Common use of Bankruptcy Court's Approval of Sale Clause in Contracts

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of an order (the "Approval Order"), said Sale Motion to be in form and content reasonably satisfactory to Buyer. Said Approval Order shall (i) approve the sale of the Property to Buyer on the terms and conditions set forth in this Agreement and authorize the Seller to proceed with this transaction, (ii) includes a specific finding that Buyer is a good faith purchaser of the Property, (iii) state that the sale of the Property to Buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement), and (iv) contain the provisions required by Section 3.6, approve the Seller's assumption and assignment pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller to pay any cure amounts or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) as a condition to such assumption and assignment. Following the filing of the Sale Motion, the Seller shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth above.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file The Sellers have filed a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of an order (approving the transactions contemplated in this Agreement. For purposes of this Agreement, "Approval Order"), said Sale Motion to be " shall mean an order of the Bankruptcy Court in form and content reasonably substance satisfactory to Buyer. Said Approval Order shall the Buyer and shall, among other things, (i) approve the sale of the Property Purchased Assets to the Buyer on the terms and conditions set forth in this Agreement and authorize and direct the Seller Parent and the Sellers to proceed with this transaction, (ii) includes include a specific finding that the Buyer is a good faith purchaser of the PropertyPurchased Assets for purposes of Section 363(m) of the Bankruptcy Code, (iii) state that the sale of the Property Purchased Assets shall be sold and transferred to Buyer shall be free and clear of all liensLiens, claims, interests interests, encumbrances, pension liabilities, including without limitation, any liability, claim or obligation that is or may be asserted (before or after Closing) by the Pension Benefit Guaranty Corporation or any other party with respect to any pension plan of the Sellers or any affiliate of the Sellers, successor liability claims, and encumbrances whatsoever other Liabilities and obligations, of every kind or description, to the fullest extent permitted by the Bankruptcy Code and applicable non-bankruptcy law, including without limitation any successor liability claims (except only for Assumed Liabilities and Permitted Liens as and to the extent expressly provided in this Agreement), and (iv) contain state that the provisions required by Section 3.6, approve the Seller's assumption interest in and assignment pursuant claims and rights under contracts and leases sold to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed Buyer under this Agreement shall be assigned or transferred to Buyer notwithstanding a provision on Schedule 3.6, find void and unenforceable any provision which such contract or lease or applicable law that prohibits, restricts or conditions the assignment or transfer of such contract or lease; (v) provide for a waiver of the stays contemplated by Bankruptcy Rules 6004(g) and 6006(e); (vi) contain a finding that Buyer has not engaged in any of the Real Property Lease and Related Agreements or any acts prohibited by Section 363(n) of the Other Leases Bankruptcy Code; (vii) to the extent the Buyer elects to purchase assets of any Wholly Owned Acquired Entity or other person (each a "Non-Debtor Seller") pursuant to Section 1.2(j), authorize and Contractsdirect the Sellers to cause the applicable Non-Debtor Seller to transfer the specified assets to the Buyer, find allocate a portion of the purchase price for the Purchased Assets to the assets being purchased from such Non-Debtor Seller and contain a finding that the time amount allocated to assume such has not expired and that Non-Debtor Seller is fair consideration for the assets transferred from such are in full force and effect and free from default (other than for specified cure amounts) and order the Non-Debtor Seller to pay any cure amounts or accruals payable to the Buyer, and (viii) contain such other parties to the foregoing (other than cure amounts to be paid findings of fact, conclusions of law and orders reasonably required by Buyer listed in Schedule 2.2.1) as a condition to such assumption and assignmentits counsel. Following the filing of the Sale Motion, the Seller The Sellers shall use all reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's prompt entry of the Approval Order and Buyer agrees to cooperate with the satisfaction of the criteria therefor set forth aboveSellers in connection with such efforts.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Dateexecution of this Agreement, and contemporaneously with the filing of the Sale Procedure Motion, Seller Company shall file a motion with the Bankruptcy Court (the "“Sale Motion"”) requesting entry of an order (the "“Approval Order"), said Sale Motion to be ”) in form reasonably acceptable to the Purchaser and content reasonably satisfactory providing that the Purchaser shall not incur any liability as a successor to Buyer. Said Approval Order shall the Business which (i) approve approves the sale of the Property Assets to Buyer the Purchaser on the terms and conditions set forth in this Agreement and authorize authorizes the Seller Company to proceed with this transaction, (ii) includes a specific finding that Buyer the Purchaser is a good faith purchaser of the PropertyAssets under Section 363(m) of the Bankruptcy Code and that the provisions of Section 363(n) of the Bankruptcy Code have not been violated, (iii) state states that the sale of the Property Assets to Buyer the Purchaser shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to the extent permitted under Section 363 of the Bankruptcy Code (except as expressly provided in this Agreement), and (iv) contain approves the provisions required by Section 3.6, approve the Seller's Company’s assumption and assignment of the explicitly assumed pre-petition Contracts (collectively, the “Section 365 Contracts”) pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6, find void and unenforceable any provision which prohibits, restricts or conditions the assignment requires payment of any of the Real Property Lease and Related Agreements or any of the Other Leases and ContractsCure Amounts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller to pay any cure amounts or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Section 365 Contracts as a condition to such assumption and assignment, in accordance with Section 1.03 herein, (vi) authorizes and directs the Company to execute, deliver, perform under, consummate and implement this Agreement, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the foregoing, (vii) determines that the Purchaser is not a successor to the Company or otherwise liable for any of the Excluded Liabilities and permanently enjoins each and every holder of any of the Excluded Liabilities from commencing, continuing or otherwise pursuing or enforcing any remedy, claim, cause of action or encumbrance against the Purchaser related thereto, (viii) finds that, pursuant to Section 1146(c) of the Bankruptcy Code, the within transaction is “in contemplation of a plan or plans of reorganization to be confirmed in the Bankruptcy Case,” and as such shall be free and clear of any and all transfer tax, stamp tax or similar taxes. In no event shall the Purchaser have the right to terminate this transaction by reason of the failure to assign any Section 365 Contract which is not material to the operation of the Business. Following the filing of the Sale Motion, the Seller Company shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by Both the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, Purchaser’s and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's Company’s obligations to consummate the transactions contemplated in this Agreement herein which the Buyer Purchaser and Seller the Company may hereafter enter into shall be conditioned upon the Bankruptcy Court's ’s entry of the Approval Order and the satisfaction of the criteria therefor set forth aboveOrder.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file a the motion referenced in Section 4.2.5 hereof with the Bankruptcy Court (the "Sale Motion") requesting entry of an the order referenced in Section 4.2.5 hereof (the "Approval Order"), said Sale Motion to be in form and content reasonably satisfactory to Buyer. Said which Approval Order shall be submitted to the Bankruptcy Court following conclusion of the Auction, but in no event shall the Approval Order be submitted to the Bankruptcy Court later than the third day following conclusion of the Auction, and which Approval Order (i) approve approves the sale of the Property to Buyer on the terms and conditions set forth in this Agreement and authorize authorizes the Seller to proceed with this transaction, (ii) includes a specific finding that Buyer is a good faith purchaser of the PropertyProperty as contemplated by Section 363(m) of the United States Bankruptcy Code, (iii) state states that the sale of the Property to Buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement)whatsoever, and (iv) contain the provisions required by Section 3.6, approve approves the Seller's assumption and assignment pursuant to Section 365 Buyer of the Bankruptcy Code of all of the pre-petition Real Property Lease Leases and Related Agreements Other Leases and all of Contracts (except those Real Property Leases and the Other Leases and Contracts listed on Schedule 3.6, find void that Buyer rejects pursuant to Section 1.2.1) pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller approves Buyer to pay any cure amounts or accruals the Cure Costs payable to the other parties to the foregoing Real Property Leases and the Other Leases and Contracts (other than cure amounts except those Real Property Leases and the Other Leases and Contracts that Buyer rejects pursuant to be paid by Buyer listed in Schedule 2.2.1Section 1.2.1) as a condition to such assumption and assignment. Following the filing assignment in amounts not in excess of the Sale Motion, the Seller shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor those amounts set forth aboveon Exhibit "R".

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file the Sellers filed a motion with the Bankruptcy Court (the "“Sale Motion"”) requesting entry of an order (the "“Approval Order")”) substantially in the form attached hereto as Exhibit C, said Sale Motion to be in form and content reasonably satisfactory to the Buyer. Said Approval Order shall Order, among other things, shall: (i) approve the sale of the Property Acquired Assets to the Buyer on the terms and conditions set forth in this Agreement and authorize the Seller Sellers to proceed with this transaction, ; (ii) includes include a specific finding that the Buyer is a good faith purchaser of the Property, Acquired Assets; (iii) state that the sale of the Property Acquired Assets to the Buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever Liens (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement), and ; (iv) contain provide for a waiver of the provisions required stays contemplated by Section 3.6, Bankruptcy Rules 6004(g) and 6006(e); (v) approve the Seller's ’s assumption and assignment to the Buyer pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of Contractual Obligations included in the Other Leases and Contracts listed on Schedule 3.6Acquired Assets, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease Contractual Obligations included in the Acquired Assets, and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such Contractual Obligations has not expired and that such Contractual Obligations are in full force and effect and free from default (other than for specified cure amounts); and (vi) providing that the Stores may “go dark” during the remodeling/refurbishing period contemplated by Section 5.9 hereof, and order the Seller to pay finding that such remodeling or refurbishment will not trigger any cure amounts liability, termination rights, defaults, penalties or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) as a condition to such assumption and assignmentremedies. Following the filing of the Sale Motion, the Seller Sellers shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth above.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file also promptly make a motion with the Bankruptcy Court (the "Sale MotionSALE MOTION") requesting entry of for an order (the "Approval OrderSALE ORDER"), said Sale Motion to be in form and content reasonably satisfactory to Buyer. Said Approval Order shall ) from the Bankruptcy Court which (i) approve approves the sale of the Property Assets to Buyer Purchaser on the terms and conditions set forth in this Agreement and authorize the authorizes Seller to proceed with this transaction, (ii) includes a specific finding that Buyer Purchaser is a good faith purchaser of the PropertyAssets, (iii) state states that the sale of the Property Assets to Buyer Purchaser shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to of parties that have notice of the extent expressly provided in this Agreement)Sale Motion, and (iv) contain the provisions required by Section 3.6, approve the Sellerapproves Purchaser's assumption and assignment of the pre-petition Assigned Contracts and Assumed Leases pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the orders Seller to pay any cure amounts or accruals payable Cure Payments up to the other parties $100,000 and Purchaser to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) pay any Cure Payments over $100,000 as a condition to such assumption and assignment; provided, however, that in no event shall Purchaser have the right to disapprove the Sale Order or terminate this transaction by reason of (A) the failure to assign all of the Assigned Contracts and Assumed Leases or (B) Seller's inability to assign any or all of the Assigned Contracts or Assumed Leases by reason of the Bankruptcy Court's determination that Purchaser has failed to provide adequate assurance of future performance to the counter party and (v) provides that the sale of the Assets and assignment of the pre-petition Assigned Contracts and the Assumed Leases is not stayed pursuant to Federal Rules of Bankruptcy Procedure Rule 6004(g) and 6006(d). Following the filing of the Sale Motion, the Seller shall use commercially reasonable efforts to obtain the Sale Order. If (xx) the Bankruptcy Court refuses to issue the Sale Order (except as otherwise provided in clause (iv) above) or (yy) a third party purchaser for the Assets or any material portion thereof is approved by the Court at the Sale Hearing, then in any such event, this transaction shall automatically terminate and Seller and Purchaser shall be relieved of any further liability or obligation hereunder; provided, however, in the event a third party purchaser for the Assets or any material portion thereof is approved by the Court at the Sale Hearing, and Purchaser is otherwise entitled to the Break-up Fee then such obligation on the part of Seller to pay the Break-up Fee shall survive. Upon timely entry of the Approval Order. The Approval Sale Order shall be entered by (such entry date being referred to herein as the Bankruptcy Court not later than 50 days (including non-business days) following "SALE APPROVAL DATE"), the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated condition set forth in this Agreement which the Buyer and Seller may hereafter enter into Section 9.2(b) shall conclusively be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth abovedeemed satisfied.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously Contemporaneously with the filing of the Sale Procedure Motion, Seller the Company shall file a motion with the Bankruptcy Court (the "“Sale Motion"”) requesting entry of an order (the "“Approval Order"), said Sale Motion to be ”) in form reasonably acceptable to the Purchaser and content reasonably satisfactory providing that the Purchaser shall not incur any liability as a successor to Buyer. Said Approval Order shall the Business which (i) approve approves the sale of the Property Assets to Buyer the Purchaser on the terms and conditions set forth in this Agreement Agreement, or such higher and authorize better terms and conditions offered at Auction, and authorizes the Seller Company to proceed with this transaction, (ii) includes a specific finding that Buyer the Purchaser is a good faith purchaser of the PropertyAssets under Section 363(m) of the Bankruptcy Code and that the provisions of Section 363(n) of the Bankruptcy Code have not been violated, (iii) state states that the sale of the Property Assets to Buyer the Purchaser shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to the extent permitted under Section 363 of the Bankruptcy Code (except as expressly provided in this Agreement), and (iv) contain approves the provisions required by Section 3.6, approve the Seller's Company’s assumption and assignment of the explicitly assumed pre-petition Contracts (collectively, the “Section 365 Contracts”) pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6, find void and unenforceable any provision which prohibits, restricts or conditions the assignment requires payment of any of the Real Property Lease and Related Agreements or any of the Other Leases and ContractsCure Amounts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller to pay any cure amounts or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Section 365 Contracts as a condition to such assumption and assignment, in accordance with Section 1.03 herein, (vi) authorizes and directs the Company to execute, deliver, perform under, consummate and implement this Agreement, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the foregoing, (vii) determines that the Purchaser is not a successor to the Company or otherwise liable for any of the Excluded Liabilities and permanently enjoins each and every holder of any of the Excluded Liabilities from commencing, continuing or otherwise pursuing or enforcing any remedy, claim, cause of action or encumbrance against the Purchaser related thereto, (viii) finds that, pursuant to Section 1146(c) of the Bankruptcy Code, the within transaction is “in contemplation of a plan or plans of reorganization to be confirmed in the Bankruptcy Case,” and as such shall be free and clear of any and all transfer tax, stamp tax or similar taxes. In no event shall the Purchaser have the right to terminate this transaction by reason of the failure to assign any Section 365 Contract which is not material to the operation of the Business. Following the filing of the Sale Motion, the Seller Company shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by Both the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, Purchaser’s and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's Company’s obligations to consummate the transactions contemplated in this Agreement herein which the Buyer Purchaser and Seller the Company may hereafter enter into shall be conditioned upon the Bankruptcy Court's ’s entry of the Approval Order and the satisfaction of the criteria therefor set forth aboveOrder.

Bankruptcy Court's Approval of Sale. Promptly following the ----------------------------------- Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of an order in form and substance satisfactory to Buyer (the "Approval Order"), said Sale Motion to be in form and content reasonably satisfactory to Buyer. Said Approval Order shall ) which (i) approve approves the sale of the Property to Buyer on the terms and conditions set forth in this Agreement and authorize the authorizes Seller to proceed with this transaction, (ii) includes a specific finding and conclusion of law that Buyer is a good faith purchaser of the PropertyProperty within the meaning of Section 363(m) of the Bankruptcy Code, (iii) state states that the sale of the Property to Buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement), and (iv) contain the provisions required by Section 3.6, approve the approves Seller's assumption and assignment pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease Leases and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6(collectively, find void the "Section 365 Contracts") pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller orders Buyer to pay any cure amounts or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Section 365 Contracts as a condition to such assumption and assignment. Following the filing of the Sale Motion, the Seller shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth aboveOrder. 9. Indemnity ---------

Bankruptcy Court's Approval of Sale. Promptly following after the Execution Date, and contemporaneously with the filing of the Sale Procedure Motiondate hereof, Seller shall file a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of an order (the "Approval Order"), said Sale Motion to be in form and content substance reasonably satisfactory acceptable to Buyer. Said Approval Order shall , which, among other things, (i) approve approves the sale of the Property Acquired Assets to Buyer on the terms and conditions set forth in this Agreement (or such higher and authorize better terms and conditions offered at the Auction) and authorizes the Seller to proceed with this transaction or such higher and better transaction, (ii) includes a specific finding findings that (A) this Agreement was proposed and negotiated by Buyer and Seller in good faith and at arm's length, (B) Buyer is a good faith purchaser of the PropertyAcquired Assets under Section 363(m) of the Bankruptcy Code, (C) the provisions of Section 363(n) of the Bankruptcy Code have not been violated, and (D) no term, condition or provision of the Letter from Vy Capital, LLC to Seller dated October 15, 2001 (the "Vy Letter"), is binding upon or enforceable against the Seller and that neither Seller nor Buyer has violated any term, condition or provision of the Vy Letter, or incurred any liability to Vy Capital, LLC, on account of the Vy Letter or the sale of the Acquired Assets to Buyer, (iii) state that authorizes and directs the sale Seller to sell the Acquired Assets to Buyer pursuant to this Agreement and Section 363 of the Property to Buyer shall be Bankruptcy Code, free and clear of all liens, claims, interests interests, liabilities and encumbrances whatsoever (except only for other than the Assumed Liabilities as and to the extent expressly provided in this Agreement)Liabilities, and (iv) contain authorizes and directs Seller to assume and assign the provisions required by Section 3.6, approve the Seller's assumption and assignment pre-Petition Date Assumed Contracts to Buyer pursuant to Section 365 of the Bankruptcy Code of and pay all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller to pay any cure amounts or accruals payable to the other parties counterparties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Assumed Contracts as a condition to such assumption and assignment, (v) authorizes and directs the Seller to execute, deliver, perform under, consummate and implement this Agreement, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the foregoing, (vi) decrees that no term, condition or provision of the Vy Letter is binding upon or enforceable against the Seller and that neither Seller nor Buyer has violated any term, condition or provision of the Vy Letter, or incurred any liability to Vy Capital, LLC, on account of the Vy Letter or the sale of the Acquired Assets to Buyer, (vii) permanently enjoins Vy Capital, LLC from asserting against Seller or Buyer any claim arising from the Vy Letter or on account of the sale of the Acquired Assets to Buyer, and (viii) permanently enjoins each and every holder of a lien, claim or interest that is not an Assumed Liability from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Buyer relative to such lien, claim or interest. Following the filing of the Sale Motion, the Seller shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement herein which the Buyer and Seller may hereafter enter into shall be expressly conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction incorporating each of the criteria therefor terms set forth abovein this Section 8.6(b)." 1.12 Section 8.6 of the Asset Purchase Agreement is hereby amended by adding the following new Section 8.6(c):

Bankruptcy Court's Approval of Sale. Promptly following after the Execution Date, and contemporaneously with the filing of the Sale Procedure Motiondate hereof, Seller shall file a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of an order (the "Approval Order")) which, said Sale Motion to be in form and content reasonably satisfactory to Buyer. Said Approval Order shall among other things, (i) approve approves the sale of the Property Acquired Assets to Buyer on the terms and conditions set forth in this Agreement (or such higher and authorize better terms and conditions offered at the Auction) and authorizes the Seller to proceed with this transaction or such higher and better transaction, (ii) includes a specific finding findings that (A) this Agreement was proposed and negotiated by Buyer and Seller in good faith and at arm's length, (B) Buyer is a good faith purchaser of the PropertyAcquired Assets under Section 363(m) of the Bankruptcy Code, and (C) the provisions of Section 363(n) of the Bankruptcy Code have not been violated, (iii) state that authorizes and directs the sale Seller to sell the Acquired Assets to Buyer pursuant to this Agreement and Section 363 of the Property to Buyer shall be Bankruptcy Code, free and clear of all liens, claims, interests interests, liabilities and encumbrances whatsoever (except only for other than the Assumed Liabilities as and to the extent expressly provided in this Agreement)Liabilities, and (iv) contain authorizes and directs Seller to assume and assign the provisions required by Section 3.6, approve the Seller's assumption and assignment pre-Petition Date Assumed Contracts to Buyer pursuant to Section 365 of the Bankruptcy Code of and pay all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller to pay any cure amounts or accruals payable to the other parties counterparties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Assumed Contracts as a condition to such assumption and assignment, (v) authorizes and directs the Seller to execute, deliver, perform under, consummate and implement this Agreement, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the foregoing, and (vi) permanently enjoins each and every holder of a lien, claim or interest that is not an Assumed Liability from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Buyer relative to such lien, claim or interest. Following the filing of the Sale Motion, the Seller shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement herein which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth aboveOrder.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller the Sellers shall file a motion with the Bankruptcy Court (the "“Sale Motion"”) requesting entry of an order (the "“Approval Order")”) substantially in the form attached hereto as Exhibit C, said Sale Motion to be in form and content reasonably satisfactory to the Buyer. Said Approval Order shall Order, among other things, shall: (i) approve the sale of the Property Acquired Assets to the Buyer on the terms and conditions set forth in this Agreement and authorize the Seller Sellers to proceed with this transaction, ; (ii) includes include a specific finding that the Buyer is a good faith purchaser of the Property, Acquired Assets; (iii) state that the sale of the Property Acquired Assets to the Buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever Liens (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement), and ; (iv) contain provide for a waiver of the provisions required stays contemplated by Section 3.6, Bankruptcy Rules 6004(g) and 6006(e); (v) approve the Seller's ’s assumption and assignment to the Buyer pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of Contractual Obligations included in the Other Leases and Contracts listed on Schedule 3.6Acquired Assets, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease Contractual Obligations included in the Acquired Assets, and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such Contractual Obligations has not expired and that such Contractual Obligations are in full force and effect and free from default (other than for specified cure amounts); and (vi) providing that the Stores may “go dark” during the remodeling/refurbishing period contemplated by Section 5.9 hereof, and order the Seller to pay finding that such remodeling or refurbishment will not trigger any cure amounts liability, termination rights, defaults, penalties or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) as a condition to such assumption and assignmentremedies. Following the filing of the Sale Motion, the Seller Sellers shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth above.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of an order on an expedited basis (such order, in the form entered by the Bankruptcy Court, the "Approval Order"), said Sale Motion to be in form and content reasonably satisfactory to Buyer. Said Approval Order shall ) which (i) approve approves the sale of the Property to Buyer on the terms and conditions set forth in this Agreement Agreement, or such other terms as the Seller and authorize successful bidder may approve, and authorizes the Seller to proceed with this transaction, (ii) includes a specific finding that Buyer is a good faith purchaser of the Property, (iii) state states that the sale of the Property to Buyer shall be free and clear of all liens, claimsencumbrances, offsets, arrearages, damages, and other claims and interests and encumbrances of any kind whatsoever (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement), and whether arising under terms of any contract assigned to Buyer pursuant to such sale or otherwise, (iv) contain the provisions required by Section 3.6, approve approves the Seller's assumption and assignment pursuant to Section 365 of the Bankruptcy Code of all of the pre-petition Real Property Lease Leases and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6(collectively, find void the "Section 365 Contracts") pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and unenforceable any provision which prohibits, restricts or conditions orders the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the Seller Buyer to pay any cure amounts or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Section 365 Contracts as a condition to such assumption and assignment. In no event shall Buyer have the right to terminate this transaction by reason of the failure to assign all of the Section 365 Contracts so long as the Approval Order authorizes the Seller to assume and assign not less than ninety five percent (95%) both in number and aggregate value in dollars of such Section 365 Contracts. Following the filing of the Sale Motion, the Seller shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth aboveOrder.

Bankruptcy Court's Approval of Sale. Promptly following the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller the Selling Parties shall file a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of an order (the "Approval Order")) in the form attached hereto as Exhibit G-2, said Sale Motion to be in form and content reasonably satisfactory to the Buyer. Said Approval Order shall (i) approve the sale of the Property Acquired Assets to the Buyer on the terms and conditions set forth in this Agreement and authorize the Seller Selling Parties to proceed with this transaction, (ii) includes include a specific finding that the Buyer is a good faith purchaser of the PropertyAcquired Assets, (iii) state that the sale of the Property Acquired Assets to the Buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever Liens (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement), and (iv) contain provide for a waiver of the provisions required stays contemplated by Section 3.6Bankruptcy Rules 6004(g) and 6006(e), (v) approve the Seller's assumption and assignment to the Buyer pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of Contractual Obligations included in the Other Leases and Contracts listed on Schedule 3.6Acquired Assets, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease Contractual Obligations included in the Acquired Assets, and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such Contractual Obligations has not expired and that such Contractual Obligations are in full force and effect and free from default (other than for specified cure amounts), (vi) waive and order release all preference or avoidance claims and actions of the Seller and its Subsidiaries against any Person, pursuant to pay Sections 544, 545, 547, 548, -51- 549, 550 and 553(b) of the Bankruptcy Code, and (vii) shall not impose upon the Buyer any cure amounts or accruals payable financial obligation to provide "adequate assurances" (as such term is used in Section 365 of the other parties Bankruptcy Code) to the foregoing (other than cure amounts any Person in respect of any Contractual Obligation assigned pursuant to be paid by Buyer listed in Schedule 2.2.1) as a condition to such assumption and assignmentthis Agreement. Following the filing of the Sale Motion, the Seller Selling Parties shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor set forth above.

Bankruptcy Court's Approval of Sale. Promptly In the event that the condition provided for in Section 8.4.1 above is either satisfied or waived (or deemed waived), Seller shall promptly, but not more than 10 days following the Execution Date, and contemporaneously with the filing of the Sale Procedure MotionDate, Seller shall file make a motion with the Bankruptcy Court (the "Sale Motion") requesting entry of for an order (the "Sale Approval Order"), said Sale Motion to ) from the Bankruptcy Court (which order shall be in form and content reasonably satisfactory substance acceptable to Buyer. Said Approval Order shall ) which (i) approve approves the sale of the Property to Buyer on the terms and conditions set forth in this Agreement and authorize the authorizes Seller to proceed with this transaction, ; (ii) includes a specific finding that Buyer is a good faith purchaser of the Property, ; (iii) state states that the sale of the Property to Buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to the extent expressly provided in this Agreement), and whatsoever; (iv) contain the provisions required by Section 3.6, approve the approves Seller's assumption and assignment of the pre-petition leases and contracts to be assumed hereunder (collectively, the "Section 365 Contracts") pursuant to Section 365 of the Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code of all of the Real Property Lease and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6and, find void and unenforceable any provision which prohibitsexcept as provided in Section 2.2 hereof, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the orders Seller to pay any cure amounts or accruals payable to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Section 365 Contracts as a condition to such assumption and assignment. Following ; provided, however, in no event shall Buyer have the filing right to disapprove the Sale Approval Order or terminate this transaction by reason of the Sale Motion, the Seller shall use reasonable efforts failure to obtain entry assign all of the Approval Order. The Section 365 Contracts so long as (a) the Sale Approval Order shall be entered authorizes Seller to assume and assign not less than ninety percent (90%) of the Section 365 Contracts and (b) included in such 90% are the contracts listed as items 4, 5 and 6 on Exhibit "A-3"; and (v) contains the following findings of fact and conclusions of law by the Bankruptcy Court not later than 50 days in form and substance satisfactory to Buyer establishing that: (including non-business daysa) following the Execution Datenotice of sale, assignment and transfer of the Property free and clear of liens, and the terms parties who were served with copies of this notice, was in compliance with Bankruptcy Code Sections 102, 363 and 365 and Federal Rules of Bankruptcy Procedure 2002, 6004, 6006, 9014 and any other provisions of the Approval Order Bankruptcy Code, the Federal Rules of Bankruptcy Procedure or any local bankruptcy rules governing the sale of the Property free and clear of liens and the assignment of executory contracts and leases, if any; (b) upon the closing of the sale of the Property to Buyer, the Property shall comply be transferred, sold and delivered to Buyer free and clear of all encumbrances, obligations, liabilities, contractual commitments, claims, including, without limitation, any theory of successor liability, DE FACTO merger, or substantial continuity, whether based in law or equity, ERISA and employee benefit obligations, collective bargaining agreements, environmental liabilities, any security interest, mortgage, lien, charge against or interest in property, adverse claim, claim of possession, license, restriction of any kind, including, but not limited to, any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership or any option to purchase, option, charge, retention agreement which is intended as security or other matters (collectively, "Liens") of any person or entity that encumber or relate to, or purport to encumber or relate to, the Property, except as specifically provided in this Agreement. (c) all requirements imposed by Bankruptcy Code Section 363 and applicable case law for the sale of assets free and clear of Liens have been satisfied; (d) Buyer is a purchaser in "good faith" of the Property pursuant to Bankruptcy Code Section 363(m); (e) Buyer and Seller did not engage in any conduct which would allow this Agreement to be set aside pursuant to Bankruptcy Code Section 363(n); (f) all of the requirements imposed by Bankruptcy Code Section 365 and applicable case law for the assumption and assignment of executory contracts and leases in connection with the sale of assets free and clear of Liens have been satisfied; (g) any other provisions of the Bankruptcy Code governing the sale of assets free and clear of Liens have been satisfied; (h) the transactions consummated pursuant to this Agreement are entitled to the protections of Section 363(m) of the Bankruptcy Code; (i) pursuant to Section 105 of the Bankruptcy Code, any creditors of Seller are prohibited from taking any actions against Buyer or the Property, except in connection with liabilities expressly assumed by Buyer; (j) the transfers made pursuant to this Agreement are made under the Bankruptcy Code and not subject to any taxes under applicable laws; and (k) the terms and provisions of this Agreement are fair and reasonable. Moreover, the order approving the sale shall state as follows: (aa) This Order is and shall be in form and content reasonably satisfactory in effective as a determination that, upon transfer of the Property to Buyer, all respects Liens existing as to the Property conveyed to Buyer have been and hereby are adjusted and declared to be unconditionally released, discharged and terminated, and shall be binding upon and govern the acts of all entities, including, all filing agents, filing officers, administrative agencies or units, governmental departments or units, 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 the Property conveyed to Buyer. Both Buyer's and Seller's obligations to consummate All Liens of record as of the transactions contemplated date of this Order, except as otherwise provided in this Agreement order, shall be forthwith removed and stricken as against the Property. All such entities described in paragraph (bb) immediately below are authorized and specifically directed to strike all such recorded Liens against the Property from their records, official and otherwise. (bb) If any person or entity which has filed statements or other documents or agreements evidencing Liens on, or interests in, any of the Property does not deliver to the Buyer prior to the closing of the sale of the Property to Buyer, in proper form for filing and executed by the appropriate parties, termination statements, instruments of satisfaction, releases of Liens and easements, and any other documents necessary for the purpose of documenting the release of all Liens which the Buyer and Seller person or entity has or may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry assert with respect to any of the Approval Order Property, Buyer is hereby authorized and the satisfaction directed to execute and file such statements, instruments, releases and other documents on behalf of such persons or entity with respect to any of the criteria therefor set forth aboveProperty.

Bankruptcy Court's Approval of Sale. Promptly following Prior to the Execution Date, and contemporaneously with the filing of the Sale Procedure Motion, Seller shall file have filed a motion with the Bankruptcy Court (the "Sale Motion") with the Bankruptcy Court requesting entry of an order order, the form of which Buyer and Seller shall work in good faith to finalize by November 22, 2002 and which shall be in form and substance reasonably acceptable to Buyer (in the form entered by the Bankruptcy Court, the "Approval Order"), said Sale Motion to be in form and content reasonably satisfactory to Buyer. Said Approval Order shall which (i) approve approves the sale of the Property to Buyer a buyer on the terms and conditions set forth substantially similar to those contained in this Agreement and authorize the Seller Form APA attached to proceed with this transactionthe Sale Motion, (ii) includes a specific finding that Buyer any buyer is a good faith purchaser of the PropertyProperty and is entitled to the protection afforded by Section 363(m) of the Bankruptcy Code, (iii) state states that the sale of the Property to Buyer any buyer shall be free and clear of all liens, claims, interests and encumbrances whatsoever (except only for Assumed Liabilities as and to the extent expressly provided or agreed in this Agreementany subsequent agreement), and (iv) contain the provisions required by Section 3.6, approve the approves Seller's assumption and assignment to Buyer of the pre-petition Real Property Leases and the Other Leases and Contracts (collectively, the "Section 365 Contracts") pursuant to Section 365 of the Bankruptcy Code of all of the Real Property Lease and, subject to and Related Agreements and all of the Other Leases and Contracts listed on Schedule 3.6in accordance with Section 2.5, find void and unenforceable any provision which prohibits, restricts or conditions the assignment of any of the Real Property Lease and Related Agreements or any of the Other Leases and Contracts, find that the time to assume such has not expired and that such are in full force and effect and free from default (other than for specified cure amounts) and order the orders Seller to pay any cure amounts or accruals payable the Cure Costs, subject to Buyers reimbursing Seller for Buyer's Cure Payment in accordance with Section 2.5, to the other parties to the foregoing (other than cure amounts to be paid by Buyer listed in Schedule 2.2.1) Section 365 Contracts as a condition to such assumption and assignment. Buyer shall not have the right to terminate this Agreement because of Seller's inability to assume and assign a Section 365 Contract other than those listed on Exhibit "A-1". Following the filing of the Sale Motion, the Seller shall use reasonable its best efforts to obtain entry of the Approval Order. The Approval Order shall be entered by the Bankruptcy Court not later than 50 days (including non-business days) following the Execution Date, and the terms of the Approval Order shall comply with the terms of this Agreement and shall be in form and content reasonably satisfactory in all respects to the Buyer. Both Buyer's and Seller's obligations to consummate the transactions contemplated in this Agreement and which the Buyer and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court's entry of the Approval Order and the satisfaction of the criteria therefor as set forth abovein Sections 4.1.4 and 4.2.4.