Common use of Bankruptcy Court Approval of Sale Procedures Clause in Contracts

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof (and in no event later than one (1) Business Day thereafter), Seller will file a motion (the "SALE PROCEDURE MOTION") with the Bankruptcy Court requesting the entry of the Bidding Procedure Order (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARING") to approve Seller's consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTION") to be held one to three days before the Approval Hearing at which higher and better offers may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's deposit, then Purchaser will be entitled to receive from Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by Purchaser) in cash or other immediately available good funds in the amount of $2,000,000, (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAK-UP FEE"), which payments shall be made to Purchaser concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their deposit, (iv) no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Official Committee's investment advisors, BDO Seidxxx XXX (v) no prospective purchaser who bids for the Purchased Assets at Auction shall be entitled to purchase the Purchased Assets unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets for consideration which is greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (v) after any initial overbid, all further overbids must be in increments of at least $500,000.00. Should overbidding take place, Purchaser shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Hearing based upon any such overbid. Following the filing of the Sale Procedure Motion, Seller shall use its best efforts to obtain the Bidding Procedures Order. Seller agrees that the Break-Up Fee is in the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets.

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof Execution Date (and in no event later than one (1) Business Day four days thereafter), the Seller will serve and file a motion with a proposed order in the form attached hereto as Exhibit G (the "SALE PROCEDURE MOTION"“Sale Procedure Motion”) with the Bankruptcy Court requesting the entry of an order (the Bidding “Procedure Order Order”) (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARING"“Approval Hearing”) to approve Seller's ’s consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTION"“Auction”) to be held one to three days before at the Approval Hearing offices of Seller’s counsel or at the Bankruptcy Court at which higher and better offers may be presented to Sellerthe Seller or the Bankruptcy Court, (iii) providing that that, if Seller receives from a third party a higher and better offer at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's depositterms, then Purchaser Buyer will be entitled to receive from the Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by Purchaser) in cash or other immediately available good funds in equal to the amount lesser of $2,000,000, (x) reimbursement of Purchaser for its Buyer’s actual out-of-pocket expenses incurred in connection with this transaction, up to a maximum of the Purchase Agreement and Approval Hearing or $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAK-UP FEE")105,000, which payments payment shall be made to Purchaser the Buyer concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their depositand shall be an administrative expense in the case, (iv) providing that no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "“financially qualified" ” by the Official Committee's investment advisorsSeller, BDO Seidxxx XXX (v) no prospective purchaser who bids for the Purchased Assets at Auction shall be entitled to purchase the Purchased Assets unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets for consideration which is at least $125,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, Closing Payment and otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) after any initial overbid, all further overbids must be in increments of at least $500,000.00100,000, and (vii) providing that any prospective bidder must bid for the Assets based on a form of contract substantially similar to this Agreement. Service of the Sale Procedure Motion shall be upon those parties designated in Bankruptcy Rule 6004(c) and upon all other parties who Seller, in its sole discretion, reasonably believes might assert claims on the Assets sold or against the Buyer after the entry of the Approval Order. Should overbidding take place, Purchaser the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Approval Hearing based upon any such overbidif it submits the highest and best bid under the bidding procedures. Following the filing of the Sale Procedure Motion, the Seller shall use its best reasonable efforts to obtain the Bidding Procedures Order. Seller agrees that Procedure Order (the Break-Up Fee date on which the Procedure Order is in entered and becomes final is referred to herein as the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets“Sale Procedure Date”).

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof (and in no event later than one (1) Business Day thereafter)Execution Date, the Seller will file a motion (the "SALE PROCEDURE MOTIONSale Procedure Motion") with the Bankruptcy Court requesting the entry of an order (the Bidding "Procedure Order Order") no later than 5:00 p.m., Eastern time, two (2) business days after the Execution Date (i) fixing requesting expedited hearings on the Sale Procedure Motion and the Sale Motion (as hereinafter defined), (ii) requesting the Bankruptcy Court to fix the time, date, and location of a hearing (the "APPROVAL HEARINGApproval Hearing") to approve the Seller's consummation of this Agreement, (iiiii) fixing requesting the time approval of the assignment and date assumption of an auction (the "AUCTION") to be held one to three days before the Approval Hearing at which higher certain executory contracts or agreements and better offers may be presented to Sellerrejecting certain executory contracts or agreements, if necessary, (iiiiv) providing that if the Seller receives solicits bids (whether voluntarily or at the direction of the Bankruptcy Court) from a third party a higher and better offer at the Auctionparty, and such third party shall be pre-qualified by depositing with the Seller's bankruptcy counsel no later than 24 hours prior to the submission of such bid an amount equal to the Deposit and such offer is for a purchase price for the Property that is greater than the Purchase Price and is subsequently approved by the Bankruptcy Court and closes as provided by its terms but in no event later than the earlier of ten (10) days after Bankruptcy Court approval or does not close two (2) business days after the Approval Order becomes final and Seller is entitled to retain such third party's depositnon-appealable, then Purchaser will be entitled to receive from the Seller (w) shall pay the Buyer at such closing a flat fee payment (not dependent on amounts actually expended or incurred by Purchaser) in cash or other immediately available good funds in the amount of $2,000,000550,000.00, (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAK-UP FEE"), which payments shall be made to Purchaser concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their deposit, (iv) no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Official Committee's investment advisors, BDO Seidxxx XXX (v) providing that if the Seller receives a bid from a third party, the Seller shall provide a copy of such bid to the Buyer within 24 hours of the receipt of such bid, (vi) providing that no prospective purchaser who bids for the Purchased Assets at Auction Property shall be entitled to purchase the Purchased Assets Property unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase all the Purchased Assets Property, and the purchase is for consideration which is greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, 6,150,000 and otherwise on terms at least as favorable to the Seller as those set forth in this AgreementAgreement (an "Outbid"), and (vvii) providing that after any initial overbidOutbid, all further overbids Outbids must be in increments of at least $500,000.0050,000, (viii) noting that the holders of the majority of the bonds of the Seller joins with the Seller in submitting the Sale Procedure Motion and the Sale Motion, and approving the procedures specified in Sections 7.1 and 8. Should overbidding bidding take place, Purchaser the Buyer shall have the right, but not the obligation, to participate in the overbidding bidding and to be approved as the overbidder highest bidder at the Approved Approval Hearing based upon any such overbidOutbid. Following the filing of the Sale Procedure Motion, the Seller shall use its Seller's best efforts to obtain the Bidding Procedures Order. Seller agrees that Procedure Order (the Break-Up Fee date on which the Procedure Order is in entered and becomes final is referred to herein as the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets"Sale Procedure Date").

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof (and in no event later than one (1) Business Day thereafter), Seller will file has filed a motion (the "SALE PROCEDURE MOTIONSale Procedure Motion") with the Bankruptcy Court requesting and shall use reasonable efforts to obtain the entry of an order (the Bidding Procedure Order "Procedures Order") (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARINGApproval Hearing") to approve Seller's Sellers' consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTIONAuction") to be held one to three days before the Approval Hearing at Young Conaway Stargatt & Taylor, LLP, Eleventh Floor, Wilmington Xxxxx Xenter, 1100 Xxxxx Market Street, Wilmington, Delaware, at which higher and better offers hixxxx xxx xxxxxx xxxxxx xx xxxxxxxx xxx Xxxxxxxd Assets may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer to purchase the Acquired Assets at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's depositterms, then Purchaser Buyer will be entitled to receive from Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by PurchaserBuyer) in cash or other immediately available good funds in the amount of $2,000,000, three percent (x3%) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum the aggregate of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and the Purchase Price (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAKBreak-UP FEEUp Fee"), ) which payments payment shall be made to Purchaser Buyer concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their deposit, and (iv) no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Official Committee's investment advisors, BDO Seidxxx XXX (v) no prospective purchaser who bids for the Purchased Acquired Assets at the Auction shall be entitled to purchase the Purchased Acquired Assets unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Acquired Assets for consideration which is at least five percent (5%) greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least aggregate of the sum of (x) the Break-Up Fee plus (y) $1.5 million, Purchase Price and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, as determined by HLHZ and (v) after any initial overbid, all further overbids must be in increments of at least $500,000.00the Seller. Should overbidding take place, Purchaser Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Approval Hearing based upon any Buyer's submission of the highest and best offer to purchase the Acquired Assets and Seller's acceptance of such overbid. Following the filing of the Sale Procedure Motion, Seller shall use its best efforts to obtain the Bidding Procedures Order. Seller agrees that the Break-Up Fee is in the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets.

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof Execution Date (and in no event later than one ten (110) Business Day business days thereafter), the Seller will file a motion (the "SALE PROCEDURE MOTIONSale Procedure Motion") with the Bankruptcy Court requesting the entry of an order (the Bidding "Procedure Order Order") (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARINGApproval Hearing") to approve Seller's consummation of this Agreementagreement, (ii) fixing the time and date of an auction (the "AUCTIONAuction") to be held one to three days before at the Approval Hearing offices of Xxxxxxx & Xxxxx, L.L.P. at which higher and better offers may be presented to the Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and Sch. 8.7, Pg. 14 such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's depositterms, then Purchaser Buyer will be entitled to receive from the Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by PurchaserBuyer) in cash or other immediately available good funds in the amount of US $2,000,000, 1,000,000 (xUnited States Dollars One Million 00/100) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (ythe "Break- Up Fee") all management fees and other amounts owed pursuant which payment shall be paid to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAK-UP FEE"), which payments shall be made to Purchaser Buyer concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their depositsale, (iv) providing that no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Official CommitteeXxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment advisorsbanker, BDO Seidxxx XXX (v) providing that no prospective purchaser who bids for the Purchased Assets Property at Auction shall be entitled to purchase the Purchased Assets Property unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets Property for consideration which is at least US $1,500,000 (United States Dollars One Million Five Hundred Thousand 00/100) greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) providing that after any initial overbid, all further overbids must be in increments of at least $500,000.00. Should 500,000 (United States Dollars Five Hundred Thousand 00/100), that should overbidding take place, Purchaser the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Approval Hearing based upon any such overbid, and that should an overbidder be approved at the hearing on the Sale Motion, Buyer shall deliver to such approved overbidder all third party reports, studies and the like resulting from Buyer's due diligence investigations, and (vii) approving the form, manner, scope, and substance of notice regarding the proposed sale and Auction, including overbid procedures. The form and substance of the Sale Procedure Motion and the Procedure Order shall be reasonably acceptable to Buyer and shall be provided to Buyer prior to filing of same with the Bankruptcy Court. Following the filing of the Sale Procedure Motion, the Seller shall use its best reasonable efforts to obtain the Bidding Procedures Order. Seller agrees that Procedure Order (the Break-Up Fee date on which the Procedure Order is in entered and becomes final is referred to herein as the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets"Sale Procedure Date").

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof Execution Date (and in no event later than one three (13) Business Day business days thereafter), the Seller will file a motion (the "SALE PROCEDURE MOTIONSale Procedure Motion") with the Bankruptcy Court requesting the entry of an order (such order, in the Bidding form entered by the Bankruptcy Court, the "Procedure Order Order") on an expedited basis (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARINGApproval Hearing") to approve Seller's consummation of this Agreementagreement, (ii) fixing the time and date of an auction (the "AUCTIONAuction") to be held one to three days before as soon as practicable at the Approval Hearing offices of Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P. in Houston, Texas, at which higher and better offers may be presented to the Seller, (iii) providing that if Seller receives from a third party a higher and better offer for the Property at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's depositterms, then Purchaser this Agreement will be terminated and Buyer will be entitled to receive from the Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by PurchaserBuyer) in cash or other immediately available good funds in the amount of $2,000,000, 250,000 (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAKBreak-UP FEEUp Fee"), ) which payments payment shall be made to Purchaser the Buyer concurrently with the consummation and from the proceeds of such third party sale or termination if Seller is permitted to retain their depositand shall constitute liquidated damages of Buyer, and shall be Buyer's sole and exclusive remedy in respect of such termination, (iv) no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Official CommitteeHLHZ, Seller's investment advisorsbanker, BDO Seidxxx XXX (v) no prospective purchaser who bids for the Purchased Assets Property at Auction shall be entitled to purchase the Purchased Assets Property unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets Property for consideration which is (A) at least $500,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of and (xB) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) after any initial overbid, all further overbids must be in increments of at least $500,000.00500,000. Should overbidding take place, Purchaser the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Approval Hearing based upon any such overbid. Should an overbidder be approved at the hearing on the Sale Motion, Buyer shall deliver to such approved overbidder all third party reports, studies and the like resulting from Buyer's Due Diligence investigations. Following the filing of the Sale Procedure Motion, the Seller shall use its best reasonable efforts to obtain the Bidding Procedures Order. Seller agrees that Procedure Order (the Break-Up Fee date on which the Procedure Order is in entered and becomes final is referred to herein as the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets"Sale Procedure Date").

Bankruptcy Court Approval of Sale Procedures. Promptly -------------------------------------------- following the date hereof Execution Date (and in no event later than one ten (110) Business Day business days thereafter), Seller will file a motion (the "SALE PROCEDURE MOTIONSale Procedure Motion") with the Bankruptcy Court requesting the entry of an order in form and substance acceptable to Buyer (the Bidding "Procedure Order Order") (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARINGApproval Hearing") to approve Seller's consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTIONAuction") to be held one to three days before at the Approval Hearing offices of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx, Atlanta, Georgia, at which higher and better offers to purchase the Property may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer to purchase the Property at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's depositterms, then Purchaser Buyer will be entitled to receive from Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by PurchaserBuyer) in cash or other immediately available good funds in the amount of $2,000,000, 3% of Purchase Price (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAKBreak-UP FEEUp Fee"), ) which payments payment shall be made to Purchaser Buyer concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their depositsale, (iv) no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Official CommitteeXxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment advisorsbanker, BDO Seidxxx XXX (v) no prospective purchaser who bids for the Purchased Assets Property at Auction shall be entitled to purchase the Purchased Assets Property unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets Property for consideration which is at least $2,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (vvi) after any initial overbid, all further overbids must be in increments of at least $500,000.00500,000. Should overbidding take place, Purchaser Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Approval Hearing based upon any such overbid. Should an overbidder be approved at the hearing on the Sale Motion, Buyer shall deliver to such approved overbidder all third party reports, studies and the like resulting from Buyer's Due Diligence investigations. Following the filing of the Sale Procedure Motion, Seller shall use its best reasonable efforts to obtain the Bidding Procedures Order. Seller agrees that Procedure Order (the Break-Up Fee date on which the Procedure Order is in entered and becomes final is referred to herein as the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets"Sale Procedure Date").

Bankruptcy Court Approval of Sale Procedures. Promptly following On or as soon as practicable subsequent to the date hereof (and hereof, but in no event later more than one (1) Business Day five days thereafter), Seller the Company will file a motion (the "SALE PROCEDURE MOTION"“Sale Procedure Motion”) with the Bankruptcy Court requesting the entry of an order substantially in the Bidding form attached hereto as Exhibit D (the “Procedure Order Order”) (i) fixing the time, earliest available time and date, and location of a hearing (the "APPROVAL HEARING"“Approval Hearing”) to approve Seller's the Companys’ consummation of this the Agreement, (ii) fixing the time and date of an auction (the "AUCTION"“Auction”) preceding the Approval Hearing to be held one to three days before at the Approval Hearing offices of the Company’s counsel, or such other location as the Bankruptcy Court directs, at which higher and better offers to purchase the Assets may be presented to Sellerthe Company, (iii) establishing bidding procedures acceptable to the Purchaser, (iv) providing that if Seller the Company receives from a third party a higher and better offer to purchase the Assets at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's depositterms, then the Purchaser will be entitled to receive from Seller (w) the Company a flat fee payment (not dependent on amounts actually expended or incurred by the Purchaser) in cash or other immediately available good funds Good Funds in the amount of $2,000,000, 150,000 (xthe “Break-Up Fee”) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAK-UP FEE"), which payments payment shall be made to the Purchaser concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their depositsale, (ivv) providing that the Purchasers’ claim to the Break-Up Fee shall be entitled to superpriority administrative claim treatment in the Bankruptcy Case, senior to all other superpriority claims, except such claim shall be subordinate to the payment of all professional fees in the Bankruptcy Case, whether now or hereafter incurred or accrued, and to the rights of such professionals to such payment, (vi) providing that no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "“financially qualified" ” by the Official Committee's investment advisorsCompany, BDO Seidxxx XXX in accordance with objective criteria set forth in the Procedure Order which at a minimum shall require any such prospective purchaser to provide documentation establishing that such prospective purchaser has sufficient cash on hand or a binding financial commitment from an established financial institution to ensure such prospective purchaser’s ability to meet its commitments pursuant to its bid, (vvii) providing that no prospective purchaser who bids for the Purchased Assets at Auction shall be entitled to purchase the Purchased Assets unless such prospective purchaser (a) posts submits to the Company in writing three days prior to the Auction a bid at least equal to $3 million deposit; (b) offers to purchase the Purchased Assets for consideration which is 200,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least for the sum of (x) the Break-Up Fee plus (y) $1.5 millioninitial bid, and otherwise then $50,000 greater for any additional incremental bid, accompanied by a commitment to proceed to a closing on contractual terms at least as favorable to Seller the Company as those set forth in this AgreementAgreement and a cash deposit in an amount equal to the product obtained by multiplying the purchase price proposed in such bid times 5%, and (vviii) after requiring the Company to provide to the Purchaser, upon the Company’s receipt thereof, a copy of any initial overbidbid received by it, all further overbids must be in increments except not including any materials related to such bidder which the Company is prohibited from disclosing by the terms of at least $500,000.00a valid confidentiality agreement and also not including any financial or proprietary information submitted by such bidder. Should overbidding take place, the Purchaser shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Approval Hearing based upon any such overbid, provided, however, that the Purchaser shall receive a credit against any additional incremental bid in an amount equal to $150,000. Following the filing of the Sale Procedure Motion, Seller The Company shall use its best reasonable efforts to obtain the Bidding Procedures Procedure Order. Seller agrees that (The date on which the Break-Up Fee Procedure Order is in entered and becomes final is referred to herein as the best interests of Seller “Sale Procedure Date”). In order to prevail at the Auction and its estatesubsequent Approval Hearing, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible such aggregate bid for the assetsentirety of the Assets must be deemed higher and better than the Purchaser’s bid for the entirety of the Assets, in accordance with the Procedure Order.

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof Execution Date (and in no event later than one (1) Business Day 48 hours thereafter), Seller will file a motion (the "SALE PROCEDURE MOTIONSale Procedure Motion") ), reasonably acceptable to Buyer, with the Bankruptcy Court requesting the entry of an order (the Bidding "Procedure Order Order") providing (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARINGApproval Hearing") to approve Seller's consummation of the transactions contemplated by this AgreementAgreement (and subsequent performance of its ongoing obligations hereunder), (ii) fixing the time and date of an auction (the "AUCTIONAuction") to be held one held, prior to three days before the Approval Hearing Seller's consummation of the transactions contemplated by this Agreement, at the offices of Xxxx, Scholer, Fierman, Xxxx & Handler, LLP, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at which higher and better offers may be presented to Seller, (iii) providing that if Seller receives from a third party a (other than Buyer or an affiliate thereof) an adequate higher and better offer at the AuctionAuction (as described in clause (vi) of this Section), and such third party offer is subsequently approved by the Bankruptcy Court (or an appellate court) and closes the transaction contemplated in such offer is consummated as provided by its terms or does not close and Seller is entitled to retain such third party's depositterms, then Purchaser Buyer will be entitled to receive from Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by PurchaserBuyer) in cash or other immediately available good funds in the amount of $2,000,000, 225,000 (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAKBreak-UP FEEUp Fee"), ) which payments payment shall be made to Purchaser Buyer concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their depositsale, (iv) that no prospective purchaser third party will be permitted to bid at the Auction unless such party has has, at least three business days before the Auction, been deemed "financially qualified" by in the Official Committeegood faith judgment of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment advisorsbanker, BDO Seidxxx XXX and has provided HLHZ with a draft asset purchase agreement, marked to show changes from this Agreement, and has, at least one business day before the Auction, made a deposit with Seller in an amount of at least $600,000 in immediately available funds on terms substantially similar to the terms provided in Section 2.1.2 of this Agreement, (v) that all competing bids and draft asset purchase agreements shall be disclosed to Buyer promptly (but in no event later than 24 hours) after receipt by HLHZ, (vi) that no prospective purchaser third party who bids for the Purchased Assets Property at Auction shall be entitled to purchase the Purchased Assets Property unless such prospective purchaser (a) posts a $3 million deposit; (b) third party offers to purchase the Purchased Assets Property for consideration which is at least $300,000 greater than the consideration set forth in this Agreement (including all cash, cash and non-cash consideration and assumed liabilitiesconsideration) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (vvii) that after any initial overbid, all further overbids must be in increments of at least $500,000.00100,000 and (viii) that all overbidding must take place and be concluded at the Auction. Should overbidding take place, Purchaser Buyer shall have the right, but not the obligation, to participate in the overbidding and overbidding; provided, that if Buyer purchases the Property, Buyer shall not be entitled to receive the Break-Up Fee. Should an overbidder (other than Buyer or an affiliate thereof) be approved as the overbidder at the Approved Hearing based upon any hearing on the Sale Motion, Buyer shall, to the extent it may do so without violation of law or contractual restrictions and without losing the benefit of the attorney-client privilege, deliver to such overbidapproved overbidder all third party reports, studies and the like resulting from Buyer's due diligence investigations conducted during the course of negotiating this Agreement or thereafter. Following the filing of the Sale Procedure Motion, Seller shall use its best reasonable efforts to obtain Bankruptcy Court approval of the Bidding Procedures Procedure Order. Buyer shall use reasonable efforts to cooperate with and assist Seller agrees that the Break-Up Fee is in the best interests of Seller and its estate, among other reasons, because the establishment efforts to obtain entry of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assetsProcedure Order.

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof (and in no event later than one (1) Business Day thereafter), Seller will file a motion (the "SALE PROCEDURE MOTION") with the Bankruptcy Court requesting the entry of the Bidding Procedure Order (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARING") to approve Seller's consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTION") to be held one to three days before the Approval Hearing at which higher and better offers may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's deposit, then Purchaser will be entitled to receive from Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by Purchaser) in cash or other immediately available good funds in the amount of $2,000,000, (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAK-UP FEE"), which payments shall be made to Purchaser concurrently with the consummation of such third party sale or termination if Seller is permitted to retain their deposit, (iv) no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Official Committee's investment advisors, BDO Seidxxx XXX Xxxxxxx LLP (v) no prospective purchaser who bids for the Purchased Assets at Auction shall be entitled to purchase the Purchased Assets unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets for consideration which is greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (v) after any initial overbid, all further overbids must be in increments of at least $500,000.00. Should overbidding take place, Purchaser shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Hearing based upon any such overbid. Following the filing of the Sale Procedure Motion, Seller shall use its best efforts to obtain the Bidding Procedures Order. Seller agrees that the Break-Up Fee is in the best interests of Seller and its estate, among other reasons, because the establishment of the Break-Up Fee enhanced the bidding process and aided in establishing the highest possible purchase price; and aided in negotiating with Purchaser the highest possible bid for the assets.

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof Execution Date (and in no event later than one ten (110) Business Day business days thereafter), the Seller will file a the motion referenced in Section 4.2.5 hereof (the "SALE PROCEDURE MOTIONSale Procedure Motion") with the Bankruptcy Court requesting the entry of the Bidding order referenced in Section 4.2.5 hereof (the "Procedure Order Order") (i) fixing the time, date, and location of a hearing (the "APPROVAL HEARINGApproval Hearing") to approve Seller's consummation of this Agreementagreement, (ii) fixing the time and date of an auction (the "AUCTIONAuction") to be held one to three days before at the Approval Hearing offices of Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P. at which higher and better offers may be presented to the Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and such third party offer is subsequently approved accepted by the Bankruptcy Court and closes as provided by its terms or does not close and Seller is entitled to retain such third party's depositSeller, then Purchaser will Buyer shall be entitled to receive from Seller (w) a flat fee payment (not dependent on amounts actually expended or incurred by PurchaserBuyer) in cash or other immediately available good funds Good Funds in the amount of Two Million, Five Hundred Thousand Dollars and No Cents ($2,000,000, 2,500,000) (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BREAKBreak-UP FEEUp Fee"), which payments shall be made to Purchaser concurrently payable in accordance with the consummation of such third party sale or termination if Seller is permitted to retain their depositSection 4.4.5 hereof, (iv) providing that no prospective purchaser will be permitted to bid at the Auction unless (a) such party prospective purchaser has been deemed "financially qualified" by the Official CommitteeHLHZ, Seller's investment advisorsbanker, BDO Seidxxx XXX (b) such prospective purchaser shall have executed and delivered an asset purchase agreement substantially similar to this Agreement, and (c) such prospective purchaser has delivered a deposit into escrow not less than the amount of the Deposit, (v) providing that no prospective purchaser who bids for the Purchased Assets Property at Auction shall be entitled to purchase the Purchased Assets Property unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets Property for consideration which is at least Two Million, Seven Hundred Fifty Thousand Dollars and No Cents ($2,750,000) (the "Initial Overbid") greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) providing that (a) after any initial overbidthe Initial Overbid, all further overbids must be in increments of at least Two Hundred Fifty Thousand Dollars and No Cents ($500,000.00. Should 250,000), (b) should overbidding take place, Purchaser the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Approval Hearing based upon any such overbid. Following , and (c) should an overbidder be approved at the filing of hearing on the Sale Procedure Motion, Seller shall use Buyer shall, upon its best efforts to obtain the Bidding Procedures Order. Seller agrees that the Break-Up Fee is in the best interests of Seller and its estate, among other reasons, because the establishment receipt of the Break-Up Fee enhanced and the bidding process Deposit, deliver to such approved overbidder all third party reports, studies resulting from Buyer's due diligence investigations, and aided in establishing (vii) approving the highest possible purchase price; form, manner, scope, and aided in negotiating with Purchaser substance of notice regarding the highest possible bid for the assetsproposed sale and Auction, including overbid procedures.

Bankruptcy Court Approval of Sale Procedures. Promptly following the date hereof Execution Date (and in no event later than one ten (110) Business Day business days thereafter), Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "SALE PROCEDURE MOTIONSale Procedure Motion"), in form and substance acceptable to Buyer, for an order (the "Procedure Order") with from the Bankruptcy Court requesting the entry of the Bidding Procedure Order which provides that: (i) fixing if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due to the time, date, failure of the condition set forth in Section 4.2.8 and location of a hearing (the "APPROVAL HEARING"y) to approve Seller's consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTION") to be held one to three days before the Approval Hearing at which higher and better offers may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court and closes as provided by enters its terms order approving the sale of the Property (or does not close and any material portion thereof) to any party other than Buyer, Seller is entitled will on the next business day following entry of such order pay to retain such third party's deposit, then Purchaser will be entitled to receive from Seller (w) Buyer a flat fee payment (not dependent on amounts actually expended or incurred by PurchaserBuyer) in cash or other immediately available good funds in the amount of $2,000,000, 1,500,000 (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and the "Break-Up Fee"); (yii) all management fees third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) shall be in writing and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser delivered to Seller after the Effective Date)(collectively the "BREAKand Buyer no later than forty-UP FEE")eight (48) hours prior to such hearing, which payments shall be made to Purchaser concurrently together with the consummation satisfactory evidence of such third party's financial ability to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party sale or termination if shall agree may be used by Seller is permitted to retain their deposit, pay the Break-Up Fee to Buyer in the situation described in clause (ivi) above; (iii) no prospective purchaser will be permitted to bid at the Auction Hearing on the Sale Motion unless such party has been deemed "financially qualified" by the Official CommitteeXxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment advisors, BDO Seidxxx XXX banker; (viv) no prospective purchaser who bids for the Purchased Assets Property at Auction the hearing on Buyer's acquisition of the Property shall be entitled to purchase the Purchased Assets Property unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Purchased Assets Property for consideration which is at least $4,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (v) after any initial overbid, all further overbids must be in include cash increments of at least $500,000.001,000,000. Should overbidding take place, Purchaser Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Approved Hearing hearing on the Sale Motion based upon any such overbid. Following If the filing Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Sale Procedure Motion, Seller shall use its best efforts to obtain the Bidding Procedures Order. Seller agrees that the Break-Up Fee is in Fee. Should an overbidder other than Buyer be approved at the best interests of Seller hearing on the Sale Motion, Buyer shall, the day after such hearing and its estate, among other reasons, because concurrently with the establishment payment of the Break-Up Fee enhanced to Buyer, deliver to the bidding process person designated by Seller all reports, studies and aided the like materials obtained by Buyer from third party consultants in establishing the highest possible purchase price; and aided in negotiating connection with Purchaser the highest possible bid for the assetsBuyer's due diligence investigation.