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

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants in favor of Agent as follows: (a) Except as set forth on Exhibit 10.1 (a) annexed hereto, Merchant (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; (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 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. (b) Subject to the issuance and entry of the Approval Order, Merchant has the right, power and authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the "Agency Documents") and to perform fully its obligations thereunder. Subject to the issuance and entry of the Approval Order, Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval on the part of Merchant is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder, and to consummate the Sale. Subject to the issuance and entry of the Approval Order, 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. Subject to the issuance and entry of the Approval Order and Section 365 of the Bankruptcy Code, no court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or materially impair, or is required for the Merchant's consummation of, the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as shall be obtained prior to the Sale Commencement Date, except for any such consent the failure of which to be obtained could not reasonably be expected to have a Material Adverse Effect. Other than for any consent as shall be obtained prior to the Sale Commencement Date, and those contracts or agreements identified by Merchant to Agent on or prior to the Sale Commencement Date, if any, no contract or other agreement to which the Merchant is a party or by which the Merchant is otherwise bound will prevent or materially impair the consummation of the Sale and the other transactions contemplated by this Agreement. (c) Subject to entry of the Approval Order, Merchant (i) owns good and marketable title to all of the Merchandise, and (ii) as of the applicable Real Property Closing Date, will own good and marketable title to the Real Property Interests, in each case, free and clear of all Liens, other than Permitted Encumbrances. (i) For the purposes of this Agreement, "Permitted Encumbrances" shall mean (a) Liens for taxes that are not yet due and payable; (b) Liens which, individually or in the aggregate, do not interfere with the present uses of or detract from the value of any one or more of the Real Property Locations or that would have a Material Adverse Effect on the operation of any of the Real Property Locations; (c) as to any Leased Property, any Lien encumbering, attaching to or otherwise affecting solely the interest of the landlord thereunder and not the interest of the tenant thereunder, and does not materially interfere with any rights of the tenant under the Lease; (d) as to any Real Property Interest, all covenants, conditions, restrictions, easements, rights of way and other similar matters of record which, individually or in the aggregate do not interfere with the present uses of or detract from the value of the Real Property Interest for such Real Property Location taken as a whole or that would have a Material Adverse Effect on the operations of the Real Property Locations; and (e) all building, zoning, land use and other similar laws affecting the Real Property Location, so long as law enforcement of same would not have a Material Adverse Effect on the continued operation of such Real Property Location as currently operated.

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants in favor of Agent as follows: (a) Except as set forth on Exhibit 10.1 (a) annexed hereto, each entity comprising Merchant (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction state or province of its incorporationformation (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 is, and during the 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 Effectmaterial adverse effect on the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder. (b) Subject to Except as may be required in connection with the issuance and entry of the Approval Order, : (i) the Merchant has the right, power and authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the "“Agency Documents"”) and to perform fully its obligations thereunder. Subject to the issuance and entry of the Approval Order, ; (ii) Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval on the part of Merchant is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder, thereunder and to consummate the Sale. Subject , except for any such consent the failure of which to be obtained could not reasonably be expected to have a material adverse effect on the issuance ability of Merchant to execute and entry of the Approval Order, 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. Subject to the issuance and entry of the Approval Order and Section 365 of the Bankruptcy Code, no court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or materially impair, or is required for the Merchant's consummation of, the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as shall be obtained prior to the Sale Commencement Date, except for any such consent the failure of which to be obtained could not reasonably be expected to have a Material Adverse Effect. Other than for any consent as shall be obtained prior to the Sale Commencement Date, and those contracts or agreements identified by Merchant to Agent on or prior to the Sale Commencement Date, if any, no contract or other agreement to which the Merchant is a party or by which the Merchant is otherwise bound will prevent or materially impair the consummation of the Sale and the other transactions contemplated by this Agreement. (c) Subject to entry of Merchant owns, and will own at all times during the Approval OrderSale Term, Merchant (i) owns good and marketable title to all of the Merchandise, Merchandise and Owned FF&E (iisuch Owned FF&E being identified in Exhibit 11.1(c)) as of to be included in the applicable Real Property Closing Date, will own good and marketable title to the Real Property Interests, in each caseSale, free and clear of all Liensliens, claims and encumbrances of any nature, other than Permitted Encumbrancesthe liens listed on Exhibit 11.1(c)(i),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 create, incur, assume or suffer to exist any 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 provided for herein (including those listed on Exhibit 11.1(c)(i)). 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 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 retained service provider. (e) Except with respect to Merchant’s termination of point of sale events prior to the Sale Commencement Date in the manner previously disclosed to Agent, to its knowledge Merchant has not marked up or raised, and shall not up to the Sale Commencement Date xxxx 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 the effects of the termination of promotional events. (f) Through the Sale Commencement Date, Merchant shall use reasonable efforts to ticket or xxxx 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 Merchant’s ordinary course past practices and policies relative to pricing and marking inventory. (g) Since June 19, 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 or Excluded Defective Merchandise outside the ordinary course except for the transfer of Distribution Center Inventory, provided that, since June 19, 2011, Merchant has not, and through the completion of the Inventory Taking, Merchant shall not transfer to or from the Stores any Return to Vendor Inventory unless Agent has agreed to such transfers. Merchant’s 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 July 19, 2011, Merchant shall discontinue issuing new orders for replenishment for the Stores. (h) 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 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 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 reasonably deems necessary for the Sale to be conducted without material interruption and in a manner that is safe and in 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 otherwise restricted by the Chapter 11 Case filing or as otherwise provided in this Agreement, 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. (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 June 19, 2011, Merchant 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 employ, Merchant increased the salaries of such employees (such action not being with any intent to increase any Expense of the Sale or in anticipation thereof); and (ii) 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 covenants to continue to operate the Stores in all material respects in the ordinary course of business from the date of this Agreement to the Sale Commencement Date by: (i) selling inventory during such period at customary prices consistent with the ordinary course of business; (ii) not promoting or advertising any sales or in-store promotions (including POS promotions) to the 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, as reflected on Exhibit 11.1(l)); (iii) except as may occur in the ordinary course of business or as may be required by applicable law, not returning inventory to vendors and not transferring inventory or supplies between or among Stores; and (iv) except as may occur in the ordinary course of business, not making any management personnel moves or changes at the Stores without prior written notice to and consultation with (but not approval of) Agent. (m) The aggregate Cost Value of the Merchandise as a percentage of the aggregate Retail Price of the Merchandise (as determined in accordance with Sections 5.1 and 5.3) (the “Cost Factor”) shall not be greater than 51.1% (the “Cost Factor Threshold”). To the extent that the actual Cost Factor for the Merchandise is greater than the Cost Factor Threshold, then such deviation shall not constitute a breach of any representation or warranty, or an Event of Default; provided, however, that, then the Guaranty Percentage shall adjust (in addition to any adjustment applicable pursuant to section 3.1(c) hereof) in accordance with Exhibit 11.1(m). For the purposes of this Agreement, "Permitted Encumbrances" “Retail Price” means the lower of (i) the lowest ticketed, marked or shelf price, (ii) the current selling price for such item of Merchandise, excluding in each instance Excluded Price Adjustments or (iii) the current retail or aged price, as applicable, for each item of Merchandise, as reflected in the Merchant’s Perpetual File. If an item of Merchandise has more than one ticketed price, or if multiple items of the same SKU are ticketed at different prices, or have a different PLU price, and such pricing does not otherwise qualify as an Excluded Price Adjustment, the lowest ticketed, marked or PLU price on any such item shall mean (a) Liens prevail for taxes such item or for all such items within the same SKU, as the case may be, that are not yet due located within the same location (as the case may be, the “Lowest Location Price”), unless it is reasonably determined by Merchant and payableAgent that the applicable Lowest Location Price was mismarked or such item was priced because it was damaged or marked as “as is,” in which case the higher price shall control; (b) Liens whichprovided, individually however, in determining the Lowest Location Price with respect to any item of Merchandise at a Store, the Lowest Location Price shall be determined based upon the lowest ticketed, marked or PLU price for such item on a per Store basis. No adjustment to Retail Price shall be made with respect to different ticketed price, marked price, or PLU prices for items located in different Stores. For purposes of this Agreement, the aggregate, do not interfere with Cost Factor shall be calculated by dividing the present uses of or detract from the value of any one or more aggregate Cost Value of the Real Property Locations or that would have a Material Adverse Effect on Merchandise by the operation of any aggregate Retail Price of the Real Property Locations; (c) as to any Leased Property, any Lien encumbering, attaching to or otherwise affecting solely the interest of the landlord thereunder and not the interest of the tenant thereunder, and does not materially interfere with any rights of the tenant under the Lease; (d) as to any Real Property Interest, all covenants, conditions, restrictions, easements, rights of way and other similar matters of record which, individually or in the aggregate do not interfere with the present uses of or detract from the value of the Real Property Interest for such Real Property Location taken as a whole or that would have a Material Adverse Effect on the operations of the Real Property Locations; and (e) all building, zoning, land use and other similar laws affecting the Real Property Location, so long as law enforcement of same would not have a Material Adverse Effect on the continued operation of such Real Property Location as currently operatedMerchandise.

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants in favor of Agent Purchaser as follows: (a) Except as set forth on Exhibit 10.1 (a) annexed heretoAs of the date of this Agreement and at the Closing, Merchant (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its incorporationDelaware; (ii) has all requisite corporate power and authority to own, lease and operate its assets and properties the Assets and to carry on its business as presently conducted; and (iii) is is, and during the 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 Effectmaterial adverse effect on the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder; and (iv) has paid when due, and until the sale or other disposition of all of the Assets, will continue to pay when due, all United States Trustee fees. (b) Subject only to the issuance and entry of the Approval Order, Merchant Merchant, as of the date of this Agreement and at the Closing, has the right, power and authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the "“Agency Documents"”) and to perform fully its obligations thereunder. Subject to the issuance and entry of the Approval Order, Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval on the part of Merchant is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder, thereunder and to consummate the Sale. Subject to the issuance and entry of the Approval Order, 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. Subject to the issuance and entry of the Approval Order and Section 365 of the Bankruptcy Code, no court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or materially impair, or is required for the Merchant's consummation of, the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as shall be obtained prior to the Sale Commencement Date, except for any such consent the failure of which to be obtained could not reasonably be expected to have a Material Adverse Effect. Other than for any consent as shall be obtained prior to the Sale Commencement Date, and those contracts or agreements identified by Merchant to Agent on or prior to the Sale Commencement Date, if any, no contract or other agreement to which the Merchant is a party or by which the Merchant is otherwise bound will prevent or materially delay or impair the consummation ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder. Each of the Sale Agency Documents has been duly executed and delivered by Merchant and, upon the other transactions contemplated due authorization, counter-execution, and delivery of this Agreement by this AgreementPurchaser, constitutes the legal, valid and binding obligation of Merchant enforceable in accordance with its terms. (c) Subject The Cash Purchase Price determined pursuant to entry Section 3.1(a) above shall not exceed $574,831,000 as of April 19, 2018. (d) Merchant, as of the Approval Orderdate of this Agreement and at the Closing, Merchant (i) owns good and marketable title to all of the Merchandise, and (ii) as of the applicable Real Property Closing Date, will own good and marketable title to the Real Property Interests, in each caseAssets, free and clear of all Lienssecurity interests, liens, claims and encumbrances of any nature other than Permitted Encumbrancesthe security interests securing the DIP Obligations (as defined in the Final DIP Order) and the Second-Lien Notes. Merchant shall not create, incur, assume or suffer to exist any security interest, lien or other charge or encumbrance upon or with respect to any of the Assets. From and after the Closing, subject to the Wind-Down Budget, Merchant shall perform such tasks and services as are necessary to maintain all of the Assets in salable condition, to preserve the Assets and the economic value thereof, and to maintain good, clear, and marketable title to all of the Assets at all times until all Assets have been sold or otherwise disposed of, and such tasks and services as Purchaser may otherwise reasonably request in connection with the Assets, including but not limited to paying all ad valorem taxes and utilities when due, performing all routine maintenance, cooperating with Purchaser to obtain the refund of all deposits and security deposits, and renewing all necessary licenses and registrations (collectively, all of the foregoing are the “Wind-Down Services”). (e) 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, 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 discounts, 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 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. (f) Through the Sale Commencement Date, Merchant has ticketed or marked, and shall continue to ticket or xxxx, all items of inventory received at the Stores in a manner consistent with similar Merchandise located at the Stores, and in accordance with Merchant’s ordinary course past practices and policies relative to pricing and marking inventory. (g) Since March 1, 2018, Merchant has not, and through the Sale Commencement Date Merchant shall not, purchase for or transfer to or from the Stores any merchandise or goods outside the ordinary course. (h) To Merchant’s knowledge after reasonable inquiry, all Merchandise is in compliance with all applicable federal, state and 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. (i) For Subject to the purposes Wind-Down Budget, 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 or appropriate for the conduct of the Sale at the Stores. Except as otherwise restricted by the Bankruptcy Code upon filing of the Bankruptcy Case or the Wind-Down Budget, and absent a bona fide dispute, throughout the Sale Term, Merchant shall remain current on all expenses and payables necessary or appropriate for the conduct of the GOB Sale. (j) Subject the Wind-Down Budget, payment of Expenses by Agent, and approval by the Bankruptcy Court, Merchant has 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. (k) Since March 1, 2018, Merchant has not taken, and shall not throughout the Sale Term take, any actions with the intent of increasing the Expenses of the Sale, including without limitation increasing salaries or other amounts payable to employees; except to the extent an employee was due an annual raise in the ordinary course. (l) Prior to the execution of this Agreement, "Permitted Encumbrances" shall mean (a) Liens for taxes that are not yet due Merchant has provided Agent reasonable access to all pricing and payable; (b) Liens whichcost files, individually computer hardware, software and data files, inter-Stores transfer logs, markdown schedules, invoices, style runs and all other documents relative to the price, mix and quantities of inventory located at the Stores and the Distribution Centers or on order or in transit. (m) To Merchant’s knowledge after reasonable inquiry, all documents, information and supplements provided by Merchant to Agent in connection with Agent’s due diligence and the aggregatenegotiation of this Agreement were true and accurate in all material respects at the time provided. (n) Other than filing the Bankruptcy Case, do not interfere with no action, arbitration, suit, notice, or legal, administrative or other proceeding before any court or governmental body has been instituted by or against Merchant, or has been settled or resolved, or to Merchant’s knowledge, is threatened against or affects Merchant, relative to Merchant’s business or properties, or which questions the present uses validity of this Agreement, or detract from that if adversely determined, would adversely affect the value of any one or more conduct of the Real Property Locations or that would have a Material Adverse Effect on the operation of any of the Real Property Locations; Sale. The representations set forth in Sections 11.1(e), (c) as to any Leased Propertyf), any Lien encumbering, attaching to or otherwise affecting solely the interest of the landlord thereunder and not the interest of the tenant thereunder(g), and does (h) shall not materially interfere with any rights of survive the tenant under the Lease; (d) as to any Real Property Interest, all covenants, conditions, restrictions, easements, rights of way and other similar matters of record which, individually or in the aggregate do not interfere with the present uses of or detract from the value of the Real Property Interest for such Real Property Location taken as a whole or that would have a Material Adverse Effect on the operations of the Real Property Locations; and (e) all building, zoning, land use and other similar laws affecting the Real Property Location, so long as law enforcement of same would not have a Material Adverse Effect on the continued operation of such Real Property Location as currently operatedClosing.

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants in favor of Agent as follows: (a) Except as set forth on Exhibit 10.1 (a) annexed hereto, each entity comprising Merchant (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction state or province of its incorporationformation (except as may be a result of the commencement and/or pendency of the Merchant’s Chapter 11 Cases; (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 is, and during the 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 Effectmaterial adverse effect on the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder. (b) Subject to Except as may be required in connection with the issuance and entry of the Approval Order, as applicable, and subject to the consent of the Lenders, the Indenture Trustee, and the Ad Hoc Note holder Committee (subject to the rights and limitations set forth in the Intercreditor Agreement and the DIP Orders ): (i) the Merchant has the right, power and authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the "“Agency Documents"”) and to perform fully its obligations thereunder. Subject to the issuance and entry of the Approval Order, ; (ii) Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval on the part of Merchant is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder, thereunder and to consummate the Sale. Subject , except for any such consent the failure of which to be obtained could not reasonably be expected to have a material adverse effect on the issuance ability of Merchant to execute and entry of the Approval Order, 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. Subject to the issuance and entry of the Approval Order and Section 365 of the Bankruptcy Code, no court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or materially impair, or is required for the Merchant's consummation of, the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as shall be obtained prior to the Sale Commencement Date, except for any such consent the failure of which to be obtained could not reasonably be expected to have a Material Adverse Effect. Other than for any consent as shall be obtained prior to the Sale Commencement Date, and those contracts or agreements identified by Merchant to Agent on or prior to the Sale Commencement Date, if any, no contract or other agreement to which the Merchant is a party or by which the Merchant is otherwise bound will prevent or materially impair the consummation of the Sale and the other transactions contemplated by this Agreement. (c) Subject to entry of Merchant owns, and will own at all times during the Approval OrderSale Term, Merchant (i) owns good and marketable title to all of the Merchandise, and (ii) as of Merchandise to be included in the applicable Real Property Closing Date, will own good and marketable title to the Real Property Interests, in each caseSale, free and clear of all Liensliens, claims and encumbrances of any nature, other than Permitted Encumbrances. (ithe liens listed on Exhibit 11.1(c) For and any applicable statutory liens; provided however, it is understood that with respect to On-Order Merchandise, Merchant shall not have title to such goods until such time as title passes and provided for under the purposes of this Agreementrespective vendor agreements and purchaser order. Merchant shall not create, "Permitted Encumbrances" shall mean (a) Liens for taxes that are not yet due and payable; (b) Liens whichincur, individually assume or in the aggregatesuffer to exist any security interest, do not interfere lien or other charge or encumbrance upon or with the present uses of or detract from the value of any one or more of the Real Property Locations or that would have a Material Adverse Effect on the operation of respect to any of the Real Property Locations; Merchandise or the Proceeds other than as provided for herein (c) as including those listed on Exhibit 11.1(c)). Any Approval Order shall provide that all such liens shall be transferred to any Leased Property, any Lien encumbering, attaching and attach only to the Guaranteed Amount or otherwise affecting solely the interest of the landlord thereunder and not the interest of the tenant thereunder, and does not materially interfere with any rights of the tenant under the Lease; (d) as other amounts payable to any Real Property Interest, all covenants, conditions, restrictions, easements, rights of way and other similar matters of record which, individually or in the aggregate do not interfere with the present uses of or detract from the value of the Real Property Interest for such Real Property Location taken as a whole or that would have a Material Adverse Effect on the operations of the Real Property Locations; and (e) all building, zoning, land use and other similar laws affecting the Real Property Location, so long as law enforcement of same would not have a Material Adverse Effect on the continued operation of such Real Property Location as currently operatedMerchant hereunder.

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants in favor of Agent as follows: (a) Except as set forth on Exhibit 10.1 (a) annexed hereto, each entity comprising Merchant (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction state or province of its incorporationformation (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 is, and during the 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 Effectmaterial adverse effect on the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder. (b) Subject to Except as may be required in connection with the issuance and entry of the Approval Order, and subject to the consent of the Lenders, the Indenture Trustee, and the Ad Hoc Noteholder Committee (subject to the rights and limitations set forth in the Intercreditor Agreement and the DIP Orders ): (i) the Merchant has the right, power and authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the "“Agency Documents"”) and to perform fully its obligations thereunder. Subject to the issuance and entry of the Approval Order, ; (ii) Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval on the part of Merchant is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder, thereunder and to consummate the Sale. Subject , except for any such consent the failure of which to be obtained could not reasonably be expected to have a material adverse effect on the issuance ability of Merchant to execute and entry of the Approval Order, 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. Subject to the issuance and entry of the Approval Order and Section 365 of the Bankruptcy Code, no court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or materially impair, or is required for the Merchant's consummation of, the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as shall be obtained prior to the Sale Commencement Date, except for any such consent the failure of which to be obtained could not reasonably be expected to have a Material Adverse Effect. Other than for any consent as shall be obtained prior to the Sale Commencement Date, and those contracts or agreements identified by Merchant to Agent on or prior to the Sale Commencement Date, if any, no contract or other agreement to which the Merchant is a party or by which the Merchant is otherwise bound will prevent or materially impair the consummation of the Sale and the other transactions contemplated by this Agreement. (c) Subject to entry of Merchant owns, and will own at all times during the Approval OrderSale Term, Merchant (i) owns good and marketable title to all of the Merchandise, and (ii) as of Merchandise to be included in the applicable Real Property Closing Date, will own good and marketable title to the Real Property Interests, in each caseSale, free and clear of all Liensliens, claims and encumbrances of any nature, other than Permitted Encumbrances. (ithe liens listed on Exhibit 11.1(c) For the purposes of this Agreementand any applicable statutory liens. Merchant shall not create, "Permitted Encumbrances" shall mean (a) Liens for taxes that are not yet due and payable; (b) Liens whichincur, individually assume or in the aggregatesuffer to exist any security interest, do not interfere lien or other charge or encumbrance upon or with the present uses of or detract from the value of any one or more of the Real Property Locations or that would have a Material Adverse Effect on the operation of respect to any of the Real Property Locations; Merchandise or the Proceeds other than as provided for herein (c) as including those listed on Exhibit 11.1(c)). Any Approval Order shall provide that all such liens shall be transferred to any Leased Property, any Lien encumbering, attaching and attach only to the Guaranteed Amount or otherwise affecting solely the interest of the landlord thereunder and not the interest of the tenant thereunder, and does not materially interfere with any rights of the tenant under the Lease; (d) as other amounts payable to any Real Property Interest, all covenants, conditions, restrictions, easements, rights of way and other similar matters of record which, individually or in the aggregate do not interfere with the present uses of or detract from the value of the Real Property Interest for such Real Property Location taken as a whole or that would have a Material Adverse Effect on the operations of the Real Property Locations; and (e) all building, zoning, land use and other similar laws affecting the Real Property Location, so long as law enforcement of same would not have a Material Adverse Effect on the continued operation of such Real Property Location as currently operatedMerchant hereunder.

Merchant’s Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants in favor of Agent as follows: (a) Except as set forth on Exhibit 10.1 (a) annexed hereto, Each 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 jurisdiction state or province of its incorporationformation (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 is, and during the 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 Effectmaterial adverse effect on the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder. (b) Subject to the issuance and entry receipt of the Approval Order, : (i) Merchant has the right, power and authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the "“Agency Documents"”) and to perform fully its obligations thereunder. Subject to the issuance and entry of the Approval Order, ; (ii) Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval on the part of Merchant is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder, thereunder and to consummate the Sale. Subject , except for any such consent the failure of which to be obtained could not reasonably be expected to have a material adverse effect on the issuance ability of Merchant to execute and entry of the Approval Order, 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. Subject . (c) Merchant owns, and will own at all times during the Sale Term, good and marketable title to the issuance and entry all of the Approval Order Merchandise to be included in the Sale, free and Section 365 clear of the Bankruptcy Codeall liens, no court order or decree claims and encumbrances of any federal, state or local governmental authority or regulatory body is in effect that would prevent or materially impair, or is required for the Merchant's consummation of, the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefornature, other than the liens listed on Exhibit 11.1(c) and any applicable statutory liens. Merchant shall not create, incur, assume or suffer to exist any security interest, lien or other charge or encumbrance upon or with respect to any of the Merchandise or the Proceeds other than as provided 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 obtained prior 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 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, except for Merchant has, and shall continue to, ticket or xxxx all items of inventory received at the Stores in a manner consistent with similar Merchandise located at the Stores, Merchant’s other stores, and in accordance with Merchant’s ordinary course past practices and policies relative to pricing and marking inventory. Merchant has not removed any such consent sale stickers or other markings indicating items are on sale from the failure of which to be obtained could not reasonably be expected to have a Material Adverse Effect. Other than for any consent as shall be obtained Merchandise prior to the Sale Commencement Date, and those contracts has not raised, and will not raise, prices of any Merchandise in contemplation of the Sale. (f) Since the Petition Date, Merchant has not, and through the Sale Commencement Date Merchant shall not, purchase for or agreements identified by transfer to or from the Stores any merchandise or goods outside the ordinary course. (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 to shall provide Agent on or with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date, if any, no contract or other agreement to which the Merchant is a party or by which the Merchant is otherwise bound will prevent or materially impair the consummation of the Sale and the other transactions contemplated by this Agreement. (ch) Subject to entry the provisions of the Approval Order, throughout the Sale Term, 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. 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 (i) owns good and marketable title to all the conduct of the MerchandiseSale at the Stores. Except any amounts owing as a result of the commencement of any Chapter 11 Case, and (ii) as absent a bona fide dispute, throughout the Sale Term Merchant shall remain current on all expenses and payables necessary for the conduct of the applicable Real Property Closing Date, will own good and marketable title Sale (other than those relating to any period prior to the Real Property Interestscommencement of any Chapter 11 Case), in each case, free and clear of all Liens, other than Permitted Encumbrancessubject to any restrictions that may be imposed under the Bankruptcy Code. (i) For Except any amounts owing as a result of the purposes commencement of this Agreementany Chapter 11 Case, "Permitted Encumbrances" 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) Since the Petition Date, Merchant has not taken, and shall mean (a) Liens for taxes that are not yet due and payable; (b) Liens whichthroughout the Sale Term take, individually or in the aggregate, do not interfere any actions with the present uses intent of increasing the Expenses of the Sale, including, without limitation, increasing salaries or detract from the value of any other amounts payable to employees, except (i) there may be instances that, in an effort to encourage one or more employees to remain in Merchant’s employ, Merchant increased the salaries of or agreed to provide bonuses to such employees (such action not being with any intent to increase any Expenses of the Real Property Locations or that would have a Material Adverse Effect on the operation of any of the Real Property Locations; (c) as to any Leased Property, any Lien encumbering, attaching to or otherwise affecting solely the interest of the landlord thereunder and not the interest of the tenant thereunder, and does not materially interfere with any rights of the tenant under the Lease; (d) as to any Real Property Interest, all covenants, conditions, restrictions, easements, rights of way and other similar matters of record which, individually Sale or in the aggregate do not interfere with the present uses of or detract from the value of the Real Property Interest for such Real Property Location taken as a whole or that would have a Material Adverse Effect on the operations of the Real Property Locationsanticipation thereof); and (eii) to the extent an employee was due an annual raise. Merchant shall discontinue the foregoing practices from and after the date hereof, unless otherwise agreed in writing between Merchant and Agent. (k) Except as may be impacted by the filing of the Chapter 11 Case, or otherwise restricted by the Chapter 11 filing and the motions and pleadings filed in connection therewith, Merchant has since the Petition Date, and Merchant covenants to continue to operate the Stores in all buildingmaterial respects in the ordinary course of business from the date of this Agreement to the Sale Commencement Date by: (i) selling inventory during such period at customary prices consistent with the ordinary course of business; (ii) not promoting or advertising any sales or in-store promotions (including POS promotions) to the public; (iii) except as may occur in the ordinary course of business, zoningnot returning inventory to vendors and not transferring inventory or supplies between or among Stores (or among Merchant’s other stores); and (iv) not making any management personnel moves or changes at the Stores without prior written notice to and consultation with (but not approval of) Agent. (l) As of the Sale Commencement Date, land use the assortment, mix and other similar laws affecting quantity of the Real Property LocationMerchandise, so long by category, shall not be materially different than as law enforcement set forth on Exhibit 11.1(l). To the extent that, after the Inventory Taking, it is determined that the assortment and mix of same would not have a Material Adverse Effect the Merchandise, by category, as of the Sale Commencement Date was materially different than as set forth on Exhibit 11.1(l), Merchant and Agent shall mutually and in good faith agree upon an adequate remedy for the continued operation breach of such Real Property Location as currently operatedthe representation in this Section 11.1(l). (m) To the 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 were true and accurate in all material respects at the time provided.