential

Bidder whether such Potential Bidder has submitted adequate documents so that such Potential

Bidder may proceed to conduct due diligence and submit a Bid (as defined herein) (such Potential

Bidder, an “Acceptable Bidder”). Notwithstanding anything herein to the contrary, the Debtors

reserve the right to work with a Potential Bidders to aggregate bids into a consolidated Qualified

Bid prior to the applicable Bid Deadline (each as defined herein).

B. Obtaining Due Diligence.

The Debtors, with their advisors, shall establish an electronic data room or rooms

(the “Data Room”) that provides standard and customary diligence materials, including the

necessary information to allow Acceptable Bidders to submit a Qualified Bid (as defined below)

and to seek and obtain commitments for debt financing.

Only Acceptable Bidders shall be eligible to receive diligence materials, access to the

Debtors’ Data Room, and additional non-public information regarding the Debtors and the Assets.

The Debtors (with the assistance of their advisors) shall coordinate all reasonable requests from

Acceptable Bidders for additional information and due diligence access; provided that (i) the

Debtors shall have the right to reasonably limit the information and due diligence provided to

competitors and (ii) the Debtors may decline to provide such information to Acceptable Bidders

who, at such time and in the Debtors’ reasonable business judgment, have not established, or who

have raised doubt, that such Acceptable Bidder intends in good faith to, or has the capacity to,

consummate a proposed Sale Transaction. The due diligence period will end on the Bid Deadline

and, subsequent to the Bid Deadline, the Debtors shall have no obligation to furnish any due

diligence information. Additional due diligence will not be provided after the Bid Deadline, unless

otherwise deemed reasonably appropriate by the Debtors. The Debtors, their representatives and

advisors are not responsible for, and will bear no liability with respect to, any information obtained

by any Acceptable Bidder in connection with any Sale or Sale Transaction.

C. Bid Deadlines.

An Acceptable Bidder that desires to make a Bid for the Le Tote Assets must transmit via

email (in .pdf or similar format) or deliver written copies of its Bid to the following parties so as

to be received not later than 5:00 p.m. (prevailing Eastern Time) on Monday,

September 21, 2020 (the “Le Tote Bid Deadline”). An Acceptable Bidder that desires to make a

Bid for the Lord & Taylor Assets must transmit via email (in .pdf or similar format) or deliver

written copies of its Bid to the following parties so as to be received not later than 5:00 p.m.

(prevailing Eastern Time) on Thursday, October 1, 2020 (the “Lord & Taylor Bid Deadline,”

and together with the Le Tote Bid Deadline, the “Bid Deadlines”):

(i) proposed co-counsel to the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue,

New York, New York 10022, Attn: Marshall Shaffer

([email protected]), William Halaby ([email protected])

and Christian Atwood ([email protected]), and



4

Kirkland & Ellis LLP, 300 North LaSalle Street, Chicago, Illinois 60654,

Attn: David L. Eaton ([email protected]) and Jaimie Fedell

([email protected]); and

(ii) proposed co-counsel to the Debtors, Kutak Rock LLP, 901 East Byrd Street, Suite

1000, Richmond, Virginia, 23219, Attn: Michael Condyles

([email protected]), Peter Barrett ([email protected]),

Jeremy Williams ([email protected]), and Brian Richardson

([email protected]); and

(iii) the Debtors’ proposed investment banker, Nfluence Partners (“Nfluence”),

160 Spear Street, Suite 1230, San Francisco, California 94105, Attn: Gary Moon

([email protected]), Monica Mariani

([email protected]), and Guarav Gaitonde

([email protected]) (each party in clauses (i) through (iii),

collectively, the “Recipient Parties”).

The Debtors will provide copies of all Bids via electronic mail as soon as reasonably

practicable to counsel for the Consultation Parties subject to any confidentiality obligation or

agreement entered with the Potential Bidders.

IV. QUALIFIED BIDS.

A. Requirements for Qualified Bids.

Any proposal, solicitation, or offer (each, a “Bid”) will be considered a qualified bid only

if the Bid is submitted in writing by an Acceptable Bidder, by the relevant Bid Deadline, and is

deemed to comply with all of the following in the Debtors’ business judgment, in consultation

with the Consultation Parties (a “Qualified Bid” and such bidder a “Qualified Bidder”):

1. Purchased Assets and Assumed Liabilities. Each Bid must clearly identify

(a) the particular Assets, or portions thereof, to be purchased and/or

liquidated or otherwise disposed of and (b) the liabilities and obligations to

be assumed, including any debt to be assumed, whether in connection with

the Le Tote Assets or the Lord & Taylor Assets.

2. Purchase Price. Each Bid must clearly set forth the purchase price to be

paid, including cash and non-cash components, if any (the “Purchase

Price”).

3. Committed Financing. To the extent that a Bid is not accompanied by

evidence of the Acceptable Bidder’s capacity to consummate the proposed

transactions set forth in its Bid with cash on hand, each Bid must include

committed financing documented to the satisfaction of the Debtors that

demonstrates that the Acceptable Bidder has received sufficient

unconditional debt and/or equity funding commitments to satisfy the

Acceptable Bidder’s Purchase Price and other obligations under its Bid,

including providing adequate assurance of future performance under all



5

contracts and leases proposed to be assumed (“Assumed Contracts”), by

such Bid and the identity and contact information of the specific person(s)

whom Nfluence should contact regarding such committed financing. Such

funding commitments or other financing must be unconditional and must

not be subject to any internal approvals, syndication requirements,

diligence, or credit committee approvals, and shall have covenants and

conditions acceptable to the Debtors, in consultation with their advisors.

4. Adequate Assurance. Each Bid must be accompanied by adequate

assurance of future performance under all Assumed Contracts, which shall

include audited and unaudited financial statements, tax returns, bank

account statements, and a description of the business to be conducted at the

premises and/or any other documentation that the Debtors further request

(the “Adequate Assurance Package”). The Adequate Assurance Package

should be submitted in its own compiled PDF document.

5. Deposit. Each Bid must be accompanied by a cash Deposit in amount

acceptable to the Debtors, in consultation with the Consultation Parties,

which amount shall not exceed ten (10) percent of the Purchase Price of the

Bid, and such Deposit will be held in an interest bearing escrow account to

be identified and established by the Debtors (each a “Deposit”), provided

that if a Qualified Bidder increases its Bid at the Auction and is the

Successful Bidder or Backup Bidder (each as defined herein), such bidder

must increase its Qualified Bidder Deposit to match the proposed Purchase

Price submitted at the Auction within three (3) business days after the

Auction.

6. Markup of Purchase Agreements. If the Debtors do not select a Stalking

Horse Bidder (as defined herein), a Bid must include (a) a duly executed,

non-contingent transaction documents necessary to effectuate the

transactions contemplated in the Bid (the “Bid Documents”), including, but

not limited to a clearly marked version of the form Le Tote and Lord &

Taylor purchase agreements, attached hereto as Exhibit 1 or Exhibit 2 (the

“Form Purchase Agreements”), as applicable, showing all changes

requested by the Applicable Bidder, (b) a schedule of Assumed Contracts

to the extent applicable to the Bid, (c) any other material documents integral

to such Bid, and (d) a statement from the Acceptable Bidder that: (y) it is

prepared to enter into and consummate the Transactions contemplated in

the applicable Form Purchase Agreement no later than fifteen (15) business

days after the conclusion of the Auction (or, if no Auction is held, the Bid

Deadline) and (z) the Qualified Bid will be irrevocable (whether or not such

Qualified Bid is selected as the Successful Bid or the Backup Bid) until the

consummation of the Sale Transaction.

7. Markup of Le Tote APA. If the Debtors select a Le Tote Stalking Horse

Bidder (as defined herein), then the Debtors shall cause a proposed asset

purchase agreement (the “Le Tote APA”) to be served on applicable parties



6

in connection with service of the Le Tote Stalking Horse Notice. Each Bid

submitted in connection with the Le Tote Sale must expressly include the

Le Tote APA with a blackline clearly marked to show changes requested by

the applicable Bidder. If no Le Tote Stalking Horse Bid has been selected,

any Bidder submitting a Bid in connection with the Le Tote Assets shall

include a proposed Le Tote APA in connection with such Bid.

8. Markup of Lord & Taylor APA. If the Debtors select a Lord & Taylor

Stalking Horse Bidder, then the Debtors shall cause a proposed asset

purchase agreement (the “Lord & Taylor APA,” and, together with the

Le Tote APA and any Successful Bidder’s asset purchase agreement,

collectively, the “Stalking Horse APAs”) to be served on applicable parties

in connection with service of the Lord & Taylor Stalking Horse Notice.

Each Bid submitted in connection with the Lord & Taylor Sale must

expressly include the Lord & Taylor APA with a blackline clearly marked

to show changes requested by the applicable Bidder. If no Lord & Taylor

Stalking Horse Bid has been selected, any Bidder submitting a Bid in

connection with the Lord & Taylor Assets shall include a proposed

Lord & Taylor APA in connection with such Bid.

9. Bids for Individual Assets or Combinations of Assets. Bidders may submit

Bids for individual Assets or combinations of Assets and are not required

to submit Bids for all Assets proposed to be included in the Le Tote Sale or

the Lord & Taylor Sale (a “Partial Bid”). Partial Bids must include a

markup of the Le Tote APA or the Lord & Taylor APA, as applicable. The

Debtors shall determine, after consultation with the Consultation Parties,

whether Partial Bids constitute Qualified Bids. Generally, to be considered

a Qualified Bid, the Debtors must conclude that the Partial Bid, when taken

together with other Bids or Partial Bids, satisfies the criteria for being a

Qualified Bid.

10. Same or Better Terms; Bid Documents. Except as otherwise provided in

herein, each Bid must be, in the Debtors’ reasonable business judgment,

based on consultation with the Consultation Parties, substantially on the

same or better terms than the terms of the Le Tote APA or the Lord & Taylor

APA, as applicable.

11. Identity. Each Bid must fully disclose the identity of each entity that will

be bidding or otherwise participating in connection with such Bid (including

each equity holder or other financial backer of the Bidder if such Bidder is

an entity formed for the purpose of consummating the proposed transaction

contemplated by such Bid), and the complete terms of any such

participation. Under no circumstances shall any undisclosed principals,

equity holders, or financial backers be associated with any Bid. Each Bid

must also include contact information for the specific person(s) whom

Nfluence and the Debtors’ proposed counsel should contact regarding such

Bid.



7

12. Authorization. The Bid must include evidence that the Acceptable Bidder

has obtained authorization or approval from its board of directors (or

comparable governing body) acceptable to the Debtors with respect to the

submission, execution, and delivery of its Bid, participation in the Auction,

and closing of the proposed transaction(s) contemplated in such Bid. The

Bid shall further state that any necessary filings under applicable regulatory,

antitrust, and other laws will be made in a timely manner and that payment

of the fees associated therewith shall be made by the Acceptable Bidder.

13. No Contingencies. Any Bid shall not contain any contingencies as to the

validity, effectiveness, and/or binding nature of the bid, including, without

limitation, a condition on the obtaining or the sufficiency of financing or

any internal approval, or on the outcome or review of due diligence, but

may be subject to the accuracy at the closing of specified representations

and warranties or the satisfaction at the closing of specified conditions,

which shall not be more burdensome, in the Debtors’ reasonable business

judgment than those set forth in the Le Tote APA or the Lord & Taylor

APA, as applicable.

14. Irrevocability: ALL BIDS SHALL BE DEEMED IRREVOCABLE,

NOTWITHSTANDING ANY CONDITIONS LISTED IN THE

APPLICABLE AGREEMENT. IN THE EVENT THAT AN

ACCEPTABLE BIDDER SEEKS TO REVOKE SUCH BID, THE

DEBTORS SHALL BE ENTITLED TO KEEP SUCH BIDDER’S

DEPOSIT AND PURSUE ALL OTHER CONTRACTUAL

REMEDIES UNDER LAW OR EQUITY.

15. Expenses. Each Bidder presenting a Bid or Bids shall bear its own costs

and expenses (including legal fees and financial advisor fees) in connection

with the proposed transaction.

16. As-Is, Where-Is. Each Bid must include a written acknowledgement and

representation that the Bidder: (a) has had an opportunity to conduct any

and all due diligence prior to making its offer; (b) has relied solely upon its

own independent review, investigation, and/or inspection of any documents

and/or the assets in making its Bid; and (c) did not rely upon any written or

oral statements, representations, promises, warranties, or guaranties

whatsoever, whether express, implied, by operation of law, or otherwise,

regarding the completeness of any information provided in connection

therewith or the Auctions, except as expressly stated in the Bidder’s

proposed asset purchase agreement.

17. Government Approvals. Each Bid must include a description of all

governmental, licensing, regulatory, or other approvals or consents that are

required to close the proposed Sales, together with evidence satisfactory to

the Debtors of the ability to obtain such consents or approvals in a timely

manner, as well as a description of any material contingencies or other



8

conditions that will be imposed upon, or that will otherwise apply to, the

obtainment or effectiveness of any such consents or approvals.

18. Backup Bidder. If the Auctions are conducted, with respect to each Sale,

the Qualified Bidder with the next-highest or otherwise second-best

Qualified Bids at the Auctions for the Le Tote Assets, the Lord & Taylor

Assets, and/or the excluded Assets, or any combination of the forgoing, as

applicable, as determined by the Debtors in the exercise of their reasonable

business judgment, in consultation with the Consultation Parties, shall be

required to serve as a Backup Bidder. Each Backup Bidder, if any, shall be

required to keep its Qualified Bid (or if the applicable Backup Bidder

submitted one or more Overbids at the Auctions, its final Overbid) open and

irrevocable until the closing of the transactions with each Successful

Bidder. The applicable Backup Bidder’s Deposit shall be held in escrow

until the earlier of 24 hours after (a) the closing of a transaction with a

Successful Bidder and (b) 60 days after the date on which the Auction is

concluded.

19. Adherence to Bid Procedures. Each Bid must include (a) a statement that

the Acceptable Bidder has acted in good faith consistent with

section 363(m) of the Bankruptcy Code, and (b) that the Bid constitutes a

bona fide offer to consummate the proposed transactions, and agrees to be

bound by these Bidding Procedures.

20. Fiduciary Out. Nothing in these Bidding Procedures shall require the

Debtors’ (or any other debtors’) management or board of directors to take

any action or to refrain from taking any action with respect to these Bidding

Procedures when the Debtors’ management or board of directors (or other

debtors’ management or board of directors) determine, based on the advice

of their counsel, that taking such action or refraining from taking such

action, as applicable, is required to comply with applicable law or their

fiduciary obligations under applicable law.

21. No Collusion. The Acceptable Bidder must acknowledge in writing that

(a) in connection with submitting its Bid, it has not engaged in any collusion

that would be subject to section 363(n) of the Bankruptcy Code with respect

to any Bids or the Sale, specifying that it did not agree with any Potential

Bidders, Acceptable Bidders or Qualified Bidders to control price; and (b) it

agrees not to engage in any collusion that would be subject to section 363(n)

of the Bankruptcy Code with respect to any Bids, the Auction, or the Sale.

22. Other Information. The Bid contains such other information as may be

reasonably requested by the Debtors.



9

B. Rejection of “Qualified Bid” Status for Non-Conforming Bids.

The Debtors shall determine in their discretion (in consultation with the Consultation

Parties) which bids qualify as Qualified Bids and which bids shall be rejected as non-confirming

bids. In addition, the Debtors shall have the right to negotiate with any Acceptable Bidder with

respect to clarification of any Bid.

C. No Representation; Qualified Bidder’s Duty to Review.

Neither the Debtors nor any of their advisors are making or have at any time made any

warranties or representations of any kind or character, express or implied, with respect to the

Assets, including, but not limited to, any warranties or representations as to operating history or

projections, valuation, governmental approvals, the compliance of the Assets with governmental

laws, the truth, accuracy, or completeness of any documents related to the Assets, or any other

information provided by or on behalf of the Debtors to a bidder, or any other matter or thing

regarding the Assets. All bidders must acknowledge and agree that upon closing the Debtors shall

sell and transfer to the Successful Bidder and the Successful Bidder shall accept the applicable

Assets, except to the extent expressly provided in the Court’s order approving the Sale. Neither

the Debtors nor any of their advisors will be liable for or bound by any express or implied

warranties, guaranties, statements, representations, or information pertaining to the Assets or

relating thereto that the Debtors, any advisor, or agent representing or purporting to represent the

Debtors to whomever might have made or furnished, directly or indirectly, orally or in writing,

unless (with respect to the Debtors only) specifically set forth in the Court’s order approving the

Sale.

V. QUALIFICATION OF BIDDERS.

No later than 11:59 p.m. (prevailing Eastern Time) on the date that is two (2) business days

following the Bid Deadline, the Debtors shall notify each Acceptable Bidder whether such party

is a Qualified Bidder.

If any Bid is determined by the Debtors (after consultation with the Consultation Parties)

not to be a Qualified Bid, the Debtors will refund such Acceptable Bidder’s Deposit on or before

the date that is five (5) business days after the Bid Deadline.

The Debtors may, in consultation with the Consultation Parties, accept as a single Qualified

Bid, multiple Bids for non-overlapping material portions of the Assets such that, when taken

together in the aggregate, such Bids would otherwise meet the standards for a single Qualified Bid.

The Debtors may permit otherwise Qualified Bidders who submitted Bids by the Bid Deadline for

less than a substantial (but nevertheless a material) portion of the Assets but who were not

identified as a component of a single Qualified Bid consisting of such multiple Bids, to participate

in the Auction and to submit higher or otherwise better Bids that in subsequent rounds of bidding

may be considered, together with other Bids for non-overlapping material portions of the Assets,

as part of such a single Qualified Bid for Overbid (as defined herein) purposes.

Between the date that the Debtors notify an Acceptable Bidder that it is a Qualified Bidder

and the Auction, the Debtors may discuss, negotiate, or seek clarification of any Qualified Bid

from a Qualified Bidder. Without the prior written consent of the Debtors (in consultation with



10

the Consultation Parties), a Qualified Bidder may not modify, amend, or withdraw its Qualified

Bid, except for proposed amendments to increase the consideration contemplated by, or otherwise

improve the terms of, the Qualified Bid, during the period that such Qualified Bid remains binding

as specified in these Bidding Procedures; provided that any Qualified Bid may be improved at the

Auction as set forth herein. Any improved Qualified Bid must continue to comply with the

requirements for Qualified Bids set forth in these Bidding Procedures.

Notwithstanding anything herein to the contrary, the Debtors reserve the right (in

consultation with the Consultation Parties) to work with (a) Acceptable Bidders to aggregate two

or more Bids into a single consolidated Qualified Bid prior to the Bid Deadline or (b) Qualified

Bidders to aggregate two or more Qualified Bids into a single Qualified Bid prior to the conclusion

of the Auction. The Debtors reserve the right to cooperate with any Acceptable Bidder in advance

of the Auction to cure any deficiencies in a Bid that is not initially deemed to be a Qualified Bid.

The Debtors may accept a single Qualified Bid or multiple Bids for non-overlapping material

portions of the Assets such that, if the multiple Bids were taken together in the aggregate, they

would otherwise meet the standards for a single Qualified Bid (in which event those multiple

Acceptable Bidders shall be treated as a single Qualified Bidder for purposes of the Auction).

Each Qualified Bidder shall comply with all reasonable requests for additional information

and due diligence access requested by the Debtors or their advisors regarding the ability of such

Qualified Bidder to consummate its contemplated transaction. Failure by a Qualified Bidder to

comply with such reasonable requests for additional information and due diligence access may be

a basis for the Debtors to determine that such Acceptable Bidder is no longer a Qualified Bidder

or that a Bid made by such Acceptable Bidder is not a Qualified Bid.

VI. RIGHT TO CREDIT BID.

Any Qualified Bidder who has a valid and perfected lien on any Assets of the Debtors’

estates (a “Secured Creditor”) shall have the right to credit bid all or a portion of the value of such

Secured Creditor’s allowed claims within the meaning of section 363(k) of the Bankruptcy Code;

provided that a Secured Creditor shall have the right to credit bid its allowed claim only with

respect to the collateral by which such Secured Creditor is secured; provided further that any

Secured Creditor’s ability to credit bid its allowed claim is subject to the Committee’s challenge

rights and any investigations by the Committee or the Debtors into claims held by the Debtors

against HBC US Holdings LLC and HBC US Propco Holdings LLC.

Notwithstanding anything to the contrary herein, each of the Prepetition ABL Lenders and

the Prepetition Term Lenders, shall be deemed to be a Qualified Bidder and, subject to

section 363(k) of the Bankruptcy Code, may submit a credit bid of all or any portion of the

aggregate amount of such Prepetition ABL Lenders’ of Prepetition Term Lenders’ secured claims

pursuant to section 363(k) at any time during the Auction and any such credit bid will be

considered a Qualified Bid, unless otherwise ordered by the Court for cause.

Any credit bid submitted by a Secured Creditor shall include cash consideration sufficient

to pay in full all claims secured by liens on the collateral Assets included in such credit bid that

are senior in priority to those of the party seeking to credit bid (unless such senior lien holder

consents to alternative treatment).



11

VII. STALKING HORSE BID AND BID PROTECTIONS.

Upon entry of the Order, the Debtors shall be authorized, but not obligated, in an exercise

of their business judgment and upon consultation with the Consultation Parties to (a) select one or

more Acceptable Bidders to act as a stalking horse bidder (the “Le Tote Stalking Horse Bidder” or

the “Lord & Taylor Stalking Horse Bidder,” as applicable, and each, a “Stalking Horse Bidder”)

in connection with the Auctions and (b) in connection with any staking horse agreement with a

stalking horse bidder, provide such Stalking Horse Bidder(s) certain bid protections, including an

expense reimbursement, work fee, and/or a break-up fee (the “Bid Protections”); provided that the

Debtors shall seek approval of any Bid Protections at the Sale Hearings, as applicable; provided

further that Bid Protections for any Stalking Horse Bidder(s) that may be selected shall not exceed

three (3) percent of any cash amount of any proposed purchase price; provided further that such

Stalking Horse Bidder shall not be an insider; provided further that the Debtors will provide

expense reimbursement only to the Stalking Horse Bidder and such expenses must be reasonable,

documented, and subject to review by the Debtors and the Notice Parties, who shall have the right

to review upon 14 days’ notice and shall have the right to raise objections during that time to be

heard at the Sale Hearings, as applicable.

In the event the Debtors select one or more Stalking Horse Bidders, the Debtors will file a

supplemental notice (the “Stalking Horse Notice”) with the Court no later than seven (7) days prior

to the applicable Auction, identifying the key terms of the agreement, including the terms and

conditions for payment of any Bid Protections and the Stalking Horse APA. The Debtors will also

cause the Stalking Horse Notice to be served on the Notice Parties, who shall have the right to

raise objections to the selection of the Stalking Horse Bidder or any Bid Protections prior to the

Le Tote Sale Objection Deadline or the Lord & Taylor Sale Objection Deadline (each as defined

in the Order), as applicable, which objections shall be heard at the applicable Sale Hearing.

VIII. THE AUCTIONS.

If the Debtors receive two or more Qualified Bids in connection with the Le Tote Sale

and/or the Lord & Taylor Sale, the Debtors shall conduct the Auction(s) to determine the

Successful Bidder(s) with respect to such Assets. If only one Qualified Bid is submitted with

respect to each Sale, the Debtors may adjourn or cancel the Auctions and may decide, in their

reasonable business judgment without further approval of the Court, but in consultation with the

Consultation Parties, to designate such Qualified Bids as the Successful Bids. If no Qualified Bids

are submitted, the Debtors may adjourn or cancel the Auctions.

Absent the Debtors’ selection of a stalking horse bid pursuant to Section VIII above, no

later than two (2) days prior to the Auction, the Debtors will notify all Qualified Bidders of the

highest or otherwise best Qualified Bid, as determined in the Debtors’ reasonable business

judgment and in consultation with the Consultation Parties (the “Baseline Bid”), and provide

copies of the Bid Documents supporting the Baseline Bid to all Qualified Bidders. The

determination of which Qualified Bid constitutes the Baseline Bid shall take into account any

factors the Debtors reasonably deem relevant, in consultation with the Consultation Parties, to the

value of the Qualified Bid to the Debtors’ estates, including, but not limited to, among other things:

(i) the number, type, and nature of any changes to the applicable Form Purchase Agreement

requested by the Qualified Bidder, including the type and portion of the Assets sought and the



12

obligations to be assumed in the Qualified Bid; (ii) the amount and nature of the total consideration;

(iii) the net economic effect of any changes to the value to be received by the Debtors’ estates from

the transactions contemplated by the Bid Documents; (iv) the tax consequences of such Qualified

Bid; and (v) the ability and likelihood to close the transaction contemplated by the Qualified Bid

(collectively, the “Bid Assessment Criteria”).

A. Auction Participation

1. Time, Date and Location of Auction; Adjournment of Auction;

Appearance of Qualified Bidders at Auction. The Le Tote Auction shall

take place at 10:00 a.m. (prevailing Eastern Time) on September 24, 2020,

by videoconference or such other form of remote communication

established by the Debtors. The Lord & Taylor Auction shall take place at

10:00 a.m. (prevailing Eastern Time) on October 6, 2020, by

videoconference or such other form of remote communication established

by the Debtors. If the Auction(s) is adjourned, the Debtors shall provide

notice to the Notice Parties and Qualified Bidders and post notice of such

change on the Debtors’ case website: https://cases.stretto.com/LeTote. The

Debtors shall have the right to conduct any number of Auctions on that date

to accommodate multiple bids that comprise a single Qualified Bid, if the

Debtors determine, in their reasonable business judgment and upon

consultation with the Consultation Parties, that conducting such auctions

would be in the best interests of the Debtors’ estates.

2. Participants and Attendees.3 Only Qualified Bidders are eligible to

participate in the Auction, subject to other limitations as may be reasonably

imposed by the Debtors in accordance with these Bidding Procedures.

Qualified Bidders participating in the Auction must appear in person at the

Auction, or through a duly authorized representative. The Auction will be

conducted openly and all creditors may be permitted to attend; provided,

that the Debtors may, in their sole and exclusive discretion, establish a

reasonable limit on the number of representatives and/or professional

advisors that may appear on behalf of or accompany each Qualified Bidder

or creditor at the Auction. Any creditor wishing to attend the Auction may

do so by contacting, no later than three (3) business days prior to the start

of the Auction, the Debtors’ advisors.

3 Permitted Attendees. Unless the Court orders or directs otherwise, only the Debtors’ representatives, any other

parties that the Debtors have invited specifically, and any Qualified Bidders and the professionals for each of the

foregoing shall be entitled to attend the Auction; provided that only Qualified Bidders shall be entitled to bid at

the Auction. Any permitted attendee may attend the Auction telephonically; provided, further, that such permitted

attendee must provide actual notice to Nfluence, in its capacity as the Debtors’ proposed investment banker, that

it will make a telephonic appearance at least three (3) business day prior to the Auction. Notwithstanding any of

the foregoing, the Consultation Parties and their professionals shall be entitled to attend the Auction.



13

B. Auction Procedures.

The Debtors (in consultation with their advisors) shall direct and preside over the Auctions.

At the start of each Auction, the Debtors shall describe the terms of the applicable Baseline Bid.

All incremental Bids made thereafter shall be Overbids (as defined below) and shall be made and

received on an open basis in the presence of all other Qualified Bidders, and all material terms of

each Overbid shall be fully disclosed to all other Qualified Bidders. All Qualified Bidders shall

have the right to submit additional bids and make modifications to any prior Qualified Bid or

Overbid at the applicable Auction to improve their bids; provided that any Overbid made by a

Qualified Bidder (including with respect to any Backup Bid (as defined below) must remain open

and binding on the Qualified Bidder until and unless the Debtors accept a higher or otherwise

better Qualified Bid as the Leading Bid (as defined below)). The Debtors may, in their reasonable

business judgment, negotiate with any and all Qualified Bidders participating in the Auction. The

Debtors shall maintain a written transcript of the Auction and of all Bids made and announced at

the Auction, including the Baseline Bid, all Overbids, and the Successful Bid (as defined below).

The Auctions shall be governed by the following procedures, subject to the Debtors’ right

to modify such procedures in their reasonable business judgment:

1. Baseline Bid as Price Floor. Bidding shall commence at the amount of the

Baseline Bid.

2. Initial Overbid; Minimum Overbid. Qualified Bidders may submit

successive Bids higher than the previous Bid, based on and increased from

the Baseline Bid for the relevant Assets (each such Bid, an “Overbid”). Any

Qualified Bidder’s initial Overbid and each subsequent Overbid shall be at

least a 1.5% increase in cash, cash equivalents, or such other consideration

that the Debtors deem equivalent, over the previous price (a “Minimum

Overbid”). The Debtors may, in their reasonable business judgment,

announce increases or reductions to the Minimum Overbid at any time

during the Auction. For the avoidance of doubt, each successive Bid that a

Qualified Bidder may submit at the Auction must contain a Purchase Price

in cash, cash equivalents, or such other consideration that the Debtors deem

equivalent that exceeds the then existing highest Bid by at least the

Minimum Overbid Amount.

3. Announcement of Rules. At the commencement of the Auctions, the

Debtors may announce procedural and related rules governing the Auctions,

including time periods available to all Qualified Bidders to submit

successive bid(s).

4. Overbid Alterations. An Overbid may contain alterations, modifications,

additions, or deletions of any terms of the Bid no less favorable to the

Debtors’ estates than any prior Qualified Bid or Overbid, as determined

in the Debtors’ business judgment, but shall otherwise comply with the

terms of these Bidding Procedures.



14

5. Highest or Best Offer. After the first round of bidding and between each

subsequent round of bidding, the Debtors shall announce the Bid that they

believe in their reasonable business judgment and upon consultation with

their advisors and the Consultation Parties to be the highest or otherwise

best offer for the relevant Assets (the “Leading Bid”). Each round of

bidding will conclude after each participating Qualified Bidder has had the

opportunity to submit a subsequent Bid with full knowledge of the Leading

Bid.

6. Rejection of Bids. The Debtors, in their reasonable business judgment, in

consultation with the Consultation Parties, may reject, at any time before

entry of an order of the Court approving a Successful Bid, any Bid that the

Debtors determine is (a) inadequate or insufficient, (b) not in conformity

with the requirements of the Bankruptcy Code, these Bidding Procedures,

or the terms and conditions of the Sale, or (c) contrary to the best interests

of the Debtors, their estates, their creditors, and other stakeholders.

7. Additional Information. The Debtors have the right to request any

additional information that will allow the Debtors to make a reasonable

determination as to a Qualified Bidder’s financial and other capabilities to

consummate the transactions contemplated by their proposal and any

further information that the Debtors believe is reasonably necessary to

clarify and evaluate any Bid made by a Qualified Bidder during the

Auctions.

8. Modification of Procedures. The Debtors may (in consultation with the

Consultation Parties) announce at the Auctions modified or additional

procedures for conducting the Auctions or otherwise modify these Bidding

Procedures.

9. No Collusion. Each Qualified Bidder participating at the Auction will be

required to confirm on the record at the Auction that (a) it has not engaged

in any collusion with respect to the bidding and (b) its Qualified Bid is a

good-faith bona fide offer and it intends to consummate the proposed

transaction if selected as the Successful Bidder.

C. Adjournment of the Auctions.

The Debtors reserve the right, in their reasonable business judgment and upon consultation

with the Consultation Parties, to adjourn the either of the Auctions one or more times to, among

other things, (i) facilitate discussions between the Debtors and Qualified Bidders, (ii) allow

Qualified Bidders to consider how they wish to proceed, and (iii) provide Qualified Bidders the

opportunity to provide the Debtors with such additional evidence as the Debtors, in their

reasonable business judgment, may require, that the Qualified Bidder has sufficient internal

resources or has received sufficient non-contingent debt or equity funding commitments to

consummate the proposed Sale Transaction(s) at the prevailing Bid amount.



15

D. Successful Bidder.

Immediately prior to the conclusion of each Auction, the Debtors shall: (i) determine,

consistent with these Bidding Procedures and upon consultation with their advisors and the

Consultation Parties, which Bid constitutes the highest or otherwise best bid(s) for the applicable

Assets (each such Bid, a “Successful Bid”) using the Bid Assessment Criteria; and (ii) notify all

Qualified Bidders at the Auction for the applicable Assets of the identity of the Qualified Bidder

that submitted the Successful Bid (each such Qualified Bidder, the “Successful Bidder”) and the

amount of the Purchase Price and other material terms of the Successful Bid.

The Debtors shall file a notice identifying the Successful Bidder and Backup Bidder (if

selected) within two (2) business days after the conclusion of the applicable Auction, or as soon

as reasonably practicable thereafter.

E. Backup Bidder.

Notwithstanding anything in these Bidding Procedures to the contrary, if the Auctions are

conducted, with respect to each Sale, the Qualified Bidder with the next-highest or otherwise

second-best Qualified Bid at the Auctions for the Le Tote Assets, the Lord & Taylor Assets, and/or

the excluded Assets, as determined by the Debtors in the exercise of their reasonable business

judgment (the “Backup Bid”), shall be required to serve as a backup bidder, and upon consultation

with the Consultation Parties (the “Backup Bidder”), and each Qualified Bidder shall agree and be

deemed to agree to be the Backup Bidder if so designated. The terms of the Backup Bid shall be

acceptable to the Consultation Parties and shall, among other things, provide for cash proceeds in

an amount sufficient to repay in full in cash the outstanding Senior Prepetition Obligations (as

defined in the Cash Collateral Orders), to the extent any Senior Prepetition Obligations are still

outstanding.

The identity of the Backup Bidder and the amount and material terms of the Qualified Bid

of the Backup Bidder shall be announced by the Debtors at the conclusion of the Auction at the

same time the Debtors announce the identity of the Successful Bidder.

Notwithstanding anything to the contrary contained in these Bidding Procedures, in the

event that a Successful Bidder(s) cannot or does not consummate the Sale and a Backup Bidder(s)

has been previously identified, the Debtors shall (i) file and serve Notice of Intent To Proceed with

Backup Bid, and (ii) schedule a telephonic status conference, which may be expedited, upon

reasonable notice under the circumstances (which shall be no less than three (3) court days), at

which time a briefing and hearing schedule will be established for those landlords and

counterparties to executory contracts that do not consent to a proposed assumption and assignment

to the Backup Bidder(s). The Backup Bidder(s), as identified in the Notice of Results of Auction,

shall not be considered or approved at the Sale Hearing nor shall affected landlords or

counterparties be required to object to Backup Bidder(s) prior to the filing and service of the Notice

of Intent To Proceed with Backup Bid.

IX. ACCEPTANCE OF SUCCESSFUL BID.

The Debtors’ presentation of a particular Successful Bid to the Court for approval does not

constitute the Debtors’ acceptance of such Qualified Bid. The Debtors will be deemed to have



16

accepted a Bid only when the Bid has been approved by the Court at the Sale Hearings (as defined

below). The Debtors shall seek approval by the Court to consummate the Backup Bid, solely in

the event the Successful Bidder fails to close the transaction as required and with all rights reserved

against the Successful Bidder.

X. FREE AND CLEAR OF ANY AND ALL ENCUMBRANCES.

Except as provided for in a Successful Bidder’s Form Purchase Agreement, all rights, titles

and interests in and to the Assets subject thereto shall be sold free and clear of all liens, claims,

interests, and encumbrances (collectively, the “Encumbrances”), subject only to the Assumed

Liabilities (as defined in the Successful Bidder’s purchase agreement), if any, in accordance with

Bankruptcy Code section 363(f), with such Encumbrances to attach to the net proceeds (if any)

received by the Debtors from the Sale of the Assets in accordance with the Bankruptcy Code,

applicable nonbankruptcy law and any prior orders of the Court.

XI. COMMISSIONS.

The Debtors shall be under no obligation to pay commission to any agent(s), advisor(s), or

broker(s), except with respect to Nfluence as investment banker. All commissions, fees, or

expenses for agents, other than Nfluence, may be paid by bidders at such bidder’s discretion. In

no case shall any commissions, fees, or expenses be deducted from any proceeds derived from the

Sales of the Assets or the agreed Successful Bid other than to the extent set forth in the Order.

XII. NOTICE PARTIES.

The term “Notice Parties” as used in these Bidding Procedures shall mean:

(i) proposed counsel to the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue,

New York, New York 10022, Attn: Marshall Shaffer

([email protected]), William Halaby ([email protected])

and Christian Atwood ([email protected]), and

Kirkland & Ellis LLP, 300 North LaSalle Street, Chicago, Illinois 60654,

Attn: David L. Eaton ([email protected]) and Jaimie Fedell

([email protected]);

(ii) proposed co-counsel to the Debtors, Kutak Rock LLP, 901 East Byrd Street,

Suite 1000, Richmond, Virginia, 23219, Attn: Michael Condyles

([email protected]), Peter Barrett ([email protected]),

Jeremy Williams ([email protected]), and Brian Richardson


(iii) the Debtors’ proposed investment banker, Nfluence Partners, 160 Spear Street,

Suite 1230, San Francisco, California 94105, Attn: Gary Moon

([email protected]), Monica Mariani

([email protected]), and Guarav Gaitonde




17

(iv) counsel to the Prepetition ABL Lenders, Otterbourg P.C., 230 Park Avenue, New

York, New York 10169, Attn: Daniel F. Fiorillo ([email protected]) and

Chad B. Simon ([email protected]);

(v) counsel to the Prepetition Term Lenders, Choate Hall & Stewart LLP,

2 International Place, Boston, Massachusetts 02110, Attn: Kevin J. Simard

([email protected]) and Hampton Foushee ([email protected]);

(vi) counsel to the Committee, Cooley LLP, 55 Hudson Yards, New York, New York,

10001. Attn: Cullen D. Speckhart ([email protected]); Jay Indyke

([email protected]); and Paul J. Springer ([email protected]);

(vii) counsel for the CMBS Trust, Jeffer Mangels Butler & Mitchell LLP,

2 Embarcadero Center, 5th Floor, San Francisco, California 94111, Attn: Robert

B. Kaplan ([email protected]) and Nicolas De Lancie ([email protected]), and

Zemanian Law Group, 223 East City Hall Avenue, Suite 201, Norfolk, Virginia

23510, Attn: Paul Driscoll ([email protected]);

(viii) all parties who have expressed a written interest in all or some of the Le Tote Assets

and/or Lord & Taylor Assets;

(ix) any party that has requested notice pursuant to Bankruptcy Rule 2002; and

(x) the United States Trustee for the Eastern District of Virginia, 701 East Broad Street,

Suite 4304, Attn: Kathryn R. Montgomery ([email protected]) and

Lynn A. Kohen ([email protected]).

XIII. SALE HEARINGS.

The Hearing to consider approval of the Sale of the Le Tote Assets to the Successful

Bidder(s), or Backup Bidder(s) (if applicable) (the “Le Tote Sale Hearing”) is currently scheduled

to take place on September 30, 2020, at 10:00 a.m., (prevailing Eastern Time), before the

Honorable Keith L. Phillips, at the United States Bankruptcy Court for the Eastern District of

Virginia, Richmond Division, 701 East Broad Street, Suite 4000, Richmond, Virginia 23219, or

such other date and time that the Court may later direct and as agreed upon by the Debtors.

The Hearing to consider approval of the Sale of the Lord & Taylor Assets to the Successful

Bidder(s), or Backup Bidder(s) (if applicable) (the “Lord & Taylor Sale Hearing,” and, together

with the Le Tote Sale Hearing, the “Sale Hearings”) is currently scheduled to take place on

October 15, 2020, at 10:00 a.m., (prevailing Eastern Time), before the Honorable

Keith L. Phillips, at the United States Bankruptcy Court for the Eastern District of Virginia,

Richmond Division, 701 East Broad Street, Suite 4000, Richmond, Virginia 23219, or such other

date and time that the Court may later direct and as agreed upon by the Debtors.

The Sale Hearings may be continued to a later date by the Debtors (in consultation

with the Consultation Parties) by sending notice prior to, or making an announcement at,

the Sale Hearings. No further notice of any such continuance will be required to be provided

to any party.



18

XIV. RETURN OF DEPOSIT.

The Deposit of the Successful Bidder shall be applied to the Purchase Price of such

transaction at closing. The Deposits for each Qualified Bidder shall be held in one or more

accounts on terms acceptable to the Debtors in their sole discretion and shall be returned (other

than with respect to the Successful Bidder and the Backup Bidder) on or before the date that is

five (5) business days after the Auction.

The Backup Bidder’s Deposit shall be held in escrow until the closing of the applicable

Sale with the Successful Bidder. In the event the Successful Bidder fails to consummate the Sale

Transaction(s) set forth in the Successful Bid and the Debtors opt to close on the Sale

Transaction(s) set forth in the Backup Bid, the Backup Bidder’s Deposit shall be applied to the

Purchase Price of such transaction(s) at closing. In the event of a breach or failure to consummate

a Sale by the Successful Bidder or the Backup Bidder, as applicable, the defaulting Successful

Bidder’s Deposit or Backup Bidder’s Deposit, as applicable, shall be forfeited to the Debtors, and

the Debtors specifically reserve the right to seek all available remedies against the defaulting

Successful Bidder or Backup Bidder, as applicable.

XV. RESERVATION OF RIGHTS.

The Debtors reserve their rights to modify these Bidding Procedures in their reasonable

business judgment and upon consultation with the Consultation Parties in any manner that will

best promote the goals of the bidding process, or impose, at or prior to the conclusion of the

Auctions, additional customary terms and conditions on the Sale of the Assets, including, without

limitation: (i) extending the deadlines set forth in these Bidding Procedures; (ii) adjourning the

Auctions at the Auctions and/or adjourning the Sale Hearings without further notice; (iii) adding

procedural rules that are reasonably necessary or advisable under the circumstances for conducting

the Auctions; (iv) canceling the Auctions; and (v) rejecting any or all Bids or Qualified Bids.

XVI. CONSENT TO JURISDICTION.

All Potential Bidders, Acceptable Bidders, and Qualified Bidders shall be deemed to have

consented to the exclusive jurisdiction of the Court and waived any right to a jury trial in

connection with any disputes relating to the Auction, the construction and enforcement of these

Bidding Procedures, and/or the Bid Documents, as applicable.

XVII. FIDUCIARY OUT.

Nothing in these Bidding Procedures shall require the Debtors’ management or board of

directors to take any action or to refrain from taking any action with respect to these Bidding

Procedures when the Debtors’ management or board of directors determine, based on the advice

of their counsel, that taking such action or refraining from taking such action, as applicable, is

required to comply with applicable law or their fiduciary obligations under applicable law.



United States Bankruptcy Court

Eastern District of Virginia

In re: Case No. 20-33332-KLP

Le Tote, Inc. Chapter 11

Debtor(s)

CERTIFICATE OF NOTICEDistrict/off: 0422-7 User: stehlem Page 1 of 4

Date Rcvd: Oct 22, 2020 Form ID: pdford9 Total Noticed: 1

The following symbols are used throughout this certificate:Symbol Definition

+ Addresses marked '+' were corrected by inserting the ZIP, adding the last four digits to complete the zip +4, or replacing an incorrect ZIP. USPSregulations require that automation-compatible mail display the correct ZIP.

Notice by first class mail was sent to the following persons/entities by the Bankruptcy Noticing Center on Oct 24, 2020:

NONE

Notice by electronic transmission was sent to the following persons/entities by the Bankruptcy Noticing Center.Electronic transmission includes sending notices via email (Email/text and Email/PDF), and electronic data interchange (EDI). Electronic transmission is in EasternStandard Time.

Recip ID Notice Type: Email Address Date/Time Recipient Name and Addresssmg + Email/Text: [email protected]

Oct 23 2020 02:52:00 UST smg Richmond, Office of the U. S. Trustee,701 East Broad St., Suite 4304, Richmond, VA23219-1849

TOTAL: 1

BYPASSED RECIPIENTS The following addresses were not sent this bankruptcy notice due to an undeliverable address, *duplicate of an address listed above, *P duplicate of apreferred address, or ## out of date forwarding orders with USPS.

NONE

NOTICE CERTIFICATIONI, Joseph Speetjens, declare under the penalty of perjury that I have sent the attached document to the above listed entitiesin the manner shown, and prepared the Certificate of Notice and that it is true and correct to the best of my information andbelief.

Meeting of Creditor Notices only (Official Form 309): Pursuant to Fed .R. Bank. P.2002(a)(1), a notice containing thecomplete Social Security Number (SSN) of the debtor(s) was furnished to all parties listed. This official court copy containsthe redacted SSN as required by the bankruptcy rules and the Judiciary's privacy policies.

Date: Oct 24, 2020 Signature: /s/Joseph Speetjens

CM/ECF NOTICE OF ELECTRONIC FILINGThe following persons/entities were sent notice through the court's CM/ECF electronic mail (Email) system on October 22, 2020 at the address(es) listedbelow:

Name Email Address

Andrew B. Buxbaumon behalf of Creditor Taubman Landlords [email protected]

Andrew B. Buxbaumon behalf of Creditor Cigna Health and Life Insurance Company and Cigna Dental Health [email protected]

Andrew B. Buxbaumon behalf of Creditor BP Prucenter Acquisition LLC [email protected]

Andrew S. Conwayon behalf of Creditor Taubman Landlords [email protected]

Annemarie DiNardo Cleary


District/off: 0422-7 User: stehlem Page 2 of 4


on behalf of Counsultant Gordon Brothers Retail Partners LLC [email protected],[email protected]

Annemarie DiNardo Clearyon behalf of Counsultant Hilco Merchant Resources LLC [email protected], [email protected]

Brian H. Richardsonon behalf of Plaintiff Lord & Taylor LLC [email protected], [email protected]

Brian H. Richardsonon behalf of Debtor Le Tote Inc. [email protected], [email protected]

Christopher A. Joneson behalf of Creditor HBC [email protected] [email protected],[email protected]

Cullen Drescher Speckharton behalf of Creditor Committee The Official Committee of Unsecured Creditors of Le Tote Inc., et al [email protected],[email protected]

Darrell William Clarkon behalf of Creditor B.H. Multi Color Corp. d/b/a Effy [email protected] [email protected]

Darrell William Clarkon behalf of Creditor B.H. Multi Com Corp. d/b/a Effy [email protected] [email protected]

Darrell William Clarkon behalf of Creditor Richline Group Inc. [email protected], [email protected]

Darrell William Clarkon behalf of Creditor LeVian Corp. [email protected] [email protected]

Donald C. Schultzon behalf of Interested Party Le Tote Inc. [email protected],[email protected];[email protected];[email protected]

Donald K. Ludmanon behalf of Creditor SAP America Inc. [email protected]

Douglas B. Rosneron behalf of Creditor BP Prucenter Acquisition LLC [email protected]

Douglas M. Foleyon behalf of Creditor Carlyle Global Credit Investment Management LLC [email protected] [email protected];[email protected]

Harlan Mitchell Lazaruson behalf of Creditor XCEL BRANDS [email protected] [email protected]

James Christopher Lanikon behalf of Creditor Hanesbrands Inc. [email protected]

James K. Donaldsonon behalf of Creditor Brookfield Properties Retail Inc. [email protected]

James K. Donaldsonon behalf of Interested Party QIC Properties US Inc. [email protected]

Jennifer Ellen Wuebkeron behalf of Interested Party CAPITAL ONE N.A. [email protected], [email protected]

Jeremy S. Williamson behalf of Debtor Lord & Taylor LLC [email protected] [email protected];[email protected]

Jeremy S. Williamson behalf of Debtor LT Card Company LLC [email protected] [email protected];[email protected]

Jeremy S. Williamson behalf of Debtor Le Tote LLC [email protected],[email protected];[email protected]

Jeremy S. Williamson behalf of Debtor French Tote LLC [email protected] [email protected];[email protected]

Jeremy S. Williamson behalf of Plaintiff Lord & Taylor LLC [email protected],[email protected];[email protected]

Jeremy S. Williamson behalf of Debtor Le Tote Inc. [email protected],[email protected];[email protected]




John M. Craigon behalf of Creditor Rochester Gas & Electric Corporation [email protected] [email protected]

John M. Craigon behalf of Creditor Florida Power & Light Company [email protected] [email protected]

John M. Craigon behalf of Creditor Jersey Central Power & Light Company [email protected] [email protected]

John M. Craigon behalf of Creditor Connecticut Light & Power Company [email protected] [email protected]

John M. Craigon behalf of Creditor PECO Energy Company [email protected] [email protected]

John M. Craigon behalf of Creditor NStar Gas Company [email protected] [email protected]

John M. Craigon behalf of Creditor Yankee Gas Services Company [email protected] [email protected]

John M. Craigon behalf of Creditor KeySpan Energy Delivery Long Island [email protected] [email protected]

John M. Craigon behalf of Creditor Public Service Electric and Gas Company [email protected] [email protected]

John M. Craigon behalf of Creditor Constellation NewEnergy Inc. [email protected], [email protected]

John M. Craigon behalf of Creditor Niagara Mohawk Power Corporation [email protected] [email protected]

John M. Craigon behalf of Creditor The Potomac Electric Power Company [email protected] [email protected]

John M. Craigon behalf of Creditor NStar Electric Company [email protected] [email protected]

John M. Craigon behalf of Creditor Consolidated Edison Company of New York Inc. [email protected], [email protected]

John M. Craigon behalf of Creditor Commonwealth Edison Company [email protected] [email protected]

John M. Craigon behalf of Creditor Boston Gas Company [email protected] [email protected]

John P. Fitzgerald, [email protected]

John Thomas Morris Whitemanon behalf of Creditor Missouri department of revenue [email protected]

Katherine A. Kakishon behalf of Creditor State of Michigan Department of Treasury [email protected]

Kathryn R. Montgomeryon behalf of U.S. Trustee John P. Fitzgerald III [email protected]

Kristen N. Pateon behalf of Creditor Brookfield Properties Retail Inc. [email protected]

Lisa Hudson Kimon behalf of Creditor Federal Realty Investment Trust [email protected] [email protected]

Lisa Hudson Kimon behalf of Creditor The Macerich Company [email protected] [email protected]

Lisa Hudson Kimon behalf of Creditor Pyramid Management Group LLC [email protected], [email protected]

Michael A. Condyleson behalf of Debtor LT Card Company LLC [email protected] [email protected];[email protected]

Michael A. Condyleson behalf of Debtor Lord & Taylor LLC [email protected] [email protected];[email protected]

Michael A. Condyleson behalf of Debtor Le Tote Inc. [email protected],[email protected];[email protected]




Michael A. Condyleson behalf of Debtor French Tote LLC [email protected] [email protected];[email protected]

Michael A. Condyleson behalf of Debtor Le Tote LLC [email protected],[email protected];[email protected]

Michael D. Muelleron behalf of Creditor Wells Fargo Bank National Association [email protected],[email protected];[email protected];[email protected]

Nicholas S. Herronon behalf of U.S. Trustee John P. Fitzgerald III [email protected], [email protected]

Paul A. Driscollon behalf of Creditor WILMINGTON TRUST NATIONAL ASSOCIATION, as Trustee in Trust for Holders of HUDSONSBAY SIMON JV TRUST 2015-HBS, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2015-HBS,through Situs Holdings [email protected], [email protected]

Peter J. Barretton behalf of Debtor Le Tote Inc. [email protected], [email protected];[email protected]

Richard E. Learon behalf of Creditor Mazza Family Friendship Heights LLC [email protected] [email protected]

Ronald M. Tuckeron behalf of Creditor Simon Property Group Inc. [email protected], [email protected]

Shannon Pecoraroon behalf of U.S. Trustee John P. Fitzgerald III [email protected],[email protected];[email protected]

Stephen A. Metzon behalf of Creditor Simon Property Group Inc. [email protected], [email protected]

Tara L. Elgieon behalf of Interested Party CAPITAL ONE N.A. [email protected], [email protected];[email protected]

William A. Brosciouson behalf of Creditor SAP America Inc. [email protected]

TOTAL: 68


KUTAK ROCK LLP

Documents

Transcript of KUTAK ROCK LLP