Common use of Assumption and Assignment of Contracts Clause in Contracts

Assumption and Assignment of Contracts. (a) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Buyer, of the Assumed Contracts on the terms and conditions set forth in the remainder of this Section 2.6, and shall provide for the Designation Deadline as defined herein. At Buyer’s request, and at Buyer’s cost and expense, Sellers shall reasonably cooperate from the date hereof forward with Buyer as reasonably requested by Buyer (i) to allow Buyer to enter into an amendment of any Lease upon assumption of such Lease by Buyer (and Sellers shall reasonably cooperate with Buyer to the extent reasonably requested with Buyer in negotiations with the landlords thereof), or (ii) to otherwise amend any Lease to the extent such amendments would not adversely affect any Seller; provided that Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by any Seller of such Lease, unless such Lease will be assigned to Buyer at the time of such assumption. (b) Buyer shall, prior to the hearing on the Sale Motion, identify the Non-Real Property Contracts and Leases that Buyer has decided will be Assumed Contracts to be assumed and assigned to Buyer on the Closing Date by providing a list thereof to Sellers (as updated in accordance with this Agreement, the “Closing Assumed Contract List”). Up to 3 Business Days prior to the Closing Date, Buyer may, in its sole discretion, add or remove any Non-Real Property Contract or Lease as an Assumed Contract to be assumed and assigned to Buyer on the Closing Date by amending the Closing Assumed Contract List, and, in connection with the Closing, the applicable Seller shall move in the Bankruptcy Court to assign any such Non-Real Property Contract or Lease on the Closing Assumed Contract List to Buyer, and at the Closing shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. In advance of the Closing Date, Buyer may, in its sole discretion, designate a Non-Real Property Contract or Lease for exclusion and rejection by delivering written notice to Sellers and, in connection with the Closing, the applicable Seller shall move to reject any such Non-Real Property Contract or Lease as of the Closing Date (which date shall constitute the Rejection Effective Date with respect thereto). From and after the Closing Date until the Designation Deadline, with respect to any Non-Real Property Contract or Lease that was neither included on the Closing Assumed Contract List nor excluded and rejected as of the Closing Date, Buyer may, in its sole discretion, (i) designate such Non-Real Property Contract or Lease as an Assumed Contract by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be assumed by Sellers and assigned to Buyer or (ii) designate such Non-Real Property Contract or Lease for exclusion and rejection for purposes of this Agreement and, if executory, to be rejected by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be excluded and rejected by the applicable Seller and the date that such rejection shall be effective, which rejection shall be effective upon the delivery of such notice to Sellers (each, a “Rejection Effective Date”); provided, however, that, notwithstanding anything herein to the contrary, Buyer may not designate any Lease for exclusion and rejection if such exclusion and rejection would result in fewer than 140 Leases being assumed and assigned to Buyer. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(i), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to assign such Non-Real Property Contract or Lease to Buyer and shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(ii), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to reject such Non-Real Property Contract or Lease as of the applicable Rejection Effective Date. In the event that Buyer has not provided a written designation to assume and assign or reject any Non-Real Property Contract or Lease pursuant to this Section 2.6(b) by the Designation Deadline, then such Non-Real Property Contract or Lease shall be deemed to be excluded and rejected and Sellers may move in the Bankruptcy Court to reject such Non-Real Property Contract or Lease as of the Designation Deadline (which Designation Deadline shall constitute the Rejection Effective Date with respect thereto), and no Seller shall have any obligation to assign any such Non-Real Property Contract or Lease to Buyer hereunder. Any Non-Real Property Contract or Lease that is designated (or deemed to be designated) for exclusion and rejection pursuant to this Section 2.6(b) shall constitute an “Excluded Contract” as of the Closing Date or, if thereafter, as of the Rejection Effective Date. To the extent that a Non-Real Property Contract or Lease has not at Closing been designated as an Excluded Contract or an Assumed Contract, then, until the Rejection Effective Date, Buyer shall be obligated to perform or cause to be performed all of Sellers’ obligations under such Non-Real Property Contract or Lease, and Buyer shall be entitled to all benefits of Sellers thereunder; provided that no Cure Amount shall be due with respect to such Non-Real Property Contract or Lease until the permanent assumption thereof at Assumption Approval in accordance with Section 2.6(g). Notwithstanding anything to the contrary contained herein, prior to the Designation Deadline, Buyers shall have designated for assumption by Sellers and assignment to Buyers such number of Leases that when added to any Leases included in the Assumed Contracts as of the Closing equals at least 140 Leases. In determining the total number of Leases assumed and assigned to Buyer, the following shall be included (in addition to Leases actually assumed and assigned to Buyer): (x) store locations that were previously closed by Sellers but reopened by Buyer (provided that Buyer pays the Cure Amounts due with respect to the Lease for such store); and (y) any Lease for which the landlord thereunder objects to the assignment and assumption of such Lease for any reason (other than payment of the Cure Amount) and such objection is not resolved in a manner acceptable to Buyer. (c) After the Closing and prior to the Designation Deadline, Sellers shall not terminate, amend, supplement, modify, waive any rights under, or create any Lien with respect to any Non-Real Property Contract or any Lease, or take any affirmative action not required by the terms thereof, without the prior written consent of Buyer (not to be unreasonably withheld or delayed), unless Buyer has provided notice to Sellers in writing designating such Non-Real Property Contract or Lease for rejection pursuant to Section 2.6(b). (d) Within three (3) Business Days of Buyer’s delivery of any notice of removal or designation of any Non-Real Property Contract or Lease as an Assumed Contract by Buyer pursuant to Section 2.6(b), or such lesser time as is approved by the Bankruptcy Court, Sellers shall give notice of the removal or designation of such Non-Real Property Contract or Lease as an Assumed Contract to the other parties thereto. (e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing ten (10) Business Days’ prior notice of its intent to assume and assign any Contract, the Bankruptcy Court deem any non-debtor party to such Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any required Consent to the assumption of the Contract by the relevant Seller and assignment to Buyer. (f) In connection with the assumption and assignment to Buyer of any Assumed Contract that is executory pursuant to this Section 2.6, the cure amounts, as determined by the Bankruptcy Court, if any (such amounts, the “Cure Amounts”), necessary to cure all defaults, if any, and to pay all actual or pecuniary losses that have resulted from such defaults under the Assumed Contracts, including any amounts payable to any landlord under any Lease that is an Assumed Contract that relates to the period prior to the Assumption Approval, shall be paid by Buyer, on or before the Assumption Approval, and not by Sellers and Sellers shall have no liability therefor, and neither the Cure Amounts paid by nor the expense of any other obligation set forth in this Section 2.6(f) shall reduce, directly or indirectly, any consideration received by Sellers hereunder; provided that any applicable Cure Amounts with regard to Assumed Contracts listed in the Closing Assumed Contract List shall be paid by Buyer at the Closing. (g) Sellers shall use their respective commercially reasonable efforts to obtain an order of the Bankruptcy Court to assign the Assumed Contracts to Buyer (the “Assumption Approval”) on the terms set forth in this Section 2.6. In the event Sellers are unable to assign any such Assumed Contract to Buyer pursuant to an order of the Bankruptcy Court, then the Parties shall use their commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Consents from Governmental Entities and third parties necessary to assume and assign such Assumed Contracts to Buyer, including, in the case of Buyer, paying any applicable Cure Amounts. (h) To the extent that any Consent that is required to assign to Buyer any Assumed Contract is not obtained by the Designation Deadline, each Seller shall, with respect to each such Assumed Contract, from and after the Closing and until the earliest to occur of (x) the date on which such applicable Consent is obtained (which Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Buyer), and (y) the date on which such Contract is rejected following the written request of Buyer, use commercially reasonable efforts during the term of such Assumed Contract to (i) provide to Buyer the benefits under such Assumed Contract, (ii) cooperate in any reasonable and lawful arrangement (including holding such Contract in trust for Buyer pending receipt of the required Consent) designed to provide such benefits to Buyer and (iii) use its commercially reasonable efforts to enforce for the account of Buyer any rights of such Seller under such Assumed Contract (including the right to elect to terminate such Assumed Contract in accordance with the terms thereof upon the written direction of Buyer). Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Buyer the benefits contemplated by this Section 2.6(h). (i) Notwithstanding the foregoing, a Contract shall not be an Assumed Contract hereunder and shall not be assigned to, or assumed by, Buyer to the extent that such Contract (i) is rejected by a Seller or terminated by a Seller in accordance with the terms hereof or by the other party thereto, or terminates or expires by its terms, on or prior to the Designation Deadline and is not continued or otherwise extended upon assumption, or (ii) requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to Buyer of Sellers’ rights under such Contract, and no such Consent has been obtained prior to the Designation Deadline. In addition, a Permit shall not be assigned to, or assumed by, Buyer to the extent that such Permit requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to Buyer of Sellers’ rights under such Permit, and no such Consent has been obtained prior to the Closing.

Assumption and Assignment of Contracts. (a) The Sale Order shall provide for the assumption by Sellersthe Domestic Selling Entities, and the assignment Sale Order shall, to the extent legally capable of being assigned permitted by Sellers Law, provide for the assignment by the Domestic Selling Entities to Buyerthe Buyer and/or one or more Buyer Designees, of the Assumed Contracts Domestic Agreements and the Assumed Domestic Real Property Leases on the terms and conditions set forth in the remainder of this Section 2.62.5, and shall provide for the Designation Deadline as defined herein. At the Buyer’s request, and at the Buyer’s cost and expense, Sellers the Selling Entities shall reasonably cooperate from with the date hereof forward with Buyer as reasonably requested by the Buyer (i) to allow the Buyer to enter into an amendment of with any Domestic Real Property Lease upon assumption of such Domestic Real Property Lease by the Buyer (or a Buyer Designee, and Sellers shall reasonably cooperate with the Buyer to the extent reasonably requested with the Buyer in negotiations with the landlords thereof), or (ii) to otherwise amend any Domestic Real Property Lease to the extent such amendments would not adversely affect any Sellerof the Selling Entities; provided that Sellers the Selling Entities shall not be required to enter into any such amendment if such amendment would result in an assumption by any Seller Selling Entity of such Domestic Real Property Lease, unless such Domestic Real Property Lease will be assigned to the Buyer or a Buyer Designee at the time of such assumption. (b) Buyer shall, On or prior to the hearing on the Sale Motion, identify the Non-Real Property Contracts and Leases that Buyer has decided will be Assumed Contracts to be assumed and assigned to Buyer on the Closing Date by providing a list thereof to Sellers (as updated in accordance with this Agreement, the “Closing Assumed Contract List”). Up to 3 Business Days prior to the Closing Date, Buyer may, in its sole discretion, add or remove any Non-Real Property Contract or Lease as an Assumed Contract to be assumed and assigned to Buyer on the Closing Date by amending the Closing Assumed Contract List, and, in connection with the Closing, the applicable Seller shall move in the Bankruptcy Court to assign any such Non-Real Property Contract or Lease on the Closing Assumed Contract List to Buyer, and at the Closing shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. In advance of the Closing Date, Buyer may, in its sole discretion, designate a Non-Real Property Contract or Lease for exclusion and rejection by delivering written notice to Sellers and, in connection with the Closing, the applicable Seller shall move to reject any such Non-Real Property Contract or Lease as of the Closing Date (which date shall constitute the Rejection Effective Date with respect thereto). From and after the Closing Date until the Designation Deadline, with respect to any Non-Real Property Contract or Lease that was neither included on the Closing Assumed Contract List nor excluded and rejected as of the Closing Date, Buyer may, in its sole discretion, (ii)(x) designate any Domestic Non-Real Property Contract as an Assumed Domestic Agreement or any Domestic Real Property Lease as an Assumed Domestic Real Property Lease, and (y) from and after the Closing, by providing written notice to the Seller, specify a date no earlier than ten (10) Business Days (or five (5) Business Days in any case where the Designation Deadline is the Closing Date) following delivery of such notice on which any Specified Contract or Assumed Domestic Real Property Lease specified in such notice will be assumed by the respective Selling Entity and assigned to the Buyer or the Buyer Designee specified in such notice, or (ii) designate any Domestic Non-Real Property Contract or any Domestic Real Property Lease as a Contract that is not to be an Assumed Contract Domestic Agreement or an Assumed Domestic Real Property Lease, in each case by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be assumed by Sellers and assigned to Buyer or (ii) designate such Non-Real Property Contract or Lease for exclusion and rejection for purposes of this Agreement and, if executory, to be rejected by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be excluded and rejected by the applicable Seller and the date that such rejection shall be effective, which rejection shall be effective upon the delivery of such notice designation or removal to Sellers (each, a “Rejection Effective Date”)the Seller; provided, however, that, notwithstanding anything herein the Buyer’s designation rights pursuant to this Section 2.5(b), the Buyer shall designate a minimum of 300 Domestic Real Property Leases as Assumed Domestic Real Property Leases and shall assume, or cause a Buyer Designee to assume, all such Assumed Domestic Real Property Leases on or prior to the contrary, Buyer may not designate any Lease for exclusion and rejection if such exclusion and rejection would result in fewer than 140 Leases being assumed and assigned to BuyerDesignation Deadline. Upon delivery of a notification by the Buyer with respect to any Non-Specified Contract or Assumed Domestic Real Property Contract or Lease under Section 2.6(b)(i)2.5(b)(i)(y) herein, the applicable Seller Selling Entity shall move in the Bankruptcy Court within 5 days of receipt of such notice to assign such Non-Specified Contract or Assumed Domestic Real Property Contract or Lease to the Buyer or the Buyer Designee as set forth in the applicable notice and shall assume and assign to, and the Buyer shall or shall cause such Buyer Designee to accept the assignment of, such Specified Contract or Assumed Domestic Real Property Lease. Upon the Buyer’s designation of and assume such a Domestic Non-Real Property Contract or Lease. Upon delivery of a notification by Buyer with respect any Domestic Real Property Lease under Section 2.5(b)(ii) herein, the applicable Selling Entity may move to any reject such Domestic Non-Real Property Contract or Domestic Real Property Lease under Section 2.6(b)(ii), the applicable Seller shall move in the Bankruptcy Court within 5 days of at any time following receipt of such notice to reject such the Buyer’s respective notice. In the event that the Buyer has designated any Domestic Non-Real Property Contract as an Assumed Domestic Agreement or any Domestic Real Property Lease as of an Assumed Domestic Real Property Lease prior to the applicable Rejection Effective Designation Deadline, but has not delivered a notification with respect thereto in accordance with Section 2.5(b)(i)(y) prior to the date that is at least ten (10) Business Days (or five (5) Business Days in any case where the Designation Deadline is the Closing Date) prior to the applicable Designation Deadline, then the applicable Selling Entity shall assume and assign, and Buyer shall, or shall cause a Buyer Designee to, accept the assignment of, such Assumed Domestic Agreement or Assumed Domestic Real Property Lease on the applicable Designation Deadline. In addition, without limiting the Buyer’s obligations pursuant to the proviso set forth in the first sentence of this Section 2.5(b), in the event that the Buyer has not provided a written designation pursuant to assume and assign this Section 2.5(b) at least ten (10) Business Days prior to the applicable Designation Deadline (or five (5) Business Days in any case where the Designation Deadline is the Closing Date) to designate any Domestic Non-Real Property Contract as an Assumed Domestic Agreement or any Domestic Real Property Lease as an Assumed Domestic Real Property Lease, then the Selling Entities may move to reject any such Domestic Non-Real Property Contract or Domestic Real Property Lease pursuant to this Section 2.6(b) by as of the applicable Designation Deadline, then and none of the Domestic Selling Entities shall have any obligation to assume or to assign any such Domestic Non-Real Property Contract or Lease shall be deemed to be excluded and rejected and Sellers may move in the Bankruptcy Court to reject such Non-Domestic Real Property Contract or Lease as of the Designation Deadline (which Designation Deadline shall constitute the Rejection Effective Date with respect thereto), and no Seller shall have any obligation to assign any such Non-Real Property Contract or Lease to the Buyer or any Buyer Designee hereunder. Any Non-Real Property Contract or Lease that is designated (or deemed to be designated) for exclusion and rejection pursuant to this Section 2.6(b) shall constitute an “Excluded Contract” as of the Closing Date or, if thereafter, as of the Rejection Effective Date. To the extent that a Non-Real Property Contract or Lease has not at Closing been designated as an Excluded Contract or an Assumed Contract, then, until the Rejection Effective Date, Buyer shall be obligated to perform or cause to be performed all of Sellers’ obligations under such Non-Real Property Contract or Lease, and Buyer shall be entitled to all benefits of Sellers thereunder; provided that no Cure Amount shall be due with respect to such Non-Real Property Contract or Lease until the permanent assumption thereof at Assumption Approval in accordance with Section 2.6(g). Notwithstanding anything to the contrary contained herein, prior to the Designation Deadline, Buyers shall have designated for assumption by Sellers and assignment to Buyers such number of Leases that when added to any Leases included in the Assumed Contracts as of the Closing equals at least 140 Leases. In determining the total number of Leases assumed and assigned to Buyer, the following shall be included (in addition to Leases actually assumed and assigned to Buyer): (x) store locations that were previously closed by Sellers but reopened by Buyer (provided that Buyer pays the Cure Amounts due with respect to the Lease for such store); and (y) any Lease for which the landlord thereunder objects to the assignment and assumption of such Lease for any reason (other than payment of the Cure Amount) and such objection is not resolved in a manner acceptable to Buyer. (c) After the Closing and prior to the applicable Designation Deadline, Sellers the Selling Entities shall not terminate, amend, supplement, modify, waive any rights under, or create any Lien Encumbrance with respect to any Non-Real Property Specified Contract or any Domestic Real Property Lease, or increase, or take any affirmative action not required by the terms thereof, any payments required to be paid thereunder by any of the Selling Entities or any Buyer Designee contingent upon any such Specified Contract or Domestic Real Property Lease becoming an Assumed Domestic Agreement or Assumed Domestic Real Property Lease, without the prior written consent of Buyer (not to be unreasonably withheld or delayed)the Buyer, unless the Buyer has provided notice to Sellers the Seller in writing designating such Specified Contract or Domestic Real Property Lease for rejection pursuant to Section 2.5(b). (d) In the case of any removal or designation notice by the Buyer pursuant to Section 2.5(b), with respect to any Domestic Non-Real Property Contract or Lease for rejection pursuant Domestic Real Property Lease, the Seller shall give notice to Section 2.6(b). (d) Within the other parties to any Contract to which such notice relates of the removal or designation of such Contract as an Assumed Domestic Agreement or an Assumed Domestic Real Property Lease, as applicable, within three (3) Business Days of Buyer’s delivery the Buyer notifying the Seller of any notice of such designation or removal or designation of any Non-Real Property Contract or Lease as an Assumed Contract by Buyer pursuant to Section 2.6(b), or such lesser time as is approved by the Bankruptcy Court, Sellers shall give notice of the removal or designation of such Non-Real Property Contract or Lease as an Assumed Contract to the other parties thereto. (e) As part of the Sale Motion Motions (or or, as necessary in one or more separate motions), Sellers the Domestic Selling Entities shall request that, that by virtue of any Seller a Domestic Selling Entity providing ten (10) Business Days’ prior Days notice of its intent to assume and assign any Contract, the Bankruptcy Court deem any non-debtor party to such Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any required Consent to the assumption of the Contract by the relevant Seller Domestic Selling Entity and assignment to Buyerthe Buyer and/or one or more Buyer Designees if, and to the extent that, pursuant to the Sale Order or other Bankruptcy Court Order, the applicable Domestic Selling Entity is authorized to assume and assign the Contract to the Buyer and/or any such Buyer Designee and the Buyer and/or any such Buyer Designee is authorized to accept such Assumed Domestic Agreement or Assumed Domestic Real Property Lease pursuant to Section 365 of the Bankruptcy Code. (f) In connection with the assumption and assignment to the Buyer or a Buyer Designee of any Assumed Contract that is executory Domestic Agreement or Assumed Domestic Real Property Lease pursuant to this Section 2.62.5, the cure amounts, as determined by the Bankruptcy Court, if any (such amounts, the “Cure AmountsPayments”), necessary to cure all defaults, if any, and to pay all actual or pecuniary losses that have resulted from such defaults under the Assumed ContractsDomestic Agreements and the Assumed Domestic Real Property Leases, including any amounts payable to any landlord under any Assumed Domestic Real Property Lease that is an Assumed Contract that relates to the period prior to the Assumption ApprovalApproval (including adjustments as between the Buyer and the Seller for prepaid rent, prepaid taxes or other prepaid expenses on a per diem basis), shall be paid by Buyerthe Seller, on or before the Assumption Approval, and not by Sellers the Buyer and Sellers the Buyer shall have no liability therefortherefor (except for any adjustments for prepaid rent, and neither the Cure Amounts paid by nor the expense of any prepaid taxes or other obligation set forth in this Section 2.6(f) shall reduce, directly or indirectly, any consideration received by Sellers hereunder; provided that any applicable Cure Amounts with regard to Assumed Contracts listed in the Closing Assumed Contract List prepaid expenses on a per diem basis which shall be paid payable by Buyer at the Closingto Seller upon Assumption Approval). (g) Sellers The Seller shall use their respective its commercially reasonable efforts to obtain an order Order of the Bankruptcy Court to assign the Assumed Contracts Domestic Agreements and the Assumed Domestic Real Property Leases to the Buyer and/or any Buyer Designees designated by the Seller (the “Assumption Approval”) on the terms set forth in this Section 2.62.5. In the event Sellers the Selling Entities are unable to assign any such Assumed Contract Domestic Agreement or Assumed Domestic Real Property Lease to the Buyer and/or any such Buyer Designee pursuant to an order Order of the Bankruptcy Court, then the Parties shall use their commercially reasonable efforts until prior to the applicable Designation Deadline to obtain, and to cooperate in obtaining, all Consents and Governmental Authorizations from Governmental Entities Authorities and third parties necessary to assume and assign such Assumed Contracts Domestic Agreement or Assumed Domestic Real Property Lease to Buyerthe Buyer and/or such Buyer Designee (the “Necessary Domestic Consents”), including, in the case of Buyerthe Selling Entities, paying making any applicable Cure AmountsPayments and any other payments necessary to obtain such Necessary Domestic Consents; provided, however, that, other than the payment of Cure Payments as set forth in Section 2.5(f), the Selling Entities shall not be required to pay any amount or incur any Liability in order to obtain any Necessary Consents in excess of $250,000 in the aggregate (the “Consent Cap”), though, in any event, the Selling Entities may, at their option and in their sole discretion, elect to pay such amounts or incur such Liabilities in excess of the Consent Cap, and, even upon reaching the Consent Cap, the Selling Entities shall continue to use commercially reasonable efforts to obtain any remaining Necessary Consents. (h) To the extent that any Consent that is or Governmental Authorization required to assign to the Buyer and/or any Buyer Designee any Assumed Contract Domestic Agreement or Assumed Domestic Real Property Lease is not obtained by the applicable Designation Deadline, each Seller shallSelling Entity will, with respect to each such Assumed ContractDomestic Agreement or Assumed Domestic Real Property Lease, from and after the Closing and until the earliest to occur of (x) the date on which such applicable Consent is obtained (which Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Buyer)obtained, and (y) the date on which such Contract is rejected following the written request of the Buyer, use commercially reasonable efforts during the term of such Assumed Contract Domestic Agreement or Assumed Domestic Real Property Lease to (i) provide to the Buyer and/or any Buyer Designee, as applicable, the benefits under such Assumed ContractDomestic Agreement or Assumed Domestic Real Property Lease, (ii) cooperate in any reasonable and lawful arrangement (including holding such Contract in trust for the Buyer and/or any Buyer Designee, as applicable, pending receipt of the required ConsentConsent or Governmental Authorization) designed to provide such benefits to the Buyer and/or any Buyer Designee, as applicable, and (iii) use its commercially reasonable efforts to enforce for the account of the Buyer and/or any Buyer Designee, as applicable, any rights of such Seller Selling Entity under such Assumed Contract Domestic Agreement or Assumed Domestic Real Property Lease (including the right to elect to terminate such Assumed Contract Domestic Agreement or Assumed Domestic Real Property Lease in accordance with the terms thereof upon the written direction of the Buyer). The Buyer shall reasonably will, and, as applicable, will cause the Buyer Designees to, cooperate with Sellers the Selling Entities in order to enable Sellers the Selling Entities to provide to the Buyer and/or any Buyer Designee that purchase any Purchased Assets hereunder the benefits contemplated by this Section 2.6(h2.5(h), and Buyer shall promptly pay any and all costs and expenses incurred by the Selling Entities or their Representatives in connection with the performance by the Selling Entities of their obligations under this Section 2.5(h). (i) The Buyer shall pay, and shall be solely responsible for, any and all Liabilities arising under any Domestic Non-Real Property Contract or Domestic Real Property Lease from and after the Closing until such Domestic Non-Real Property Contract or Domestic Real Property Lease has, in accordance with this Section 2.5, been (i) assumed and assigned to the Buyer or a Buyer Designee or (ii) rejected by the applicable Selling Entities. In addition, the Buyer shall perform, or shall cause to be performed, any and all obligations of the Selling Entities arising under any Domestic Non-Real Property Contract or Domestic Real Property Lease from and after the Closing until such Domestic Non-Real Property Contract or Domestic Real Property Lease has, in accordance with this Section 2.5, been (i) assumed and assigned to the Buyer or a Buyer Designee or (ii) rejected by the applicable Selling Entities. At Closing, the Seller and the Buyer shall enter into the Transition Services Agreement pursuant to which the Seller agrees to grant to the Buyer as a potential purchaser of the Domestic Real Property Leases the right to operate such leases on the terms therein. (j) Notwithstanding the foregoing, a Contract shall not be an Assumed Contract Domestic Agreement or Assumed Domestic Real Property Lease hereunder and shall not be assigned to, or assumed by, the Buyer (or a Buyer Designee) to the extent that such Contract (i) is rejected by a Seller Selling Entity or terminated by a Seller in accordance with the terms hereof Selling Entity or by the other party thereto, or terminates or expires by its terms, on or prior to the Designation Deadline and is not continued or otherwise extended upon assumption, or (ii) requires a Consent of any or Governmental Entity or other third party Authorization (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to the Buyer (or a Buyer Designee) of Sellersthe Selling Entities’ rights under such Contract, and no such Consent or Governmental Authorization has been obtained prior to the applicable Designation Deadline. In addition, a Permit shall not be assigned to, or assumed by, the Buyer (or a Buyer Designee) to the extent that such Permit requires a Consent of any or Governmental Entity or other third party Authorization (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to the Buyer (or a Buyer Designee) of Sellersthe Selling Entities’ rights under such Permit, and no such Consent or Governmental Authorization has been obtained prior to the Closing. (k) With respect to the Canadian Real Property Leases, and Canadian Non-Real Property Contracts (i) that are, pursuant to the terms of such Canadian Real Property Lease or Canadian Non-Real Property Contract, assignable by the relevant Canadian Selling Entity to the Buyer or a Buyer Designee without first obtaining the Consent of any third party, or (ii) for which the requisite Consents, as detailed in Section 2.5(l) and Section 2.5(m), have been obtained (such Contracts as described (i) and (ii) being, in the case of Canadian Real Property Leases, “Assumed Canadian Real Property Leases” and, in the case of Canadian Non-Real Property Contracts, “Assumed Canadian Agreements”), the relevant Canadian Selling Entity shall assign to the Buyer and/or one or more Buyer Designees such Assumed Canadian Real Property Leases and Assumed Canadian Agreements upon Closing, and the Buyer and/or one or more Buyer Designees shall assume such Assumed Canadian Real Property Leases and Assumed Canadian Agreements. Notwithstanding the foregoing, the Canadian Selling Entity may elect to refuse to assign one or more Canadian Real Property Leases to Buyer or a Buyer Designee if such assignment would result in an increase in the

Assumption and Assignment of Contracts. (a) Seller shall provide notice of the motion seeking entry of the Sale Order to all parties to any executory Contracts or unexpired Leases to which a Debtor Seller is a party, and take all other actions reasonably necessary to cause such Contracts to be assumed by the applicable Debtor Sellers and assigned to the Buyer pursuant to section 365 of the Bankruptcy Code at Closing. The Sale Order shall provide for that as of and conditioned upon the assumption by Sellers, and the assignment to the extent legally capable occurrence of being assigned by Sellers to Buyer, of the Assumed Contracts on the terms and conditions set forth in the remainder of this Section 2.6, and shall provide for the Designation Deadline as defined herein. At Buyer’s request, and at Buyer’s cost and expense, Sellers shall reasonably cooperate from the date hereof forward with Buyer as reasonably requested by Buyer (i) to allow Buyer to enter into an amendment of any Lease upon assumption of such Lease by Buyer (and Sellers shall reasonably cooperate with Buyer to the extent reasonably requested with Buyer in negotiations with the landlords thereof), or (ii) to otherwise amend any Lease to the extent such amendments would not adversely affect any Seller; provided that Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by any Seller of such Lease, unless such Lease will be assigned to Buyer at the time of such assumption. (b) Buyer shall, prior to the hearing on the Sale Motion, identify the Non-Real Property Contracts and Leases that Buyer has decided will be Assumed Contracts to be assumed and assigned to Buyer on the Closing Date by providing a list thereof to Sellers (as updated in accordance with this Agreement, the “Closing Assumed Contract List”). Up to 3 Business Days prior to the Closing Date, Buyer may, in its sole discretion, add or remove any Non-Real Property Contract or Lease as an Assumed Contract to be assumed and assigned to Buyer on the Closing Date by amending the Closing Assumed Contract List, and, in connection with the Closing, the applicable Seller shall move in the Bankruptcy Court to assign any such Non-Real Property Contract or Lease on the Closing Assumed Contract List to Buyer, and at the Closing Debtor Sellers shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. In advance of the Closing Date, Buyer may, in its sole discretion, designate a Non-Real Property Contract or Lease for exclusion and rejection by delivering written notice to Sellers and, in connection with the Closing, the applicable Seller shall move to reject any such Non-Real Property Contract or Lease as of the Closing Date (which date shall constitute the Rejection Effective Date with respect thereto). From and after the Closing Date until the Designation Deadline, with respect to any Non-Real Property Contract or Lease that was neither included on the Closing Assumed Contract List nor excluded and rejected as of the Closing Date, Buyer may, in its sole discretion, (i) designate such Non-Real Property Contract or Lease as an Assumed Contract by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be assumed by Sellers and assigned to Buyer or (ii) designate such Non-Real Property Contract or Lease for exclusion and rejection for purposes of this Agreement and, if executory, to be rejected by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be excluded and rejected by the applicable Seller and the date that such rejection shall be effective, which rejection shall be effective upon the delivery of such notice to Sellers (each, a “Rejection Effective Date”); provided, however, that, notwithstanding anything herein to the contrary, Buyer may not designate any Lease for exclusion and rejection if such exclusion and rejection would result in fewer than 140 Leases being assumed and assigned to Buyer. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(i), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to assign such Non-Real Property Contract or Lease to Buyer and shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(ii), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to reject such Non-Real Property Contract or Lease as of the applicable Rejection Effective Date. In the event that Buyer has not provided a written designation to assume and assign or reject any Non-Real Property Contract or Lease pursuant to this Section 2.6(b) by the Designation Deadline, then such Non-Real Property Contract or Lease shall be deemed to be excluded and rejected and Sellers may move in the Bankruptcy Court to reject such Non-Real Property Contract or Lease as of the Designation Deadline (which Designation Deadline shall constitute the Rejection Effective Date with respect thereto), and no Seller shall have any obligation to assign any such Non-Real Property Contract or Lease to Buyer hereunder. Any Non-Real Property Contract or Lease that is designated (or deemed to be designated) for exclusion and rejection pursuant to this Section 2.6(b) shall constitute an “Excluded Contract” as of the Closing Date or, if thereafter, as of the Rejection Effective Date. To the extent that a Non-Real Property Contract or Lease has not at Closing been designated as an Excluded Contract or an Assumed Contract, then, until the Rejection Effective Date, Buyer shall be obligated to perform or cause to be performed all assigned to the Buyer the required contracts, each of Sellers’ obligations under such Non-Real Property Contract or Lease, and Buyer which shall be entitled to all benefits of Sellers thereunder; provided that no Cure Amount shall be due with respect to such Non-Real Property Contract identified by the name or Lease until appropriate description and date (if available), the permanent assumption thereof at Assumption Approval in accordance with Section 2.6(g). Notwithstanding anything counterparty to the contrary contained hereincontract and the address of such counterparty for notice purposes, prior to the Designation Deadline, Buyers shall have designated for assumption by Sellers and assignment to Buyers such number of Leases that when added to any Leases all included in the Assumed Contracts as of the Closing equals at least 140 Leases. In determining the total number of Leases assumed and assigned to Buyer, the following shall be included (in addition to Leases actually assumed and assigned to Buyer): (x) store locations that were previously closed by Sellers but reopened by Buyer (provided that Buyer pays the Cure Amounts due a notice filed with respect to the Lease for such store); and (y) any Lease for which the landlord thereunder objects to the assignment and assumption of such Lease for any reason (other than payment of the Cure Amount) and such objection is not resolved in a manner acceptable to Buyer. (c) After the Closing and prior to the Designation Deadline, Sellers shall not terminate, amend, supplement, modify, waive any rights under, or create any Lien with respect to any Non-Real Property Contract or any Lease, or take any affirmative action not required by the terms thereof, without the prior written consent of Buyer (not to be unreasonably withheld or delayed), unless Buyer has provided notice to Sellers in writing designating such Non-Real Property Contract or Lease for rejection pursuant to Section 2.6(b). (d) Within three (3) Business Days of Buyer’s delivery of any notice of removal or designation of any Non-Real Property Contract or Lease as an Assumed Contract by Buyer pursuant to Section 2.6(b), or such lesser time as is approved by the Bankruptcy Court, Sellers . Such notice to the contract counterparties shall give notice also set forth Seller’s good faith estimate of the removal or designation of such Non-Real Property Contract or Lease as an Assumed Contract amounts necessary to the other parties thereto. (e) As part cure any defaults under each of the Sale Motion (contracts, as determined by Seller based on its books and records or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing ten (10) Business Days’ prior notice of its intent to assume and assign any Contract, the Bankruptcy Court deem any non-debtor party to such Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any required Consent to the assumption of the Contract by the relevant Seller and assignment to Buyer. (f) In connection with the assumption and assignment to Buyer of any Assumed Contract that is executory pursuant to this Section 2.6, the cure amounts, as otherwise determined by the Bankruptcy Court, if any (such amountsand summarizing the procedures for objecting thereto. At the Closing, or as soon as reasonably practicable thereafter, Seller shall, pursuant to the “Cure Amounts”), necessary to cure all defaults, if anySale Order, and to pay all actual or pecuniary losses that have resulted from such defaults under the Assumed ContractsBill of Sale and Assignment and Assumption Agreement, including any amounts payable to any landlord under any Lease that is an Assumed Contract that relates to the period prior to the Assumption Approval, shall be paid by Buyer, on or before the Assumption Approval, assume and not by Sellers and Sellers shall have no liability therefor, and neither the Cure Amounts paid by nor the expense of any other obligation set forth in this Section 2.6(f) shall reduce, directly or indirectly, any consideration received by Sellers hereunder; provided that any applicable Cure Amounts with regard to Assumed Contracts listed in the Closing Assumed Contract List shall be paid by Buyer at the Closing. (g) Sellers shall use their respective commercially reasonable efforts to obtain an order of the Bankruptcy Court to assign the Assumed Contracts to Buyer (the “Assumption Approval”consideration for which is included in the Purchase Price) on the terms set forth in this Section 2.6. In the event Sellers are unable to assign any such Assumed Contract and Buyer shall accept and assume all contracts that may be assigned by Seller to Buyer pursuant to an order sections 363 and 365 of the Bankruptcy CourtCode. Subject to entry of the Sale Order, then the Parties shall use their commercially reasonable efforts until the Designation Deadline at or prior to obtain, and to cooperate in obtaining, all Consents from Governmental Entities and third parties necessary to assume and assign such Assumed Contracts to Buyer, including, in the case of Buyer, paying any applicable Cure Amounts. (h) To the extent that any Consent that is required to assign to Buyer any Assumed Contract is not obtained by the Designation Deadline, each Seller shall, with respect to each such Assumed Contract, from and after the Closing and until the earliest to occur of (x) the date on which such applicable Consent is obtained (which Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Buyer), and (y) the date on which such Contract is rejected following the written request of Buyer, use commercially reasonable efforts during the term of such Assumed Contract to (i) provide the applicable Sellers shall assign such contracts to the applicable Buyer the benefits under such Assumed Contract, (ii) cooperate in any reasonable and lawful arrangement (including holding such Contract in trust for Buyer pending receipt of the required Consent) designed to provide such benefits to Buyer and (iii) use its commercially reasonable efforts to enforce for the account of Buyer any rights of such Seller under such Assumed Contract (including the right to elect to terminate such Assumed Contract in accordance with the terms thereof upon provisions of section 365 of the written direction Bankruptcy Code and this Agreement, and (ii) following satisfaction of Buyerclause (i). , Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Buyer the benefits contemplated by this Section 2.6(h). (i) Notwithstanding the foregoing, a Contract shall not be an Assumed Contract hereunder due course and shall not be assigned to, or assumed by, Buyer to the extent that such Contract (i) is rejected by a Seller or terminated by a Seller in accordance with its respective terms pay and fully satisfy, discharge and perform all of the terms hereof or by the other party thereto, or terminates or expires by its terms, on or prior obligations under each contract pursuant to the Designation Deadline and is not continued or otherwise extended upon assumption, or (ii) requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that section 365 of the Bankruptcy Court) in order to permit the sale or transfer to Buyer of Sellers’ rights under such Contract, and no such Consent has been obtained prior to the Designation Deadline. In addition, a Permit shall not be assigned to, or assumed by, Buyer to the extent that such Permit requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to Buyer of Sellers’ rights under such Permit, and no such Consent has been obtained prior to the ClosingCode.

Assumption and Assignment of Contracts. (a) The Sale Order shall provide for the assumption by Sellersthe Selling Entities, and the assignment Sale Order shall, to the extent legally capable of being assigned permitted by Sellers Law, provide for the assignment by the Selling Entities to Buyerthe Buyer or one or more Buyer Designees, of the Assumed Contracts Agreements and the Assumed Real Property Leases on the terms and conditions set forth in the remainder of this Section 2.62.5, and shall provide for the Designation Deadline as defined herein. At the Buyer’s request, and at the Buyer’s cost and expense, Sellers the Selling Entities shall reasonably cooperate from with the date hereof forward with Buyer as reasonably requested by the Buyer (i) to allow the Buyer to enter into an amendment of with any Non-Real Property Contract or Real Property Lease upon assumption of such Non-Real Property Contract or Real Property Lease by the Buyer (or a Buyer Designee, and Sellers shall reasonably cooperate with the Buyer to the extent reasonably requested with the Buyer in negotiations with the landlords counterparties thereof), or (ii) to otherwise amend any Non-Real Property Contract or Real Property Lease to the extent such amendments would not adversely affect any Sellerof the Selling Entities; provided that Sellers (x) the Selling Entities shall not be required to enter into any such amendment if unless the effectiveness of such amendment would result in an assumption by any Seller of such Leaseshall not occur until, unless such Lease will and shall be assigned to Buyer at the time of such assumption. (b) Buyer shall, prior to the hearing on the Sale Motion, identify the Non-Real Property Contracts and Leases that Buyer has decided will be Assumed Contracts to be assumed and assigned to Buyer on the Closing Date by providing a list thereof to Sellers (as updated in accordance with this Agreementconditioned upon, the “Closing Assumed Contract List”). Up to 3 Business Days prior to the Closing Date, Buyer may, in its sole discretion, add or remove any Non-Real Property Contract or Lease as an Assumed Contract to be assumed and assigned to Buyer on the Closing Date by amending the Closing Assumed Contract List, and, in connection with the Closing, the applicable Seller shall move in the Bankruptcy Court to assign any assignment of such Non-Real Property Contract or Real Property Lease to the Buyer or a Buyer Designee and such amendment does not impose any incremental Liabilities on the Closing Assumed Contract List Selling Entities with respect to Buyer, and at the Closing shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. In advance of the Closing Date, Buyer may, in its sole discretion, designate a Non-Real Property Contract Lease, other than Assumed Liabilities or Lease for exclusion and rejection by delivering written notice to Sellers and, in connection with the Closing, the applicable Seller shall move to reject any such Non-Real Property Contract Liabilities of Buyer or Lease as of the Closing Date (which date shall constitute the Rejection Effective Date with respect thereto). From its Affiliates that may arise only from and after the Closing Date until date of such assignment; (y) Buyer shall at all times conduct such negotiations on behalf of itself and shall not purport to be acting on behalf of, or as an agent of, any Selling Entity; and (z) Buyer shall keep the Seller reasonably apprised of the status of negotiations with such counterparties and provide any relevant information or documentation reasonably requested by Seller. (b) On or prior to the applicable Designation Deadline, with respect to any Non-Real Property Contract or Lease that was neither included on the Closing Assumed Contract List nor excluded and rejected as of the Closing Date, Buyer may, in its sole discretion, (ii)(x) designate any Non-Real Property Contract as an Assumed Agreement or any Real Property Lease as an Assumed Real Property Lease, and (y) from and after the Closing, by providing written notice to the Seller, specify a date no earlier than fourteen (14) days (or five (5) Business Days in any case where the Designation Deadline is the Closing Date) following delivery of such notice on which any Assumed Agreement or Assumed Real Property Lease specified in such notice will be assumed by the respective Selling Entity and assigned to the Buyer or the Buyer Designee specified in such notice, or (ii) designate any Non-Real Property Contract or any Real Property Lease (other than the Assumed Employment Agreements, which shall be assumed by Buyer at the Closing) as a Contract that is not to be an Assumed Contract Agreement or an Assumed Real Property Lease, in each case by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be assumed by Sellers and assigned to Buyer or (ii) designate such Non-Real Property Contract or Lease for exclusion and rejection for purposes of this Agreement and, if executory, to be rejected by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be excluded and rejected by the applicable Seller and the date that such rejection shall be effective, which rejection shall be effective upon the delivery of such notice designation or removal to Sellers (each, a “Rejection Effective Date”)the Seller; provided, however, that, notwithstanding anything herein the Buyer’s designation rights pursuant to this Section 2.5(b), the Buyer shall designate Real Property Leases for not less than 900 stores of the Business as Assumed Real Property Leases and shall assume, or cause a Buyer Designee to assume, all such Assumed Real Property Leases on or prior to the contrary, Buyer may not designate any Lease for exclusion and rejection if such exclusion and rejection would result in fewer than 140 Leases being assumed and assigned to BuyerDesignation Deadline. Upon delivery of a notification by the Buyer with respect to any Non-Real Property Contract or Assumed Real Property Lease under Section 2.6(b)(i)2.5(b)(i)(y) herein, the applicable Seller Selling Entity shall move in the Bankruptcy Court within 5 days of receipt of such notice to assign such Non-Real Property Contract or Assumed Real Property Lease to the Buyer or the Buyer Designee as set forth in the applicable notice and shall assume and assign to, and the Buyer shall or shall cause such Buyer Designee to accept the assignment of and assume of, such Non-Real Property Contract or Assumed Real Property Lease. Upon delivery the Buyer’s designation of a notification by Buyer with respect to any Non-Real Property Contract or any Real Property Lease under Section 2.6(b)(ii)2.5(b)(ii) herein, the applicable Seller shall Selling Entity may move in the Bankruptcy Court within 5 days of receipt of such notice to reject such Non-Real Property Contract or Real Property Lease as at any time following receipt of the applicable Rejection Effective DateBuyer’s respective notice. In the event that the Buyer has designated any Non-Real Property Contract as an Assumed Agreement or any Real Property Lease as an Assumed Real Property Lease prior to the applicable Designation Deadline, but has not delivered a notification with respect thereto in accordance with Section 2.5(b)(i)(y) prior to the date that is at least fourteen (14) days (or five (5) Business Days in any case where the Designation Deadline is the Closing Date) prior to the applicable Designation Deadline, then the applicable Selling Entity shall assume and assign, and Buyer shall, or shall cause a Buyer Designee to, accept the assignment of, such Assumed Agreement or Assumed Real Property Lease on the applicable Designation Deadline. In addition, without limiting the Buyer’s obligations pursuant to the proviso set forth in the first sentence of this Section 2.5(b), in the event that the Buyer has not provided a written designation pursuant to assume and assign this Section 2.5(b) at least fourteen (14) days prior to the applicable Designation Deadline (or reject five (5) Business Days in any case where the Designation Deadline is the Closing Date) to designate any Non-Real Property Contract as an Assumed Agreement or any Real Property Lease pursuant to this Section 2.6(b) by the Designation Deadlineas an Assumed Real Property Lease, then such Non-Real Property Contract or Lease shall be deemed to be excluded and rejected and Sellers the Selling Entities may move in the Bankruptcy Court to reject such Non-Real Property Contract or Real Property Lease as of the applicable Designation Deadline (which Designation Deadline shall constitute the Rejection Effective Date with respect thereto)Deadline, and no Seller none of the Selling Entities shall have any obligation to assume or to assign any such Non-Real Property Contract or Real Property Lease to the Buyer or any Buyer Designee hereunder. Any Non-Real Property Contract or Lease that is designated (or deemed to be designated, and if Buyer has not provided written designation(s) for exclusion and rejection pursuant to this Section 2.6(b2.5(b) shall constitute an “Excluded Contract” as at least fourteen (14) days prior to the Designation Deadline with respect to at least 900 stores of the Closing Date or, if thereafter, Business as of the Rejection Effective Date. To the extent that a Non-Assumed Real Property Contract or Lease has not at Closing been designated as an Excluded Contract or an Assumed ContractLeases, then, until then the Rejection Effective Date, Buyer Selling Entities shall be obligated entitled to perform or cause select in their discretion, by written notice to be performed all of Sellers’ obligations under the Buyer, such Non-additional Assumed Real Property Contract or LeaseLeases to satisfy such 900 store requirement, and Buyer shall be entitled to all benefits required to, or cause a Buyer Designee to, accept assignment of Sellers thereunder; provided that no Cure Amount shall be due with respect to such Non-Assumed Real Property Contract or Lease until the permanent assumption thereof at Assumption Approval in accordance with Section 2.6(g). Notwithstanding anything to the contrary contained herein, prior to Leases on the Designation Deadline, Buyers shall have designated Deadline for assumption by Sellers and assignment to Buyers such number of Leases that when added to any Leases included in the Assumed Contracts as of the Closing equals at least 140 Real Property Leases. In determining the total number of Leases assumed and assigned to Buyer, the following shall be included (in addition to Leases actually assumed and assigned to Buyer): (x) store locations that were previously closed by Sellers but reopened by Buyer (provided that Buyer pays the Cure Amounts due with respect to the Lease for such store); and (y) any Lease for which the landlord thereunder objects to the assignment and assumption of such Lease for any reason (other than payment of the Cure Amount) and such objection is not resolved in a manner acceptable to Buyer. (c) After the Closing and prior to the applicable Designation Deadline, Sellers the Selling Entities shall not reject, terminate, amend, supplement, modify, waive any rights under, or create any Lien Encumbrance with respect to any Non-Real Property Contract or any Real Property Lease, or take increase any affirmative action not payments required by to be paid thereunder (other than to the extent required pursuant to the terms thereofthereof as in effect as of the date hereof) by any of the Selling Entities or any Buyer Designee contingent upon any such Non-Real Property Contract or Real Property Lease becoming an Assumed Agreement or Assumed Real Property Lease, without the prior written consent of Buyer (not to be unreasonably withheld or delayed)the Buyer, unless the Buyer has provided notice to Sellers the Seller in writing designating such Non-Real Property Contract or Real Property Lease for rejection pursuant to Section 2.6(b2.5(b). (d) Within In the case of any notice issued from time to time by the Buyer pursuant to Section 2.5(b) designating or removing any Non-Real Property Contract as an Assumed Agreement or not an Assumed Agreement, respectively, or Real Property Lease as an Assumed Real Property Lease or not an Assumed Real Property Lease, respectively, the Seller shall give notice to any affected counterparties to any such Non-Real Property Contract or Real Property Lease to which such notice relates of the removal or designation of such Contract as an Assumed Agreement or an Assumed Real Property Lease, as applicable, within three (3) Business Days of Buyer’s delivery the Buyer notifying the Seller of any notice of such designation or removal or designation of any Non-Real Property Contract or Lease as an Assumed Contract by Buyer pursuant to Section 2.6(b), 2.5(b) (or such lesser time as is approved by the Bankruptcy Court, Sellers ). Buyer shall give notice of the removal or designation of such use commercially reasonable efforts to identify any Non-Real Property Contract or Real Property Lease that are to be designated for removal by the Buyer pursuant to Section 2.5(b) as an Assumed Contract promptly as practicable following the Closing, and shall remove, as promptly as possible following such designation, any assets that are Purchased Assets located within a facility that is subject to a Real Property Lease that is designated for removal by the other parties theretoBuyer pursuant to Section 2.5(b), it being understood that Selling Entities will have a limited time thereafter to vacate the premises and such Purchased Assets could be deemed abandoned in such process. (e) In the case of any removal or designation notice issued from time to time by the Buyer pursuant to Section 2.5(b) designating or removing any Real Property Lease for rejection, (i) Buyer shall be responsible for the removal and transportation (and any costs thereof) of any Inventory and any other Purchased Asset from the store locations that are subject to such Real Property Lease, which removal shall take place prior to such time as the Selling Entities are no longer entitled to occupy such stores pursuant to the Bankruptcy Code, (ii) any Inventory or other Purchased Asset not so removed by Buyer prior to such time shall be deemed abandoned without any change to the Purchase Price, and (iii) Buyer shall be responsible for any Liabilities of the Seller Entities that arise as a result of such abandonment under such Real Property Lease that constitute administrative expenses of the Selling Entities in the Bankruptcy Case. (f) As part of the Sale Motion Motions (or or, as necessary in one or more separate motions), Sellers the Selling Entities shall request that, that by virtue of any Seller a Selling Entity providing ten fourteen (1014) Business Daysdays’ prior notice of its intent to assume and assign any Contract, the Bankruptcy Court deem any non-debtor party to such Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any required Consent to the assumption of the Contract by the relevant Seller Selling Entity and assignment to Buyerthe Buyer or one or more Buyer Designees if, and to the extent that, pursuant to the Sale Order or other Bankruptcy Court Order, the applicable Selling Entity is authorized to assume and assign the Contract to the Buyer or any such Buyer Designee and the Buyer or any such Buyer Designee is authorized to accept such Assumed Agreement or Assumed Real Property Lease pursuant to Section 365 of the Bankruptcy Code. (fg) In connection with the assumption and assignment to by Buyer or a Buyer Designee of any Assumed Contract that is executory Agreement or Assumed Real Property Lease pursuant to this Section 2.62.5, the cure amounts, as determined by the Bankruptcy Court, if any (such amounts, the “Cure Amounts”), amounts necessary to cure all defaultsdefaults thereunder, if any, and to pay all actual or pecuniary losses that have resulted from such defaults under defaults, if any, and required to be paid pursuant to section 365 of the Bankruptcy Code in connection with the assumption and assignment of the Assumed ContractsAgreements and Assumed Real Property Leases (such amounts, including any amounts payable to any landlord under any Lease that is an Assumed Contract that relates to the period prior to the Assumption Approval“Cure Payments”), negotiated by Buyer in its sole discretion, shall be paid by the Buyer, on or before the Assumption Approvalassumption and assignment of such Assumed Agreement or Assumed Real Property Lease in accordance with the terms of this Agreement. From and after the date hereof until such time as Buyer provides a removal or designation notice pursuant to Section 2.5(b) with respect to any such Contract, and the Selling Entities will not by Sellers and Sellers shall have no liability therefortake, and neither the Cure Amounts paid by nor the expense of any other obligation set forth in this Section 2.6(f) shall reduce, directly or indirectlyfail to take, any consideration received action that could increase, in any respect or amount, the Buyer’s liability for any Cure Payments required to be made pursuant to this Agreement. For the avoidance of doubt, no Cure Payment shall be payable by Sellers hereunderBuyer unless the amount thereof is agreed to by Buyer in its sole discretion; provided that any no Assumed Agreement or Assumed Real Property Lease shall be assumed and assigned to Buyer under this Agreement until the applicable Cure Amounts with regard Payment, if any, is so agreed to Assumed Contracts listed in the Closing Assumed Contract List shall be by Buyer and paid by Buyer, and no Selling Entity shall be, or be deemed to be, in breach of this Agreement solely as result of the failure of such Assumed Agreement or Assumed Real Property Lease to be transferred hereunder as a result of Buyer at the Closingnot agreeing to such Cure Payment. (gh) Sellers The Seller shall use their respective its commercially reasonable efforts to obtain an order Order of the Bankruptcy Court to assign the Assumed Contracts Agreements and the Assumed Real Property Leases to the Buyer or any Buyer Designees (the “Assumption Approval”) on the terms set forth in this Section 2.62.5. In the event Sellers the Selling Entities are unable to assign any such Assumed Contract Agreement or Assumed Real Property Lease to the Buyer or any such Buyer Designee pursuant to an order Order of the Bankruptcy Court, then the Parties shall use their commercially reasonable efforts until prior to the applicable Designation Deadline to obtain, and to cooperate in obtaining, all Consents and Governmental Authorizations from Governmental Entities Authorities and third parties necessary to assume and assign such Assumed Contracts Agreement or Assumed Real Property Lease to Buyer, including, in the case of Buyer, paying any applicable Cure AmountsBuyer or such Buyer Designee (the “Necessary Consents”). (hi) To the extent that any Consent that is or Governmental Authorization required to assign to the Buyer or any Buyer Designee any Assumed Contract Agreement or Assumed Real Property Lease is not obtained by the applicable Designation Deadline, each Seller shallSelling Entity will, with respect to each such Assumed ContractAgreement or Assumed Real Property Lease, from and after the Closing and until the earliest to occur of (x) the date on which such applicable Consent is obtained (which Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Buyer)obtained, and (y) the date on which such Contract is rejected following a removal notice by the written request of BuyerBuyer pursuant to Section 2.5(b), use commercially reasonable efforts during the term of such Assumed Contract Agreement or Assumed Real Property Lease to (i) provide to the Buyer or any Buyer Designee, as applicable, the benefits under such Assumed ContractAgreement or Assumed Real Property Lease, (ii) cooperate in any reasonable and lawful arrangement (including holding such Contract in trust for the Buyer or any Buyer Designee, as applicable, pending receipt of the required ConsentConsent or Governmental Authorization) designed to provide such benefits to the Buyer or any Buyer Designee, as applicable, and (iii) use its commercially reasonable efforts to enforce for the account of the Buyer or any Buyer Designee, as applicable, any rights of such Seller Selling Entity under such Assumed Contract Agreement or Assumed Real Property Lease (including the right to elect to terminate such Assumed Contract Agreement or Assumed Real Property Lease in accordance with the terms thereof upon the written direction of the Buyer). The Buyer shall reasonably will, and, as applicable, will cause the Buyer Designees to, cooperate with Sellers the Selling Entities in order to enable Sellers the Selling Entities to provide to the Buyer or any Buyer Designee that purchase any Purchased Assets hereunder the benefits contemplated by this Section 2.6(h2.5(i), and Buyer shall promptly pay any and all costs and expenses incurred by the Selling Entities or their Representatives in connection with the performance by the Selling Entities of their obligations under this Section 2.5(i). (ij) Notwithstanding the foregoingThe Buyer shall pay, a Contract shall not be an Assumed Contract hereunder and shall not be assigned to, solely responsible for any and all Liabilities arising under any Non-Real Property Contract or assumed by, Buyer Real Property Lease (and any Liabilities incurred in the operation of any store that is subject to any such Real Property Lease in accordance with the extent that such Contract remainder of this Section 2.5(j)) from and after the Closing until (i) is rejected by such Non-Real Property Contract or Real Property Lease has, in accordance with this Section 2.5, been assumed and assigned to the Buyer or a Seller Buyer Designee or terminated by a (ii) the Buyer has provided written notice to the Seller in accordance with Section 2.5(b) specifying the terms hereof designation or by removal of such Non-Real Property Contract or Real Property Lease and Seller has had a reasonable opportunity to reject such Non-Real Property Contract or Real Property Lease (which in no event shall be longer than ten (10) days after the other party theretodelivery of such written notice) (such Liabilities, or terminates or expires by its terms, on or prior to the “Contract Designation Deadline and is not continued or otherwise extended upon assumption, or (ii) requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to Buyer of Sellers’ rights under such Contract, and no such Consent has been obtained prior to the Designation DeadlineLiabilities”). In addition, a Permit the Buyer shall not be assigned toperform, or assumed byshall cause to be performed, Buyer to the extent that such Permit requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that all obligations of the Bankruptcy Court) in order to permit Selling Entities arising under any Non-Real Property Contract or Real Property Lease from and after the sale or transfer to Buyer of Sellers’ rights under Closing until such Permit, and no such Consent has been obtained prior to the Closing.Non-R

Assumption and Assignment of Contracts. (a) The Sale Order shall provide for Schedule 2.6(a) sets forth a list of all Contracts and Leases to which Seller is a party that Buyer desires to assume (the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Buyer, of the “Potential Assumed Contracts on the terms and conditions set forth in the remainder of this Section 2.6, and shall provide for the Designation Deadline as defined herein. At Buyer’s request, and at Buyer’s cost and expense, Sellers shall reasonably cooperate from the date hereof forward with Buyer as reasonably requested by Buyer (i) to allow Buyer to enter into an amendment of any Lease upon assumption of such Lease by Buyer (and Sellers shall reasonably cooperate with Buyer to the extent reasonably requested with Buyer in negotiations with the landlords thereofLeases”), together with estimated Cure Amounts for each such Contract or (ii) Lease. For any Contracts or Leases to otherwise amend any Lease which Seller is a party and that are not identified on Schedule 2.6(a), such Contracts or Leases shall be deemed to the extent such amendments would not adversely affect any Seller; provided that Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by any Seller of such Lease, unless such Lease will be assigned to Buyer at the time of such assumptionExcluded Asset. (b) Buyer shall, prior to From the hearing on the Sale Motion, identify the Non-Real Property Contracts and Leases that Buyer has decided will be Assumed Contracts to be assumed and assigned to Buyer on the Closing Date by providing a list thereof to Sellers date hereof until two (as updated in accordance with this Agreement, the “Closing Assumed Contract List”). Up to 3 2) Business Days prior to the Closing Date, Buyer may, in its sole discretion, add or remove any Non-Real Property Contract or Lease as an Assumed Contract to be assumed and assigned to Buyer on the Closing Date by amending the Closing Assumed Contract List, and, in connection with the Closing, the applicable Seller shall move in the Bankruptcy Court to assign any such Non-Real Property Contract or Lease on the Closing Assumed Contract List to Buyer, and at the Closing shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. In advance of the Closing DateSale Hearing, Buyer may, in its sole discretion, designate a Non-Real Property Contract or Lease for exclusion and rejection by delivering written notice to Sellers and, in connection with the Closing, the applicable Seller shall move to reject any such Non-Real Property Contract or Lease as of the Closing Date (which date shall constitute the Rejection Effective Date with respect theretoPotential Assumed Contracts and Leases as an Excluded Asset by removing them from Schedule 2.6(a). From Any Potential Assumed Contracts and after Leases not removed from Schedule 2.6(a) no later than two (2) Business Days prior to the Closing Date until the Designation Deadline, with respect to any Non-Real Property Contract or Lease that was neither included on the Closing Assumed Contract List nor excluded and rejected as of the Closing Date, Buyer may, in its sole discretion, (i) designate such Non-Real Property Contract or Lease as an Assumed Contract by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to Sale Hearing shall be assumed by Sellers and assigned to Buyer or (ii) designate such Non-Real Property Contract or Lease for exclusion and rejection for purposes of this Agreement and, if executory, to be rejected by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be excluded and rejected by the applicable Seller and the date that such rejection shall be effective, which rejection shall be effective upon the delivery of such notice to Sellers (each, a “Rejection Effective Date”); provided, however, that, notwithstanding anything herein to the contrary, Buyer may not designate any Lease for exclusion and rejection if such exclusion and rejection would result in fewer than 140 Leases being assumed and assigned to Buyer. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(i), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to assign such Non-Real Property Contract or Lease to Buyer and shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(ii), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to reject such Non-Real Property Contract or Lease as of the applicable Rejection Effective Date. In the event that Buyer has not provided a written designation to assume and assign or reject any Non-Real Property Contract or Lease pursuant to this Section 2.6(b) by the Designation Deadline, then such Non-Real Property Contract or Lease shall be deemed to be excluded and rejected and Sellers may move in the Bankruptcy Court to reject such Non-Real Property Contract or Lease as of the Designation Deadline (which Designation Deadline shall constitute the Rejection Effective Date with respect thereto), and no Seller shall have any obligation to assign any such Non-Real Property Contract or Lease to Buyer hereunder. Any Non-Real Property Contract or Lease that is designated (or deemed to be designated) for exclusion and rejection pursuant to this Section 2.6(b) shall constitute an “Excluded Contract” as of the Closing Date or, if thereafter, as of the Rejection Effective Date. To the extent that a Non-Real Property Contract or Lease has not at Closing been designated as an Excluded Contract or an Assumed Contract, then, until the Rejection Effective Date, Buyer shall be obligated to perform or cause to be performed all of Sellers’ obligations under such Non-Real Property Contract or Lease, and Buyer shall be entitled to all benefits of Sellers thereunder; provided that no Cure Amount shall be due with respect to such Non-Real Property Contract or Lease until the permanent assumption thereof at Assumption Approval in accordance with Section 2.6(g). Notwithstanding anything to the contrary contained herein, prior to the Designation Deadline, Buyers shall have designated for assumption by Sellers and assignment to Buyers such number of Leases that when added to any Leases included in the Assumed Contracts as of the Closing equals at least 140 Leases. In determining the total number of Leases assumed and assigned to Buyer, the following shall be included (in addition to Leases actually assumed effective on and assigned to Buyer): (x) store locations that were previously closed by Sellers but reopened by Buyer (provided that Buyer pays the Cure Amounts due with respect to the Lease for such store); and (y) any Lease for which the landlord thereunder objects to the assignment and assumption of such Lease for any reason (other than payment as of the Cure Amount) Closing as provided for in the Sale Order or as otherwise provided for by an Order of the Bankruptcy Court (such Contracts and such objection is not resolved in a manner acceptable to BuyerLeases, the “Assumed Contracts”). (c) After the Closing and prior to the Designation Deadline, Sellers shall not terminate, amend, supplement, modify, waive any rights under, or create any Lien with respect to any Non-Real Property Contract or any Lease, or take any affirmative action not required by the terms thereof, without the prior written consent of Buyer (not to be unreasonably withheld or delayed), unless Buyer has provided notice to Sellers in writing designating such Non-Real Property Contract or Lease for rejection pursuant to Section 2.6(b). (d) Within three (3) Business Days of Buyer’s delivery of any notice of removal or designation of any Non-Real Property Contract or Lease as an Assumed Contract by Buyer pursuant to Section 2.6(b), or such lesser time as is approved by the Bankruptcy Court, Sellers shall give notice of the removal or designation of such Non-Real Property Contract or Lease as an Assumed Contract to the other parties thereto. (e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing ten (10) Business Days’ prior notice of its intent to assume and assign any Contract, the Bankruptcy Court deem any non-debtor party to such Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any required Consent to the assumption of the Contract by the relevant Seller and assignment to Buyer. (f) In connection with the assumption by and assignment to Buyer of any Assumed Contract that is executory Contracts pursuant to this Section 2.6, the cure amounts, as determined by the Bankruptcy Court, if any (such amounts, the “Cure Amounts”)any, necessary to cure all defaults, if any, and to pay all actual or pecuniary losses losses, if any, that have resulted from such defaults under the Assumed ContractsContracts (collectively, including any amounts payable to any landlord under any Lease that is an Assumed Contract that relates such amounts, the “Cure Amounts”), in each case as of the Petition Date and to the period prior to extent required by Section 365(b)(1)(A) and (B) of the Assumption ApprovalBankruptcy Code, shall be paid by Buyer, on or before Buyer at the Assumption ApprovalClosing, and not by Sellers and Sellers shall have no liability therefor, and neither the Cure Amounts paid by nor the expense of any other obligation set forth in this Section 2.6(f) Buyer shall not reduce, directly or indirectly, any consideration received by Sellers payable to Seller hereunder; provided that any applicable Cure Amounts . Buyer shall provide sufficient adequate assurance of future performance as of the Sale Hearing necessary to satisfy the conditions contained in Sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with regard respect to Assumed Contracts listed in the Closing Assumed Contract List shall be paid by Buyer at the ClosingContracts. (gd) Sellers Seller shall use their respective commercially reasonable efforts to obtain an order Order of the Bankruptcy Court to assign the Assumed Contracts to Buyer (the “Assumption Approval”) on the terms set forth in this Section 2.6. In the event Sellers are Seller is unable to assign any such Assumed Contract to Buyer pursuant to an order Order of the Bankruptcy Court, then the Parties shall use their commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Consents from Governmental Entities and third parties necessary to assume and assign such Assumed Contracts to Buyer, including, in the case of Buyer, paying any applicable Cure Amounts. (h) To the extent that any Consent that is required to assign to Buyer any Assumed Contract is not obtained by the Designation Deadline, each Seller shall, with respect to each such Assumed Contract, from and after the Closing and until the earliest to occur of (x) the date on which such applicable Consent is obtained (which Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates Seller shall be required under no obligation to pay any consideration therefor other than filingamounts to any Governmental Entity or third party for any Consents, recordation and any amounts paid to any Governmental Entity or similar fees, which third party for any such Consents shall be borne paid by Buyer), and (y) the date on which such Contract is rejected following the written request of Buyer, use commercially reasonable efforts during the term of such Assumed Contract to (i) provide to Buyer the benefits under such Assumed Contract, (ii) cooperate in any reasonable and lawful arrangement (including holding such Contract in trust for Buyer pending receipt of the required Consent) designed to provide such benefits to Buyer and (iii) use its commercially reasonable efforts to enforce for the account of Buyer any rights of such Seller under such Assumed Contract (including the right to elect to terminate such Assumed Contract in accordance with the terms thereof upon the written direction of Buyer). Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Buyer the benefits contemplated by this Section 2.6(h). (ie) Notwithstanding the foregoing, but subject to Section 5.1, a Contract shall not be an Assumed Contract hereunder and shall not be assigned to, or assumed by, by Buyer to the extent that such Contract (i) is rejected by a Seller or terminated by a Seller in accordance with the terms hereof or by the other party thereto, or terminates or expires by its terms, on or prior to the Designation Deadline Closing and is not continued or otherwise extended upon assumptionextended, or (ii) requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that of is not provided for by the Bankruptcy Court) Sale Order in order to permit the sale or transfer to Buyer of Sellers’ Seller’s rights under such Contract, and no such Consent has been obtained prior to the Designation DeadlineClosing, or (iii) relates solely to Excluded Assets. In addition, a Permit shall not be assigned to, or assumed by, Buyer to the extent that such Permit requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that of is not provided for by the Bankruptcy Court) Sale Order in order to permit the sale or transfer to Buyer of Sellers’ Seller’s rights under such Permit, and no such Consent has been obtained prior to the Closing. (f) Seller shall not terminate, amend, supplement, modify, waive any rights under, or create any adverse interest with respect to any of the Potential Assumed Contracts or Leases, or take any affirmative action not required thereby, without the prior written consent of Buyer (not to be unreasonably withheld or delayed) unless Buyer has provided written notice to Seller removing such Potential Assumed Contract or Lease from Schedule 2.6(a).

Assumption and Assignment of Contracts. (a) Sellers shall assign to Buyer or any Buyer Designee, and Buyer or any such Buyer Designee shall assume, the Closing Assumed Contracts at the Closing pursuant to the Sale Order. Buyer shall provide adequate assurance of any future performance in connection with the assignment and assumption of the Closing Assumed Contracts at Closing or the effective date of such assignment and assumption of an Additional Assumed Contract; provided, that all Cure Costs shall be the obligation, liability and responsibility of the Sellers. (b) The Sale Order shall provide for the assumption by Sellersthe applicable Seller party thereto, and the assignment to the extent legally capable of being assigned by Sellers such Seller to BuyerBuyer or any Buyer Designee, of each Closing Assumed Contract, and each Additional Assumed Contract, as applicable, pursuant to Section 365 of the Assumed Bankruptcy Code, the Bid Procedures Order, and the Sale Order. (c) Sellers shall file with the Bankruptcy Court a notice (a “Notice of Potential Assignment”) in the form and manner approved pursuant to the Bid Procedures Order that Sellers may wish to assume and assign certain Seller Contracts on in connection with the Transactions (each, an “Identified Contract”). At any time prior to the date that is five (5) days prior to the date of the Bankruptcy Court hearing to consider approval of this Agreement (the “Sale Hearing”), Buyer may, subject to the terms of the Bid Procedures Order, by written notice to the Sellers, designate, in writing, any Identified Contract for rejection by the Sellers effective on or as soon as reasonably practicable after the Closing (such Identified Contracts, the “Rejected Identified Contracts”). The Rejected Identified Contracts as of the date hereof are set forth on Schedule 1.5(c), which schedule shall be (and conditions shall be deemed) modified or supplemented to reflect additions or removals, as applicable, of Identified Contracts that are designated for rejection as set forth in this ‎Section 1.5 (the remainder of this Section 2.6, and shall provide for the Designation Deadline as defined herein“Rejected Contracts Schedule”). At Buyer’s request, and at Buyer’s cost and expensethe Closing, Sellers shall reasonably cooperate from assume and assign to Buyer or any Buyer Designee the Closing Assumed Contracts and any Additional Assumed Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code, the Bid Procedures Order, and the Sale Order, subject to provision by Buyer of adequate assurance of future performance as may be required under Section 365 of the Bankruptcy Code. (d) At any time prior to the date hereof forward with that is five (5) days prior to the date of the Sale Hearing (the “Designation Deadline”), Buyer as reasonably requested may, subject to the terms of the Bid Procedures Order, by Buyer written notice to the Sellers, (i) designate additional Identified Contracts or any other executory contracts that Buyer wishes the Sellers to allow assume and assign to Buyer to enter into an amendment of or any Lease upon assumption of such Lease by Buyer (and Sellers shall reasonably cooperate with Buyer to the extent reasonably requested with Buyer Designee in negotiations connection with the landlords thereof), or Transactions as “Additional Assumed Contracts” by providing written notice to Sellers in the form of an updated Additional Assumed Contracts Schedule; and (ii) designate additional Identified Contracts or any other executory Contracts that Buyer wishes for Sellers to otherwise amend any Lease reject in connection with the Transactions as “Additional Rejected Contracts” by providing written notice to Sellers in the form of an updated Rejected Contracts Schedule. Notwithstanding anything to the extent such amendments would not adversely affect any Seller; provided that Sellers shall not be required to enter into any such amendment if such amendment would result contrary contained in an assumption by any Seller of such Lease, unless such Lease will be assigned to Buyer at the time of such assumption. (b) Buyer shall, prior to the hearing on the Sale Motion, identify the Non-Real Property Contracts and Leases that Buyer has decided will be Assumed Contracts to be assumed and assigned to Buyer on the Closing Date by providing a list thereof to Sellers (as updated in accordance with this Agreement, if as of the “Closing Date, any Closing Assumed Contract List”). Up or Additional Assumed Contract is the subject of an objection as to 3 Business Days the amount of the Cure Costs required for the Sellers to assume and assign such contract to the Buyer or any Buyer Designee, or other objection as to the assumption and assignability of such contract, and such objection has not been resolved to the satisfaction of Buyer prior to the Closing Date, Buyer may, in its sole discretion, add or shall have the right to remove any Non-Real Property Contract or Lease as an such contract from the Closing Assumed Contract to Contracts and Additional Assumed Contracts lists before the Closing Date such that such contract shall not be considered assumed and assigned to Buyer on the Closing Date by amending the Closing Assumed Contract List, and, in connection with the Closing, the applicable Seller shall move in the Bankruptcy Court to assign any such Non-Real Property Contract or Lease on the Closing Assumed Contract List to Buyer, and at the Closing shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. In advance of the Closing Date, Buyer may, in its sole discretion, designate a Non-Real Property Contract or Lease for exclusion and rejection by delivering written notice to Sellers and, in connection with the Closing, the applicable Seller shall move to reject any such Non-Real Property Contract or Lease as of the Closing Date (which date shall constitute hereunder. Additional procedures for the Rejection Effective Date with respect thereto). From assumption and after the Closing Date until the Designation Deadline, with respect to assignment of any Non-Real Property Contract or Lease that was neither included on the additional Closing Assumed Contract List nor excluded Contracts and rejected as of the Closing Date, Buyer may, in its sole discretion, (i) designate such Non-Real Property Contract or Lease as an Additional Assumed Contract by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be assumed by Sellers and assigned to Buyer or (ii) designate such Non-Real Property Contract or Lease for exclusion and rejection for purposes of this Agreement andContracts, if executoryany, to be rejected by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be excluded and rejected by the applicable Seller and the date that such rejection shall be effective, which rejection shall be effective upon the delivery of such notice to Sellers (each, a “Rejection Effective Date”); provided, however, that, notwithstanding anything herein to the contrary, Buyer may not designate any Lease for exclusion and rejection if such exclusion and rejection would result in fewer than 140 Leases being assumed and assigned to Buyer. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(i), the applicable Seller shall move as set forth in the Bankruptcy Court within 5 days of receipt of such notice to assign such Non-Real Property Contract or Lease to Buyer and shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(ii), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to reject such Non-Real Property Contract or Lease as of the applicable Rejection Effective Date. In the event that Buyer has not provided a written designation to assume and assign or reject any Non-Real Property Contract or Lease pursuant to this Section 2.6(b) by the Designation Deadline, then such Non-Real Property Contract or Lease shall be deemed to be excluded and rejected and Sellers may move in the Bankruptcy Court to reject such Non-Real Property Contract or Lease as of the Designation Deadline (which Designation Deadline shall constitute the Rejection Effective Date with respect thereto), and no Seller shall have any obligation to assign any such Non-Real Property Contract or Lease to Buyer hereunder. Any Non-Real Property Contract or Lease that is designated (or deemed to be designated) for exclusion and rejection pursuant to this Section 2.6(b) shall constitute an “Excluded Contract” as of the Closing Date or, if thereafter, as of the Rejection Effective Date. To the extent that a Non-Real Property Contract or Lease has not at Closing been designated as an Excluded Contract or an Assumed Contract, then, until the Rejection Effective Date, Buyer shall be obligated to perform or cause to be performed all of Sellers’ obligations under such Non-Real Property Contract or Lease, and Buyer shall be entitled to all benefits of Sellers thereunder; provided that no Cure Amount shall be due with respect to such Non-Real Property Contract or Lease until the permanent assumption thereof at Assumption Approval in accordance with Section 2.6(g). Notwithstanding anything to the contrary contained herein, prior to the Designation Deadline, Buyers shall have designated for assumption by Sellers and assignment to Buyers such number of Leases that when added to any Leases included in the Assumed Contracts as of the Closing equals at least 140 Leases. In determining the total number of Leases assumed and assigned to Buyer, the following shall be included (in addition to Leases actually assumed and assigned to Buyer): (x) store locations that were previously closed by Sellers but reopened by Buyer (provided that Buyer pays the Cure Amounts due with respect to the Lease for such store); and (y) any Lease for which the landlord thereunder objects to the assignment and assumption of such Lease for any reason (other than payment of the Cure Amount) and such objection is not resolved in a manner acceptable to Buyer. (c) After the Closing and prior to the Designation Deadline, Sellers shall not terminate, amend, supplement, modify, waive any rights under, or create any Lien with respect to any Non-Real Property Contract or any Lease, or take any affirmative action not required by the terms thereof, without the prior written consent of Buyer (not to be unreasonably withheld or delayed), unless Buyer has provided notice to Sellers in writing designating such Non-Real Property Contract or Lease for rejection pursuant to Section 2.6(b). (d) Within three (3) Business Days of Buyer’s delivery of any notice of removal or designation of any Non-Real Property Contract or Lease as an Assumed Contract by Buyer pursuant to Section 2.6(b), or such lesser time as is approved by the Bankruptcy Court, Sellers shall give notice of the removal or designation of such Non-Real Property Contract or Lease as an Assumed Contract to the other parties theretoSale Order. (e) [Reserved]. (f) As part of the Sale Motion motion with respect to the Bid Procedures Order (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing ten (10) Business Days’ prior notice pursuant to the Bid Procedures Order of its intent to assume and assign any Closing Assumed Contract or Additional Assumed Contract, the Bankruptcy Court deem any non-debtor party to such Closing Assumed Contract or Additional Assumed Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any required Necessary Consent to the assumption of the Closing Assumed Contract or Additional Assumed Contract by the relevant Seller and assignment to BuyerBuyer or any Buyer Designee. (fg) In connection At Buyer’s request, Sellers shall reasonably cooperate with Buyer as reasonably requested by Buyer to allow Buyer to enter into an amendment of any Closing Assumed Contract or Additional Assumed Contract upon assignment of such Closing Assumed Contract or Additional Assumed Contract to Buyer or any Buyer Designee (and Sellers shall reasonably cooperate with Buyer to the extent reasonably requested by Buyer in negotiations with the assumption and assignment to Buyer of counterparties thereof); provided that (i) in no event shall any Assumed Contract that is executory pursuant to this Section 2.6, the cure amounts, as determined by the Bankruptcy Court, if any (such amounts, the “Cure Amounts”), necessary to cure all defaults, if any, and to pay all actual or pecuniary losses that have resulted from such defaults under the Assumed Contracts, including any amounts payable to any landlord under any Lease that is an Assumed Contract that relates to the period amendments be effective prior to the Assumption Approval, Closing and (ii) Sellers shall not be paid by Buyer, on required to enter into any such amendment if such amendment would result in the incurrence of any additional Liability or before the Assumption Approval, and any other adverse effect that would not have existed but for such amendment by Sellers and Sellers shall have no liability therefor, and neither the Cure Amounts paid by nor the expense of any other obligation set forth in this Section 2.6(f) shall reduce, directly or indirectly, any consideration received by Sellers hereunder; provided that any applicable Cure Amounts with regard to Assumed Contracts listed in the Closing Assumed Contract List shall be is not otherwise paid by Buyer at the Closing. (g) Sellers shall use their respective commercially reasonable efforts to obtain an order time of the Bankruptcy Court to assign the Assumed Contracts to Buyer (the “Assumption Approval”) on the terms set forth in this Section 2.6. In the event assumption by Sellers are unable to assign any of such Closing Assumed Contract to Buyer pursuant to an order of the Bankruptcy Court, then the Parties shall use their commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Consents from Governmental Entities and third parties necessary to assume and assign such or Additional Assumed Contracts to Buyer, including, in the case of Buyer, paying any applicable Cure AmountsContract. (h) To [Reserved] (i) Subject to ‎Section 1.5(j) and the Bid Procedures Order, to the extent that there is (i) an objection to the assumption and assignment of any Closing Assumed Contract outstanding at the Closing Date, (ii) an objection to the assumption and assignment of any Additional Assumed Contract or (iii) any Necessary Consent that is required to assume and assign to Buyer or any Buyer Designee any Closing Assumed Contract or Additional Assumed Contract is not obtained by the Designation DeadlineClosing Date, each Seller shall, with respect to each such Assumed Seller Contract, from and after the Closing and until the earliest to occur of (xA) the date on which such objection is resolved or such applicable Necessary Consent is obtained (which Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Buyer)obtained, and (yB) the date on which such Seller Contract is deemed rejected following under Section 365 of the written request of BuyerBankruptcy Code, use commercially reasonable efforts during the term of such Assumed Seller Contract (and to the extent the term of such Seller Contract ends prior to the earlier of clauses (A) or (B) above) to (i1) provide to Buyer the benefits under such Assumed ContractSeller Contract (it being understood that Buyer shall be solely responsible for the obligations under such Seller Contract during such period), (ii2) cooperate in any reasonable and lawful arrangement (arrangement, including holding such Seller Contract in trust for Buyer pending resolution of such objection or receipt of the required Necessary Consent) , designed to provide such benefits to Buyer Buyer, and (iii3) use its commercially reasonable efforts to enforce for the account of Buyer any rights of such Seller under such Assumed Contract (Seller Contract, including the right to elect to terminate such Assumed Seller Contract in accordance with the terms thereof upon the written direction of Buyer); provided, however, that notwithstanding the foregoing, Sellers shall not be obligated to take any action that breaches, violates or results in default under the terms of any Seller Contract. Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Buyer the benefits contemplated by this Section 2.6(h‎Section 1.5(i). (ij) Notwithstanding the foregoing, a Seller Contract shall not be an a Closing Assumed Contract or Additional Assumed Contract hereunder and shall not be assigned to, or assumed by, to Buyer to the extent that such Seller Contract is (i) is deemed rejected by a Seller or terminated by a Seller in accordance with under Section 365 of the terms hereof or by the other party thereto, or terminates or expires by its terms, on or prior to the Designation Deadline and is not continued or otherwise extended upon assumption, Bankruptcy Code or (ii) requires a the subject of an objection to assumption or assignment or requires, under applicable non-bankruptcy Law, Necessary Consent of any Governmental Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer assumption and assignment by the applicable Seller to Buyer or any Buyer Designee of Sellers’ rights under such ContractSeller Contract pursuant to Section 365 of the Bankruptcy Code, and no such objection has not been resolved or such Necessary Consent has not been obtained prior to the Designation Deadline. In addition, a Permit shall not 60th day following the Closing (as such 60-day period may be assigned to, extended by mutual agreement of Buyer and Sellers); provided that any Closing Assumed Contract or assumed by, Buyer Additional Assumed Contract that is the subject of an objection with respect solely to the extent that such Permit requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that amount of the Bankruptcy Court) in order to permit the sale or transfer to Buyer of Sellers’ rights under such Permit, Cure Cost may be assumed and no such Consent has been obtained assigned prior to the resolution of such objection pursuant to the Bid Procedures Order (provided Sellers have escrowed the disputed Cure Cost pending resolution of such objection that is acceptable to Buyer). (k) If prior to or following Closing, it is discovered that a Contract that is Related to the Business should have been listed on Schedule 1.5(c) as an Identified Contract but was not so listed and has not been rejected by Sellers (any such Contract, a “Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof (but in no event later than two (2) Business Days following the discovery thereof), notify Buyer in writing of such Previously Omitted Contract and all Cure Costs (if any) for such Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than five Business Days following notification of such Previously Omitted Contract from Sellers, designating such Previously Omitted Contract as “Assumed” or “Rejected” (a “Previously Omitted Contract Designation”). A Previously Omitted Contract designated in accordance with this ‎Section 1.5(k) as “Rejected,” or with respect to which Buyer fails to deliver a Previously Omitted Contract Designation, shall be deemed an Excluded Contract and added to the Rejected Contracts Schedule. (l) If Buyer designates a Previously Omitted Contract as “Assumed” in accordance with ‎Section 1.5(k), (i) such Previously Omitted Contract shall be added to the Additional Assumed Contracts Schedule and deemed to be an “Additional Assumed Contract” for all purposes hereunder, and (ii) Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract notifying such counterparties of the Cure Costs with respect to such Previously Omitted Contract and Sellers’ intention to assume and assign such Previously Omitted Contract in accordance with this ‎Section 1.5(l). The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with notice pursuant to the terms of the Bid Procedures Order. If the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to the objection, Sellers shall seek a hearing before the Bankruptcy Court (which may be sought on an expedited basis) to determine the Cure Costs and approve the assumption. If no objection is served on Sellers and Buyer, such Previously Omitted Contract may be deemed a Closing Assumed Contract. For the avoidance of doubt, Sellers shall be responsible for all Cure Costs relating to such “Assumed” Previously Omitted Contracts and for any Liabilities relating to such “Assumed” Previously Omitted Contracts arising prior to the assignment to Buyer.