Common use of Merchant’s Representations, Warranties and Covenants Clause in Contracts

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants that as of the date and during the term of this Agreement: (i) the Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever; (ii) Merchant will not sell the Future Receivables to another person or entity; (iii) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business location without the prior written consent of Purchaser, and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and in accordance with the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants as follows: (a) Merchant will forward to Bank promptly after receipt, at any time during or following Merchant’s participation in the Program, a copy of any legal proceeding, or a communication relating to an Account received from a Cardholder or from a governmental or regulatory authority. (b) Without Bank’s consent, Merchant will not permit the sale of extended warranties, service contracts, gift certificates, stored value cards (or reloads), or any other future service or delivery obligation (including any pre-paid membership (periodic or lifetime) or similar product), to be charged to Accounts. (c) Merchant will issue a credit to an Account (and not give any Cardholder cash) in connection with any return or exchange of merchandise or services originally charged to the corresponding Card; such credit shall be included in the next business day’s transmission of Charge Transaction Data; the amount of such credit cannot exceed the amount shown as the total on the original charge slip, except by the exact amount required to reimburse the Cardholder for postage that as the Cardholder paid to return merchandise; and, Merchant shall not issue a credit to any Cardholder unless Merchant shall have previously completed a retail charge transaction with such Cardholder on the corresponding Card. (d) On behalf of the date and during the term of this Agreement: Bank, Merchant shall (i) store in accordance with the Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests requirements set forth below) original documentation of any nature whatsoevereach Card transaction for at least one year from the date of the respective transaction; (ii) retain copies of all charge and credit slips, original completed Card applications, detailed purchase invoices, and copies of all Charge Transaction Data submitted to Bank, for at least twenty-five (25) months and thereafter continuously unless after retaining such documents for the twenty-five month period Merchant will not sell the Future Receivables offers to another person or entityship such documents to Bank and Bank authorizes Merchant to destroy them instead; and (iii) Merchant will not conduct business under provide any name other than as disclosed herein, shall not change its business location without the prior written consent of Purchaser, and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; these records to Bank promptly, but no later than seven (vii7) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company business days following Bank’s request. (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viiie) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorneyin compliance with, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay continue to comply with, all necessary taxesapplicable laws, rules and regulations, including but not limited to: laws relating to employment (i) its sales of merchandise and sales and use taxesservices; (xiiii) Merchant the advertising or sale of products and the person(s) signing this Agreement services on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreementcredit; (xiiiiii) point-of-sale practices and representations made by Merchant’s employees and representatives; and (iv) laws relating to privacy and data security, including without limitation, the requirement to have and maintain a written data security policy. (f) Merchant will provide Purchaser copies of all documents related only truthful and complete information to Merchant’s card processing activity or financial Cardholders regarding Accounts, and banking affairs within five will take no action to prevent any amounts charged to any Card from being valid and enforceable against the applicable Cardholder. (5) days of a request by Purchaser; (xivg) Merchant will permit Purchaser properly code all promotional charges and will make any corrections necessary in the event of mistakes and disputes regarding promotions. (h) Merchant is and will at all times remain solvent, duly organized, validly existing and in good standing under the laws of its state of formation, will not violate its organizational documents or materially violate any agreements it has with third parties, and will advise Bank promptly of any condition or default under any agreement Merchant has with any third party that may materially affect Merchant’s prospects, continued operations, or property. (i) Any and all information previously furnished by Merchant to conduct Bank, or any information subsequently furnished by Merchant, including information provided in Merchant’s credit application or registration for participation in the Program, is or shall be true and correct in all material respects when furnished. (j) With respect to any transaction for which a site inspection Card is not physically presented, such as in any online, mail, telephone or pre-authorized transaction, Merchant must (i) have notified Bank in writing of Merchant’s businessintention to conduct such transactions, including an inspection and Bank must have agreed to accept them, and (ii) have reasonable procedures in place to ensure that each Card sale is made to a purchaser who actually is the Cardholder or the authorized user of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; Card. (xvk) Merchant will not take any action submit a Card transaction for the purpose of (i) disbursing cash (or scrip) to cause the Future Receivables to be settled Cardholder, or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and in accordance with the terms of this Agreement; (xviii) refinancing an existing debt. (l) Merchant will not enter into require (i) a Cardholder to complete any financing agreement wherein and whereby postcard or similar device that includes the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the useCardholder’s name, acceptanceaccount number, Card expiration date, signature, or authorization of any Payment Device other related account data when any such information would be in plain view when mailed, or (ii) request an account number from a Cardholder for any purpose other than as payment for the purchase sale of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:goods and/or services.

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants that as of the date and during the term of this Agreementthat: (i) the Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever; (ii) Merchant will not sell the Future Receivables to another person or entity; (iii) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business location without the prior written consent of Purchaser, and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ixa) all information provided by contained in the Application, the Addendum or any other documents delivered to MAS in connection therewith is true, accurate, and complete and properly reflects Merchant’s business, past and present financial condition and principal partners, owners or officers; (b) Merchant has power to Purchaser in execute, deliver and perform this Agreement, applicationand this Agreement is duly authorized, interview and will not violate any provisions of law, or conflict with Purchaser or otherwise and all of Merchant’s financial statements and any other financial documents provided agreement to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operationswhich Merchant is subject; (xc) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has holds all permits, licenses, approvalsif any, consents and authorizations necessary required to conduct its business and will promptly pay all necessary taxes, including but not limited is qualified to employment and sales and use taxesdo business in every jurisdiction where it is required to do so; (xiid) there is no action, suit or proceeding at law or in equity now pending or to Merchant’s knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations; (e) each Sales Draft presented to MAS for collection is genuine and is not the person(s) signing this Agreement result of any fraudulent or prohibited Transaction or is not being deposited on behalf of any business other than Merchant have full power and authority to enter into and perform the obligations under as authorized by this Agreement; (xiiif) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days each Sales Draft is the result of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and in accordance with the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device bona fide Card Transaction for the purchase of Merchants products goods or servicesservices from Merchant by the Cardholder in the total amount stated on the Sales Draft; (xviiig) Merchant has not, performed or will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation perform all of negotiating a change its obligations to the terms and conditions of this Agreement. Merchant understands clearly that Cardholder in connection with the breach of any of the foregoing shall constitute a breach/event of default under this AgreementCard Transaction evidenced thereby; (xvivh) Merchant will has complied with MAS’ procedures for accepting Cards, and the Card Transaction itself does not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account involve any element of credit for any other purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true other than as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:set forth in

Merchant’s Representations, Warranties and Covenants. The Merchant hereby represents, warrants warrants, and covenants that in favor of Agent (in addition to those contained in the APA) as of the date follows: (a) The Merchant is, and during the term Sale Term will continue to be, duly authorized and qualified to do business in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of the Merchant to execute and deliver this AgreementAgreement and the APA and perform fully its obligations and/or conduct of the Sale. (b) Except as may be required in connection with the issuance of any Sale Order: (i) the Future Receivables are not subject Merchant has the right, power, and authority to any claimsexecute and deliver this Agreement and each other document and agreement contemplated hereby, chargesincluding, lienswithout limitation, restrictionsthe APA (collectively, encumbrances or security interests of any nature whatsoevertogether with this Agreement, the “Sale Documents”) and to perform fully its obligations thereunder; (ii) the Merchant will has taken all necessary actions required to authorize the execution, delivery, and performance of the Sale Documents, and no further consent or approval is required for the Merchant to enter into and deliver the Sale Documents, to perform its obligations thereunder, and to consummate the Sale, except for any such consent the failure of which to be obtained could not sell reasonably be expected to have a material adverse effect on the Future Receivables ability of the Merchant to another person or entityexecute and deliver this Agreement and perform fully its obligations hereunder and/or conduct of the Sale; and (iii) each of the Sale Documents has been duly executed and delivered by the Merchant and constitutes the legal, valid and binding obligation of Merchant enforceable in accordance with its terms. (c) The Merchant owns and will own at all times during the Sale Term, good and marketable title to all of the Merchandise and FF&E (such FF&E being identified in Exhibit 12.1(c)(1)) free and clear of all liens, claims, and encumbrances of any nature, other than the liens listed in Exhibit 12.1 and any applicable statutory liens. The Merchant shall not conduct business under create, incur, assume, or suffer to exist any name security interest, lien, or other charge or encumbrance upon or with respect to any of the Merchandise, the FF&E or the Proceeds other than as disclosed hereinprovided for herein (including those listed in Exhibit 12.1). The Sale Order shall provide that (following payment of the Initial Guarantee Payment and delivery of the Guaranty L/C and the Expense L/C) all such liens, claims, and encumbrances shall be transferred to and attach only to the Guaranteed Amount, Expenses, and any other amounts due to the Merchant hereunder. (i) The Merchant has maintained its pricing files in the ordinary course of business, and prices charged to the public for goods, including the “register price,” are the same in all material respects as set forth in such pricing files for the periods indicated therein (including Merchant’s catalogue and website, but excluding any “circular” or specially advertised Merchandise); (ii) there are no material changes to the pricing files and records posted to the on-line dataroom, and no material changes to prices other than those reflected in the pricing files and records have been made; and (iii) all such pricing files and records are true and accurate in all material respects as to the selling price to the public for such goods (inclusive of prices in the Merchant’s catalogue and website, but excluding specially advertised Merchandise and without consideration of any point of sale markdowns) as of the dates and for the periods indicated therein. (e) All normal course permanent markdowns (price changes) on the Merchandise located at the Stores and Transferred Merchandise have been taken and have been programmed into Merchant’s registers and point-of-sales equipment. (f) The Merchant has not change its business location without in contemplation of the prior written consent Sale marked up or raised the price of Purchaserany items of Merchandise, or removed or altered any tickets or any indicia of clearance merchandise, in each case in contemplation of the Sale. The “register” price represents the selling price of each item of Merchandise reflected in the pricing files posted to the on-line dataroom, taking into account all “point of sale” markdowns and promotions and the status of any applicable item of Merchandise as “refurbished.” As of the Sale Commencement Date, the sale prices of Merchandise located in the Stores is consistent in all material respects as the selling prices for such Merchandise. (g) Since May 1, 2008, the Merchant has not and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale purchase or transfer of ownership interests in Merchant to or from the Stores any Merchandise or goods outside the ordinary course, except as contemplated by this Agreement and as otherwise set forth herein and except to the extent that results in a change in ownership or voting control of Merchant, or such matters have been impacted by a sale or transfer of substantially all the commencement of the assets of Merchant; Bankruptcy Case. (viih) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over To the operation and/or control best of the Merchant’s business knowledge, all Merchandise is in compliance with all applicable federal, state, or business locations; local product safety laws, rules, and standards. The Merchant shall provide the Agent with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date and shall notify Agent of any product recalls it becomes aware of after the Sale Commencement Date. (viiii) Throughout the Sale Term, and after giving effect to the Sale Order, the Agent shall have the right, subject to the applicable agreements to which the Merchant is not a party (except as provided in the Sale Order), to the unencumbered use and occupancy of, and peaceful and quiet possession of, each of the Stores, the assets currently contemplating located at the filing Stores, and the utilities and other services provided at the Stores. The Merchant shall throughout the Sale Term maintain in good working order, condition, and repair, all cash registers, heating systems, air conditioning systems, elevators, escalators, and all other mechanical devices necessary for the conduct of the Sale at the Stores. Except any amounts owing as a bankruptcy proceeding or closing Merchant’s business result of the commencement of the Bankruptcy Case, and absent a bona fide dispute, throughout the Sale Term, as long as the Agent reimburses the Merchant for Expenses as provided herein, the Merchant shall remain current on all expenses and payables necessary for the conduct of the Sale (other than those relating to any period prior to the commencement of the Bankruptcy Case). (j) Except any amounts owing as a result of the commencement of the Bankruptcy Case, the Merchant has not retained any attorneypaid, other consultant and as long as the Agent reimburses the Merchant for Expenses as provided herein, the Merchant will continue to pay throughout the Sale Term, all self-insured or professional to provide any advicethe Merchant-funded employee benefit programs for current Store employees, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise including health and medical benefits and insurance and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity proper claims made or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and made in accordance with such programs (other than those relating to any period prior to the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms commencement of the agreement require Merchant to make daily or weekly payments (NO “STACKING”Bankruptcy Case); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:.

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants that in favor of Agent as follows: (a) Eeach entity comprising Merchant (i) is a corporation or a limited liability company duly organized, validly existing and in good standing under the laws of the date state or province of its formation (except as may be a result of the commencement any Chapter 11 Cases for Merchant); (ii) has all requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as presently conducted; and (iii) is, and during the term Sale Term will continue to be, duly authorized and qualified to do business and in good standing in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Closing Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of Merchant to execute and deliver this AgreementAgreement and perform fully its obligations hereunder. (b) Except as may be required in connection with the issuance of the Approval Order, and subject to the consent of the Lenders: (i) the Future Receivables are not subject Merchant has the right, power and authority to any claimsexecute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, chargestogether with this Agreement, liens, restrictions, encumbrances or security interests of any nature whatsoeverthe “Agency Documents”) and to perform fully its obligations thereunder; (ii) Merchant will has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder and to consummate the Sale, except for any such consent the failure of which to be obtained could not sell reasonably be expected to have a material adverse effect on the Future Receivables ability of Merchant to another person or entityexecute and deliver this Agreement and perform fully its obligations hereunder; and (iii) each of the Agency Documents has been duly executed and delivered by Merchant and constitutes the legal, valid and binding obligation of Merchant enforceable in accordance with its terms. (c) Merchant owns, and will own at all times during the Sale Term, good and marketable title to all of the Merchandise to be included in the Sale, free and clear of all liens, claims and encumbrances of any nature, other than the liens listed on Exhibit 11.1(c) and any applicable statutory liens. Merchant shall not conduct business under create, incur, assume or suffer to exist any name security interest, lien or other charge or encumbrance upon or with respect to any of the Merchandise or the Proceeds other than as disclosed hereinprovided for herein (including those listed on Exhibit 11.1(c) and any applicable statutory liens). Any Approval Order shall provide that all such liens shall be transferred to and attach only to the Guaranteed Amount or other amounts payable to Merchant hereunder. (d) Merchant has maintained its pricing files in the ordinary course of business, and prices charged to the public for goods are the same in all material respects as set forth in such pricing files for the periods indicated therein (without consideration of any point of sale markdowns), and all pricing files and records are true and accurate in all material respects as to the actual cost to Merchant for purchasing the goods referred to therein and as to the selling price to the public for such goods without consideration of any point of sale markdowns, as of the dates and for the periods indicated therein. Merchant represents that (i) the ticketed prices of all items of Merchandise do not and shall not include any Sales Taxes and (ii) all registers located at the Closing Stores are programmed to correctly compute all Sales Taxes required to be paid by the customer under applicable law, as such calculations have been identified to Merchant by its retained service provider. (e) Through the Sale Commencement Date, Merchant shall ticket or xxxx all items of inventory received at the Closing Stores prior to the Sale Commencement in a manner consistent with similar Merchandise located at the Closing Stores and in accordance with Merchant’s ordinary course past practices and policies relative to pricing and marking inventory. To the extent Merchandise is not pre-ticketed prior to its receipt in the Distribution Centers, Agent shall be responsible for ticketing Distribution Center Merchandise and/or On-Order Merchandise as same is received in the Closing Stores after the Sale Commencement Date. (f) Since July 8, 2008 Merchant has not, and through the Sale Commencement Date Merchant shall not purchase for or transfer to or from the Closing Stores any merchandise or goods outside the ordinary course, except for the transfer of Distribution Center Merchandise to the Closing Stores prior to the Sale Commencement Date in a manner consistent with Exhibit 5.1(c). Since , 2008 and through , 2008, Merchant has continued and will continue to replenish goods in the Closing Stores in a manner and at levels consistent with Merchant’s replenishment of on-going stores, it being understood and agreed that such replenishment has not and will not be consistent with historic and customary levels or practices, as a result of, among other things, Merchant’s Chapter 11 filing and/or delays in procuring shipments from its vendors. From and after , 2008, Merchant shall discontinue designating replenishment for the Closing Stores; provided however, On-Order Merchandise earmarked for the Closing Stores prior to , 2008, to the extent received, shall continue to flow through to the Closing Stores, with some arriving after the Sale Commencement Date, but in any event prior to the Store Receipt Deadline. (g) To the best of Merchant’s knowledge, all Merchandise is in compliance with all applicable federal, state or local product safety laws, rules and standards. Merchant shall provide Agent with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date. (h) Subject to the provisions of the Approval Order, throughout the Sale Term, the Agent shall have the right to the unencumbered use and occupancy of, and peaceful and quiet possession of, each of the Closing Stores, the assets currently located at the Closing Stores and the utilities and other services provided at the Closing Stores. Merchant shall, throughout the Sale Term, maintain in good working order, condition and repair all cash registers, heating systems, air conditioning systems, elevators, escalators and all other mechanical devices necessary for the conduct of the Sale at the Closing Stores. Except any amounts owing as a result of the commencement of any Chapter 11 Case, and absent a bona fide dispute, throughout the Sale Term Merchant shall remain current on all expenses and payables necessary for the conduct of the Sale (other than those relating to any period prior to the commencement of any Chapter 11 Case), subject to any restrictions that may be imposed under the Bankruptcy Code. (i) Except any amounts owing as a result of the commencement of any Chapter 11 Case, Merchant had paid, and will continue to pay throughout the Sale Term, all self- insured or Merchant funded employee benefit programs for Store employees, including health and medical benefits and insurance and all proper claims made or to be made in accordance with such programs (other than those relating to any period prior to the commencement of any Chapter 11 Case). (j) Merchant has not change its business location without the prior written consent of Purchaserintentionally taken, and shall not temporarily close its business for renovations throughout the Sale Term intentionally take, any actions with the intent of increasing the Expenses of Sale, including, without limitation, increasing salaries or other purposes; amounts payable to employees, except (ivi) there may be instances that, in an effort to encourage one or more employees to remain in Merchant’s employ, Merchant will increased the salaries of such employees (such action not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take being with any action intent to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake increase any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all Expenses of the assets of MerchantSale or in anticipation thereof); and (viiii) to the extent an employee was due an annual raise. Merchant will not voluntarily permit another person or companyshall discontinue the foregoing practices from and after the date hereof, including without limitation a franchisor company unless otherwise agreed in writing between Merchant and Agent. (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viiik) Merchant is not currently contemplating Except as may be impacted by the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorneythe Chapter 11 Case, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and restricted by the Chapter 11 filing, Merchant covenants to continue to operate the Closing Stores in all material respects in the ordinary course of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and from the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term date of this Agreement without notice to Merchantthe Sale Commencement Date by: (i) selling inventory during such period at customary prices consistent with the ordinary course of business; (xvii) Merchant will not take promoting or advertising any action sales or in-store promotions (including POS promotions) to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to public (except for Merchant’s pending advertisements as of the date of this Agreement and/or Merchant’s promotions for the period through the Sale Commencement Date; (iii) except as may occur in the ordinary course of business, not returning inventory to vendors and not transferring inventory or supplies between or among Stores; and (iv) except as may occur in accordance the ordinary course of business, not making any management personnel moves or changes at the Closing Stores without prior written notice to and consultation with (but not approval of) Agent. (l) T the terms best of Merchant’s knowledge, All documents, information and supplements provided by Merchant to Agent in connection with Agent’s due diligence and the negotiation of this Agreement; Agreement were true and accurate in all material respects at the time provided. (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviiim) Merchant has notnot transferred any employees to or from any Store within the past 45 days, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true except as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:detailed on Exhibit 11.1(m).

Merchant’s Representations, Warranties and Covenants. The Merchant hereby represents, warrants warrants, and covenants that in favor of Agent (in addition to those contained in the APA) as of the date follows: (a) The Merchant is, and during the term Sale Term will continue to be, duly authorized and qualified to do business in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of the Merchant to execute and deliver this AgreementAgreement and the APA and perform fully its obligations and/or conduct of the Sale. (b) Except as may be required in connection with the issuance of any Sale Order: (i) the Future Receivables are not subject Merchant has the right, power, and authority to any claimsexecute and deliver this Agreement and each other document and agreement contemplated hereby, chargesincluding, lienswithout limitation, restrictionsthe APA (collectively, encumbrances or security interests of any nature whatsoevertogether with this Agreement, the “Sale Documents”) and to perform fully its obligations thereunder; (ii) the Merchant will has taken all necessary actions required to authorize the execution, delivery, and performance of the Sale Documents, and no further consent or approval is required for the Merchant to enter into and deliver the Sale Documents, to perform its obligations thereunder, and to consummate the Sale, except for any such consent the failure of which to be obtained could not sell reasonably be expected to have a material adverse effect on the Future Receivables ability of the Merchant to another person or entityexecute and deliver this Agreement and perform fully its obligations hereunder and/or conduct of the Sale; and (iii) each of the Sale Documents has been duly executed and delivered by the Merchant and constitutes the legal, valid and binding obligation of Merchant enforceable in accordance with its terms. (c) The Merchant owns and will own at all times during the Sale Term, good and marketable title to all of the Merchandise and FF&E (such FF&E being identified in Exhibit 12.1(c)(1)) free and clear of all liens, claims, and encumbrances of any nature, other than the liens listed in Exhibit 12.1 and any applicable statutory liens. The Merchant shall not conduct business under create, incur, assume, or suffer to exist any name security interest, lien, or other charge or encumbrance upon or with respect to any of the Merchandise, the FF&E or the Proceeds other than as disclosed hereinprovided for herein (including those listed in Exhibit 12.1). The Sale Order shall provide that (following payment of the Initial Guarantee Payment and delivery of the Guarantee L/C and the Expense L/C) all such liens, claims, and encumbrances shall be transferred to and attach only to the Guaranteed Amount, Expenses, and any other amounts due to the Merchant hereunder. (i) The Merchant has maintained its pricing files in the ordinary course of business, and prices charged to the public for goods, including the “register price,” are the same in all material respects as set forth in such pricing files for the periods indicated therein (including Merchant’s catalogue and website, but excluding any “circular” or specially advertised Merchandise); (ii) there are no material changes to the pricing files and records posted to the on-line dataroom, and no material changes to prices other than those reflected in the pricing files and records have been made; and (iii) all such pricing files and records are true and accurate in all material respects as to the selling price to the public for such goods (inclusive of prices in the Merchant’s catalogue and website, but excluding specially advertised Merchandise and without consideration of any point of sale markdowns) as of the dates and for the periods indicated therein. (e) All normal course permanent markdowns (price changes) on the Merchandise located at the Stores and Transferred Merchandise have been taken and have been programmed into Merchant’s registers and point of sales equipment. (f) The Merchant has not change its business location without in contemplation of the prior written consent Sale marked up or raised the price of Purchaserany items of Merchandise, or removed or altered any tickets or any indicia of clearance merchandise, in each case in contemplation of the Sale. The “register” price represents the selling price of each item of Merchandise reflected in the pricing files posted to the on-line dataroom, taking into account all “point of sale” markdowns and promotions and the status of any applicable item of Merchandise as “refurbished.” As of the Sale Commencement Date, the sale prices of Merchandise located in the Stores is consistent in all material respects as the selling prices for such Merchandise in the Merchant’s ongoing store locations. (g) Since May 1, 2008, the Merchant has not and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale purchase or transfer of ownership interests in Merchant to or from the Stores any Merchandise or goods outside the ordinary course, except as contemplated by this Agreement and as otherwise set forth herein and except to the extent that results in a change in ownership or voting control of Merchant, or such matters have been impacted by a sale or transfer of substantially all the commencement of the assets of Merchant; Bankruptcy Case. (viih) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over To the operation and/or control best of the Merchant’s business knowledge, all Merchandise is in compliance with all applicable federal, state, or business locations; local product safety laws, rules, and standards. The Merchant shall provide the Agent with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date and shall notify Agent of any product recalls it becomes aware of after the Sale Commencement Date. (viiii) Throughout the Sale Term, and after giving effect to the Sale Order, the Agent shall have the right, subject to the applicable agreements to which the Merchant is not a party (except as provided in the Sale Order), to the unencumbered use and occupancy of, and peaceful and quiet possession of, each of the Stores, the assets currently contemplating located at the filing Stores, and the utilities and other services provided at the Stores. The Merchant shall throughout the Sale Term maintain in good working order, condition, and repair, all cash registers, heating systems, air conditioning systems, elevators, escalators, and all other mechanical devices necessary for the conduct of the Sale at the Stores. Except any amounts owing as a bankruptcy proceeding or closing Merchant’s business result of the commencement of the Bankruptcy Case, and absent a bona fide dispute, throughout the Sale Term, as long as the Agent reimburses the Merchant for Expenses as provided herein, the Merchant shall remain current on all expenses and payables necessary for the conduct of the Sale (other than those relating to any period prior to the commencement of the Bankruptcy Case). (j) Except any amounts owing as a result of the commencement of the Bankruptcy Case, the Merchant has not retained any attorneypaid, other consultant and as long as the Agent reimburses the Merchant for Expenses as provided herein, the Merchant will continue to pay throughout the Sale Term, all self-insured or professional to provide any advicethe Merchant-funded employee benefit programs for current Store employees, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise including health and medical benefits and insurance and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity proper claims made or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and made in accordance with such programs (other than those relating to any period prior to the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms commencement of the agreement require Merchant to make daily or weekly payments (NO “STACKING”Bankruptcy Case); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:.

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants warrants, and covenants that as on an ongoing basis from the Effective Date of this Agreement through the end of the date Term, other than in respect of subparagraph (a) below which is represented solely on the Effective Date: (a) It is wholly-owned, directly or indirectly, by Xxxx Corporation; (b) To the best of its knowledge, all sales financed by TDFS in connection with the Program are true sales to consumers, intended for personal, family, or household purposes, of deliverable and during merchantable goods or of services actually performed and provided by Merchant, including shipping and handling charges, applicable Taxes and other fees imposed by Merchant, and that, other than as such may be dealt with or resolved pursuant to the term provisions of this Agreement in respect of Chargebacks, there are no defenses, credits, set-offs, deductions or counterclaims that are assertable against the same, by customers or third parties and that Merchant, immediately prior to such sale, owned such goods and, subsequent to such sale, owns the proceeds thereof, free and clear of any liens and that the related Sales Slips are genuine, valid and subsisting and are free and clear of all liens and encumbrances; (c) Subject to all other requirements set forth under this Agreement: , Merchant will comply with Applicable Laws and its own internal policies regarding security, anti-money laundering, privacy and protection of Personal Information; (d) Notwithstanding the foregoing, Merchant shall comply with TDFS’s policies regarding security, anti-money laundering, privacy and protection of Personal Information to the extent applicable to a Credit Card Account or Cardholder and any Credit Card Account documentation, as requested by TDFS, where such compliance is, in TDFS’s opinion, required by Applicable Law; (e) Merchant will (i) obtain two (2) pieces of acceptable and valid identification documents as set forth in the Future Receivables are not subject Acceptable Identification Documentation list provided by TDFS and attached hereto as Schedule 5.2(e), as amended from time to time, and any claimsother requirements that TDFS may impose with regard to consumer protection, chargesanti-money laundering, liens, restrictions, encumbrances personal information protection or security interests of any nature whatsoeverfinancial Applicable Laws when processing an application with TDFS; (ii) Merchant will not sell accurately record the Future Receivables to another person or entitytype and required information from said acceptable and valid identification; (iii) not process an Application where such identification appears to be fraudulent or has expired; and (iv) review and compare the photographs and signatures that appear on such acceptable and valid identification to ensure that they are similar in appearance to the applicant’s appearance and applicant’s signature on the application; (f) Merchant will properly process all promotional transactions and will correct any of its mistakes at its sole expense. TDFS reserves the right to charge an additional processing fee in the case of promotional plan errors. For greater clarity, if there is an error in a promotional plan that is processed, Merchant shall be responsible for any differential in Processing Fees between the incorrect promotional plan and the correct promotional plan. Additionally, if there is an error in a file(s) transmitted to TDFS that results in errors to a significant number of Credit Card Accounts, any expenses incurred by TDFS for the manual or systematic resolution of said error will be at the sole expense of Merchant; (g) Merchant will store all completed customer Applications, both approved and declined, in a secure location until such time as the Applications are forwarded to TDFS, said forwarding to take place at least once per month; (h) There is no fact known to Merchant that it has not conduct business under any name other than as promptly disclosed hereinto TDFS that could materially and adversely affect its financial condition, shall not change its business location without business, or property to the prior written consent of Purchaser, and shall not temporarily close its business for renovations extent that such would reasonably be expected to have a material adverse impact upon Merchant’s performance hereunder or other purposes; the Program; (ivi) Merchant will not change extract any special agreement, condition or add credit card processors security from Cardholders in connection with their application for, or change use of, a Credit Card, unless approved in advance by TDFS in writing (other than fees that may be charged to Cardholder by Merchant, if not prohibited by Applicable Laws, for the Account without use of promotional purchase plans established or consistent with the prior written approval practices of Purchaser; Merchant on the Effective Date); (vj) Merchant will not take any action to intentionally discourage the use of credit cardshave at all times, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing while this Agreement on behalf of Merchant have full power is in effect, sufficient and authority compliant policies and procedures to enter into and perform the ensure compliance with its obligations under this Agreement; ; (xiiik) All factual information furnished by Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, TDFS in writing at any reasonable time during pursuant to any requirement of, or furnished in response to any written request of TDFS under this Agreement or any transaction contemplated hereby will be true and accurate in every respect material to the term transactions contemplated hereby on the date as of which such information was or will be stated or certified; (l) Neither execution of this Agreement without notice nor the consummation of the transactions contemplated hereby nor performance of its obligations hereunder will (i) conflict with, result in the breach of, constitute a default under, or accelerate the performance required by, the terms of any material order, Applicable Law, contract, instrument or commitment to which Merchant is a party or by which it is bound, (ii) violate the articles of incorporation or bylaws or any other equivalent organizational document of Merchant; , (xviii) require any consent, approval, authorization or filing under any material Applicable Law, judgment, order, writ, decree, permit, license or agreement to which Merchant will not take is a party or by which it is bound or to which it is subject, or (iv) require the consent or approval of any action to cause the Future Receivables to be settled or delivered other party to any bank account other than material contract to which Merchant is a party; and (m) the bank account that the Future Receivables are being settled or delivered to as of the date execution of this Agreement and in accordance with the terms performance of this Agreement; (xvi) Merchant its obligations hereunder does not and will not enter into violate any financing other agreement wherein and whereby the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way with a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, financial institution to provide a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:similar credit card program.

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants that in favor of Agent as follows: (a) each entity comprising Merchant (i) is a corporation duly organized, validly existing and in good standing under the laws of the date state or province of its formation (except as may be a result of the commencement and/or pendency of the Merchant’s Chapter 11 Cases); (ii) subject to compliance with the Bankruptcy Code, has all requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as presently conducted; and (iii) is, and during the term Sale Term will continue to be, duly authorized and qualified to do business and in good standing in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of Merchant to execute and deliver this AgreementAgreement and perform fully its obligations hereunder. (b) Except as may be required in connection with the issuance of the Approval Order: (i) the Future Receivables are not subject Merchant has the right, power and authority to any claimsexecute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, chargestogether with this Agreement, liens, restrictions, encumbrances or security interests of any nature whatsoeverthe “Agency Documents”) and to perform fully its obligations thereunder; (ii) Merchant will has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder and to consummate the Sale, except for any such consent the failure of which to be obtained could not sell reasonably be expected to have a material adverse effect on the Future Receivables ability of Merchant to another person or entityexecute and deliver this Agreement and perform fully its obligations hereunder; and (iii) each of the Agency Documents has been duly executed and delivered by Merchant and constitutes the legal, valid and binding obligation of Merchant enforceable in accordance with its terms. (c) Merchant owns, and will own at all times during the Sale Term, good and marketable title to all of the Merchandise and Owned FF&E to be included in the Sale, free and clear of all liens, claims and encumbrances of any nature, other than the liens listed on Exhibit 11.1(c), any applicable statutory liens, and any super-priority liens, claims or encumbrances approved by Bankruptcy Code in connection with the Merchant’s debtor-in-possession financing. Merchant shall not conduct business under create, incur, assume or suffer to exist any name security interest, lien or other charge or encumbrance upon or with respect to any of the Merchandise, the Owned FF&E or the Proceeds other than as disclosed hereinprovided for herein (including those listed on Exhibit 11.1(c)). Any Approval Order shall provide that all such liens shall be transferred to and attach only to the Guaranteed Amount or other amounts payable to Merchant hereunder. (d) Merchant has maintained its pricing files in the ordinary course of business (including the Perpetual File), and prices charged to the public for goods are the same in all material respects as set forth in such pricing files (including Perpetual File) for the periods indicated therein (without consideration of any point of sale markdowns where the point of sale markdown is reflected in the price files (including Perpetual File)), and all pricing files (including Perpetual File)and records are true and accurate in all material respects as to the actual cost to Merchant for purchasing the goods referred to therein, the costs related thereto and as to the selling price to the public for such goods (without consideration of any point of sale markdowns) as of the dates and for the periods indicated therein. Merchant represents that to its knowledge (i) the ticketed prices of all items of Merchandise do not and shall not change include any Sales Taxes and (ii) all registers located at the Stores are programmed to correctly compute materially all Sales Taxes required to be paid by the customer under applicable law, as such calculations have been identified to Merchant by its business location without retained service provider. (e) Except with respect to Xxxxxxxx’s termination of point of sale events prior to the prior written consent of PurchaserSale Commencement Date in the manner previously disclosed to Agent, to its knowledge Merchant has not marked up or raised, and shall not temporarily close its up to the Sale Commencement Date mark up or raise, the price of any items of Merchandise, or removed or altered any tickets or any indicia of clearance merchandise, except in the ordinary course of business and except for renovations the effects of the termination of promotional events. (f) Through the Sale Commencement Date, Merchant shall use reasonable efforts to ticket or other purposes; mark all items of inventory received at the Stores prior to the Sale Commencement in a manner consistent with similar Merchandise located at the Stores and in accordance with Xxxxxxxx’s ordinary course past practices and policies relative to pricing and marking inventory. (ivg) Since [ , 2011], Merchant has not, and through the completion of the Inventory Taking, Merchant shall not purchase for or transfer to or from the Stores any Merchandise outside the ordinary course except for the transfer of Distribution Center Inventory (to the extent included in the Sale). Xxxxxxxx’s replenishment has not and will not change be consistent with historic and customary levels or add credit card processors or change practices, as a result of, among other things, Xxxxxxxx’s Chapter 11 filing and/or delays in procuring shipments from its vendors. From and after the Account without date hereof, Merchant shall discontinue issuing new orders for replenishment for the prior written approval of Purchaser; Stores. (vh) Merchant will not take any action to intentionally discourage To the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale best of Merchant’s knowledge, either by an issuanceall Merchandise is in compliance with all applicable federal, sale state or transfer local product safety laws, rules and standards. Merchant shall use reasonable efforts to provide Agent with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date. (i) Subject to the provisions of ownership interests the Approval Order, throughout the Sale Term, the Agent shall have the right to the unencumbered use and occupancy of, and peaceful and quiet possession of, each of the Stores, the assets currently located at the Stores and the utilities and other services provided at the Stores. Throughout the Sale Term and subject to Agent complying with its obligations to reimburse Merchant, the Merchant shall use commercially reasonable efforts to (a) maintain or (b) cause any applicable landlord to comply with its obligations under applicable Lease and occupancy agreements to maintain, in good working order, condition and repair all cash registers, heating systems, air conditioning systems, elevators, escalators and all other mechanical devices, but solely to the extent that the Merchant that results reasonably deems necessary for the Sale to be conducted without material interruption and in a change manner that is safe and in ownership compliance with applicable laws at the Stores; provided that, it is understood that the maintenance of cash registers, heating systems, air conditioning systems, elevators, and escalators are necessary for the Sale to be conducted without material interruption. Except as may be impacted by the Chapter 11 Case filing or voting control of Merchant, otherwise restricted by the Chapter 11 Case filing or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information as otherwise provided by Merchant to Purchaser in this Agreement, applicationand absent a bona fide dispute, interview with Purchaser throughout the Sale Term, Merchant shall remain current on all expenses and payables necessary for the conduct of the Sale. (j) Except as may be impacted by the Chapter 11 Case filing or otherwise restricted by the Chapter 11 Case filing, Merchant had paid, and will continue to pay throughout the Sale Term, all self-insured or Merchant funded employee benefit programs for Store employees, including health and medical benefits and insurance and all proper claims made or to be made in accordance with such program. (k) Since [ , 2011], Xxxxxxxx has not intentionally taken, and shall not throughout the Sale Term intentionally take, any actions with the intent of increasing the Expenses of Sale, including, without limitation, increasing salaries or other amounts payable to employees, except (i) there may have been instances that, in an effort to encourage one or more employees to remain in Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) employ, Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof increased the salaries of such insurance upon demandemployees (such action not being with any intent to increase any Expense of the Sale or in anticipation thereof); and (xiii) to the extent an employee was due an annual raise. (l) Except as may be impacted by the filing for Chapter 11 protection or otherwise restricted by the Chapter 11 filing, Merchant has covenants to continue to operate the Stores in all permits, licenses, approvals, consents and authorizations necessary to conduct its material respects in the ordinary course of business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and from the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term date of this Agreement without notice to Merchantthe Sale Commencement Date by: (i) selling inventory during such period at customary prices consistent with the ordinary course of business; (xvii) Merchant will not take promoting or advertising any action sales or in- store promotions (including POS promotions) to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to public (except for Merchant’s pending advertisements as of the date of this Agreement and in accordance with and/or Merchant’s promotions for the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby period through the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”Sale Commencement Date, as reflected on Exhibit 11.1(l)); (xviiiii) Merchant will conduct its except as may occur in the ordinary course of business consistent with past practice or as may be required by applicable law, not returning inventory to vendors and shall not take any action that would have an adverse effect on the use, acceptance, transferring inventory or authorization of any Payment Device for the purchase of Merchants products supplies between or servicesamong Stores; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:and

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants that as of the date and during the term of this Agreement: (i) the Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever; (ii) Merchant will not sell the Future Receivables to another person or entity; (iii) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business location without the prior written consent of Purchaser, and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s 's business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s 's business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and all of Merchant’s 's financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s 's financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s 's card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s 's business, including an inspection of Merchant’s 's credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and in accordance with the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:ID : 21988

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants that as of the date and during the term of this Agreement: (i) the Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever; (ii) Merchant will not sell the Future Receivables to another person or entity; (iii) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business location without the prior written consent of Purchaser, and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and in accordance with the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:.

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants warrants, and covenants that as of the date and during the term of this Agreement: (i) the Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever; (ii) Merchant will not sell the Future Receivables to another person or entity; (iii) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business location without the prior written consent of Purchaser, and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by on an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of ongoing basis from the date of this Agreement through the end of the Term: (a) All sales financed by TDRCS are true sales to Consumers, for personal, family, or household purposes, of deliverable and Merchant able Goods actually performed and provided by Merchant, and that there are no defenses, credits, set-offs, deductions or counterclaims that are assertable now or in accordance the future against the Merchant by Consumers or third Parties. Merchant also represents, to the best of its knowledge, that Goods owned by the Merchant, and proceeds thereto, are free and clear of any liens and that the related Sales Slips are genuine, valid and subsisting and are free and clear of all liens and encumbrances. (b) All aspects of the Finance Program within the control of Merchant, including, without limitation, taking of Credit Applications, communications with Consumers, and the terms processing of this Agreement; Sales Slips are in compliance with all Finance Program policies and procedures established by TDRCS and all Applicable Laws, including, without limitation, the federal Guidelines for Safeguarding Customer Information. Merchant is in compliance with all Applicable Laws, including, without limitation, laws relating to privacy, data security, and the sale of Goods. (xvic) Merchant will (i) obtain two (2) pieces of acceptable and valid identification documents as set forth in the Acceptable Identification Documentation list provided by TDRCS, as amended from time to time, when processing a Credit Application with TDRCS; (ii) accurately record the type and required information from said acceptable and valid identification; (iii) not enter into any financing agreement wherein process an Credit Application where such identification appears to be fraudulent or has expired; and whereby (iv) review and compare the repayment terms photographs and signatures that appear on such acceptable and valid identification to ensure that they are similar in appearance to the applicant's appearance and applicant's signature on the Credit Application. (d) Merchant agrees to the following procedures for telephone credit card applications to ensure quality assurance and program compliance. These procedures and required information include, but are not limited to: • Record all phone calls (and maintain copies of recordings for the life of the agreement require Merchant applicable Account) • Follow the most recent TDRCS-approved phone script for all phone calls • Follow the most recent guidance provided by TDRCS regarding the taking of credit card applications • Verify each applicant's name, street address, city, state and date of birth • Obtain each applicant's social security number • Obtain all information from the applicant in order to make daily or weekly payments complete the credit application Applications must be stored indefinitely unless archived onto CD and provided to TDRCS. (NO “STACKING”); (xviie) Merchant will conduct properly process all promotional transactions and will correct any mistakes at its business consistent with past practice sole expense. TDRCS reserves the right to charge an additional processing fee in the case of promotional plan errors. (f) Merchant will store all completed Credit Applications, both approved and shall declined, in a secure location until such time as the Credit Applications are forwarded to TDRCS, said forwarding to take place at least once per week. (g) There is no fact known to Merchant that it has not take any action promptly disclosed to TDRCS that would have an adverse effect on the usecould materially and adversely affect its financial condition, acceptancebusiness, property, or authorization of any Payment Device for prospects or the purchase of Merchants products or services; Finance Program. (xviiih) Merchant has not, will not is solvent and is not contemplating retaining/paying in default with respect to any way a third-party debt consolidatormaterial contract, nor has the Purchaser consulted with nor will the Purchaser consult withlease, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:other instrument.

Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants that as of the date and during the term of this Agreement: (i) the Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever; (ii) Merchant will not sell the Future Receivables to another person or entity; (iii) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business location without the prior written consent of Purchaser, and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (vii) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (viii) Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and in accordance with the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms of the agreement require Merchant to make daily or weekly payments (NO “STACKING”); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. TO THE EXTENT THAT INFORMATION PROVIDED BY THE MERCHANT THAT IS FALSE OR MISLEADING, MERCHANT SHALL BE DEEMED TO BE IN BREACH OF THIS AGREEMENT AND PURCHASER SHALL BE ENTITLED TO ANY REMEDIES UNDER LAW. ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER OR ANY REPRESENTATIVES OF MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION. Page: 5 Deal Application ID:

Merchant’s Representations, Warranties and Covenants. The Merchant hereby represents, warrants warrants, and covenants that in favor of Agent (in addition to those contained in the APA) as of the date follows: (a) The Merchant is, and during the term Sale Term will continue to be, duly authorized and qualified to do business in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of the Merchant to execute and deliver this AgreementAgreement and the APA and perform fully its obligations and/or conduct of the Sale. (b) Except as may be required in connection with the issuance of any Sale Order: (i) the Future Receivables are not subject Merchant has the right, power, and authority to any claimsexecute and deliver this Agreement and each other document and agreement contemplated hereby, chargesincluding, lienswithout limitation, restrictionsthe APA (collectively, encumbrances or security interests of any nature whatsoevertogether with this Agreement, the “Sale Documents”) and to perform fully its obligations thereunder; (ii) the Merchant will has taken all necessary actions 37 required to authorize the execution, delivery, and performance of the Sale Documents, and no further consent or approval is required for the Merchant to enter into and deliver the Sale Documents, to perform its obligations thereunder, and to consummate the Sale, except for any such consent the failure of which to be obtained could not sell reasonably be expected to have a material adverse effect on the Future Receivables ability of the Merchant to another person or entityexecute and deliver this Agreement and perform fully its obligations hereunder and/or conduct of the Sale; and (iii) each of the Sale Documents has been duly executed and delivered by the Merchant and constitutes the legal, valid and binding obligation of Merchant enforceable in accordance with its terms. (c) The Merchant owns and will own at all times during the Sale Term, good and marketable title to all of the Merchandise and FF&E (such FF&E being identified in Exhibit 12.1(c)(1)) free and clear of all liens, claims, and encumbrances of any nature, other than the liens listed in Exhibit 12.1 and any applicable statutory liens. The Merchant shall not conduct business under create, incur, assume, or suffer to exist any name security interest, lien, or other charge or encumbrance upon or with respect to any of the Merchandise, the FF&E or the Proceeds other than as disclosed hereinprovided for herein (including those listed in Exhibit 12.1). The Sale Order shall provide that (following payment of the Initial Guarantee Payment and delivery of the Guarantee L/C and the Expense L/C) all such liens, claims, and encumbrances shall be transferred to and attach only to the Guaranteed Amount, Expenses, and any other amounts due to the Merchant hereunder. (i) The Merchant has maintained its pricing files in the ordinary course of business, and prices charged to the public for goods, including the “register price,” are the same in all material respects as set forth in such pricing files for the periods indicated therein (including Merchant’s catalogue and website, but excluding any “circular” or specially 38 advertised Merchandise); (ii) there are no material changes to the pricing files and records posted to the on-line dataroom, and no material changes to prices other than those reflected in the pricing files and records have been made; and (iii) all such pricing files and records are true and accurate in all material respects as to the selling price to the public for such goods (inclusive of prices in the Merchant’s catalogue and website, but excluding specially advertised Merchandise and without consideration of any point of sale markdowns) as of the dates and for the periods indicated therein. (e) All normal course permanent markdowns (price changes) on the Merchandise located at the Stores and Transferred Merchandise have been taken and have been programmed into Merchant’s registers and point of sales equipment. (f) The Merchant has not change its business location without in contemplation of the prior written consent Sale marked up or raised the price of Purchaserany items of Merchandise, or removed or altered any tickets or any indicia of clearance merchandise, in each case in contemplation of the Sale. The “register” price represents the selling price of each item of Merchandise reflected in the pricing files posted to the on-line dataroom, taking into account all “point of sale” markdowns and promotions and the status of any applicable item of Merchandise as “refurbished.” As of the Sale Commencement Date, the sale prices of Merchandise located in the Stores is consistent in all material respects as the selling prices for such Merchandise in the Merchant’s ongoing store locations. (g) Since May 1, 2008, the Merchant has not and shall not temporarily close its business for renovations or other purposes; (iv) Merchant will not change or add credit card processors or change the Account without the prior written approval of Purchaser; (v) Merchant will not take any action to intentionally discourage the use of credit cards, debit cards or other payment cards; (vi) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale purchase or transfer of ownership interests in Merchant to or from the Stores any Merchandise or goods outside the ordinary course, except as contemplated by this Agreement and as otherwise set forth herein and except to the extent that results in a change in ownership or voting control of Merchant, or such matters have been impacted by a sale or transfer of substantially all the commencement of the assets of Merchant; Bankruptcy Case. (viih) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over To the operation and/or control best of the Merchant’s business knowledge, all Merchandise is in compliance with all applicable federal, state, or business locations; local product safety laws, rules, and standards. The Merchant shall provide the Agent with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date and shall notify Agent of any product recalls it becomes aware of after the Sale Commencement Date. (viiii) Throughout the Sale Term, and after giving effect to the Sale Order, the Agent shall have the right, subject to the applicable agreements to which the Merchant is not a party (except as provided in the Sale Order), to the unencumbered use and occupancy of, and peaceful and quiet possession of, each of the Stores, the assets currently contemplating located at the filing Stores, and the utilities and other services provided at the Stores. The Merchant shall throughout the Sale Term maintain in good working order, condition, and repair, all cash registers, heating systems, air conditioning systems, elevators, escalators, and all other mechanical devices necessary for the conduct of the Sale at the Stores. Except any amounts owing as a bankruptcy proceeding or closing Merchant’s business result of the commencement of the Bankruptcy Case, and absent a bona fide dispute, throughout the Sale Term, as long as the Agent reimburses the Merchant for Expenses as provided herein, the Merchant shall remain current on all expenses and payables necessary for the conduct of the Sale (other than those relating to any period prior to the commencement of the Bankruptcy Case). (j) Except any amounts owing as a result of the commencement of the Bankruptcy Case, the Merchant has not retained any attorneypaid, other consultant and as long as the Agent reimburses the Merchant for Expenses as provided herein, the Merchant will continue to pay throughout the Sale Term, all self-insured or professional to provide any advicethe Merchant-funded employee benefit programs for current Store employees, assistance or planning with respect to the filing of a bankruptcy; (ix) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise including health and medical benefits and insurance and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations; (x) Merchant will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and shall show proof of such insurance upon demand; (xi) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xii) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xiii) Merchant will provide Purchaser copies of all documents related to Merchant’s card processing activity proper claims made or financial and banking affairs within five (5) days of a request by Purchaser; (xiv) Merchant will permit Purchaser to conduct a site inspection of Merchant’s business, including an inspection of Merchant’s credit card terminals, at any reasonable time during the term of this Agreement without notice to Merchant; (xv) Merchant will not take any action to cause the Future Receivables to be settled or delivered to any bank account other than the bank account that the Future Receivables are being settled or delivered to as of the date of this Agreement and made in accordance with such programs (other than those relating to any period prior to the terms of this Agreement; (xvi) Merchant will not enter into any financing agreement wherein and whereby the repayment terms commencement of the agreement require Merchant to make daily or weekly payments (NO “STACKING”Bankruptcy Case); (xvii) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Device for the purchase of Merchants products or services; (xviii) Merchant has not, will not and is not contemplating retaining/paying in any way a third-party debt consolidator, nor has the Purchaser consulted with nor will the Purchaser consult with, a third-party debt consolidator in contemplation of negotiating a change to the terms and conditions of this Agreement. Merchant understands clearly that the breach of any of the foregoing shall constitute a breach/event of default under this Agreement; (xviv) Merchant will not block Purchaser from receiving/requesting ACH remittances from Merchant’s Account and will act in good faith to enable Purchaser to access at all times the Account for purposes of electronic surveillance; and (xvv) has disclosed any condition that has resulting in or would result in a material adverse change to Merchant’s business and knows of no condition and there is no condition which is likely to result in a material adverse change to its business. Merchant understands that the violation of any of these covenants at any time would constitute a breach of this Agreement. Additionally, if any of the representations above are not true as of the date hereof, this would also constitute a breach of this Agreement. Page: 5 Deal Application ID:.