IN THE UNITED STATES BANKRUPTCY COURT FOR THE...

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

) In re: ) Chapter 11

) Z GALLERIE, LLC, et al.,1 ) Case No. 19-10488 (LSS)

) Debtors. ) (Jointly Administered)

)

NOTICE OF FILING OF THIRD PLAN SUPPLEMENT

PLEASE TAKE NOTICE THAT on May 28, 2019, the above-captioned debtors and debtors in possession (the “Debtors”) filed the Notice of Filing of Plan Supplement [Docket No. 309] (the “First Plan Supplement”) in support of the First Amended Joint Plan of Reorganization of Z Gallerie, LLC and Z Gallerie Holding Company, LLC Pursuant to Chapter 11 of the Bankruptcy Code (as may be modified, amended, or supplemented from time to time, the “Plan”);2

PLEASE TAKE FURTHER NOTICE THAT on June 9, 2019, the Debtors filed the Notice of Filing of Second Plan Supplement [Docket No. 357] (the “Second Plan Supplement”) in support of the Plan.

PLEASE TAKE FURTHER NOTICE THAT the Debtors hereby file this amended plan supplement (the “Third Plan Supplement,” and together with the First Plan Supplement and the Second Plan Supplement, collectively the “Plan Supplement”) in support of the Plan with respect to the following documents attached hereto:3

• Exhibit A(i)—Schedule of Assumed Executory Contracts and Unexpired Leases;

• Exhibit A(ii)—Schedule of Assumed Executory Contracts and Unexpired Leases Filedin the First Plan Supplement [Docket No. 309];

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: Z Gallerie, LLC (3816) and Z Gallerie Holding Company, LLC (5949). The location of the Debtors’ service address is: 1855 West 139th Street, Gardena, CA 90249.

2 Capitalized terms used and not defined herein have the meanings given to them in the Plan.

3 As announced on May 24, 2019, the Debtors and the Winning Bidder entered into the Plan Support Agreement regarding the Plan, pursuant to which the parties will consummate the Sale Transaction [Docket No. 300, Exhibit A]. On June 9, 2019, the Debtors and DBHI reached an agreement in principal regarding the form of Asset Purchase Agreement included in the Second Plan Supplement, pursuant to which the parties will consummate the Sale Transaction. The terms of the Plan Support Agreement and Asset Purchase Agreement are reflected in the Plan.

Case 19-10488-LSS Doc 378 Filed 06/13/19 Page 1 of 84

• Exhibit B—Schedule of Rejected Executory Contracts and Unexpired Leases;

• Exhibit E—Form of Wind-Down Trust Agreement;

• Exhibit F—Form of Store Closing Agency Agreement; and

• Exhibit G—Schedule of Additional Closing Stores.

PLEASE TAKE FURTHER NOTICE THAT the documents contained in the Plan Supplement are integral to, and are considered part of, the Plan. If the Plan is approved, the documents contained in the Plan Supplement will be approved by the Bankruptcy Court pursuant to the Confirmation Order.

PLEASE TAKE FURTHER NOTICE THAT certain documents, or portions thereof, contained in the Plan Supplement remain subject to ongoing review, revision, and negotiation among the Debtors and interested parties with respect thereto. The Debtors, with the consent of the Winning Bidder as applicable, reserve the right to alter, amend, modify, or supplement any document in this Plan Supplement in accordance with the Plan at any time before the Effective Date of the Plan or any such other date as may be provided for by the Plan or by order of the Bankruptcy Court; provided that if any document in the Plan Supplement is altered, amended, modified, or supplemented in any material respect, the Debtors will file a blackline of such document with the Bankruptcy Court.

PLEASE TAKE FURTHER NOTICE THAT the Debtors will seek confirmation of the Plan at the Confirmation Hearing scheduled for June 13, 2019, at 2:00 p.m. prevailing Eastern Time, before the Honorable Laurie Selber Silverstein, in the United States Bankruptcy Court for the District of Delaware, located at 824 N. Market St., Willington, Delaware.

PLEASE TAKE FURTHER NOTICE THAT if you would like to obtain a copy of the Disclosure Statement, the Plan, the Plan Supplement, or related documents, you may access (a) the Debtors’ restructuring website at https://cases.stretto.com/zgallerie or (b) the Bankruptcy Court’s website at http://www.deb.uscourts.gov/.

The Winning Bidder is conducting ongoing diligence and may determine to modify the schedules contained herein. Pursuant to the Plan, the Debtors, on behalf of DBHI, reserve the right to modify the Schedule of Assumed Executory Contracts and Unexpired Leases and Schedule of Rejected Executory Contracts and Unexpired Leases as follows: (i) with respect to Unexpired Leases, through and including the Confirmation Date and (ii) with respect to Executory Contracts, through and including ninety days following the Effective Date.


https://cases.stretto.com/zgallerie

Dated: June 13, 2019 /s/ Domenic E. Pacitti Wilmington, Delaware Domenic E. Pacitti (DE Bar No. 3989)

Michael W. Yurkewicz (DE Bar No. 4165) KLEHR HARRISON HARVEY BRANZBURG LLP 919 N. Market Street, Suite 1000 Wilmington, Delaware 19801 Telephone: (302) 426-1189 Facsimile: (302) 426-9193 -and-Joshua A. Sussberg, P.C. (admitted pro hac vice) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -and-Justin R. Bernbrock (admitted pro hac vice) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 300 North LaSalle Chicago, Illinois 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200

Co-Counsel for the Debtors and Debtors in Possession


Exhibit A

Schedule of Assumed Executory Contracts and Unexpired Leases

This Exhibit A includes the following:

• Exhibit A(i): Schedule of Assumed Executory Contracts and Unexpired Leases

• Exhibit A(ii): Schedule of Assumed Executory Contracts and Unexpired Leases Filed in theFirst Plan Supplement [Docket No. 309]4

Pursuant to the Plan, the Debtors, on behalf of DBHI, reserve the right to modify the Schedule of Assumed Executory Contracts and Unexpired Leases and Schedule of Rejected Executory Contracts and Unexpired Leases as follows: (i) with respect to Unexpired Leases, through and including the Confirmation Date and (ii) with respect to Executory Contracts, through and including ninety days following the Effective Date.

4 A blackline comparison of the Schedule of Assumed Executory Contracts and Unexpired Leases enclosed herein to the Schedule of Assumed Executory Contracts and Unexpired Leases filed in the First Plan Supplement [Docket No. 309] is illegible. Therefore, the Debtors are re-submitting the latter for comparison purposes as Exhibit A(ii).


Assume/

Designate

Debtors Asserted

Cure Amount

(Undisputed)

LL Asserted Cure

Amount

If Different

(Disputed)

Assumed 10,422 57,033

Assumed 17,353 ‐

Assumed 28,202 98,354

Assumed 8,118 ‐

Assumed 11,933 99,251

Assumed 9,546 73,114

Assumed 10,358 83,181

Assumed 11,638 ‐

Assumed 15,788 143,110

Assumed 15,737 46,187

Assumed 9,454 21,510

Assumed 15,896 85,663

Assumed 11,441 32,960

Assumed 7,740 24,961

Assumed 7,782 19,453

Assumed 9,960 ‐

Assumed 9,577 ‐

Assumed 26,539 147,648

Assumed 8,615 29,751

Assumed 8,262 85,185

Assumed 11,540 75,027

Assumed 8,522 44,888

Designated 6,893 92,913

Assumed 20,785 135,263

Assumed 3,325 ‐

Assumed 11,856 62,880

Assumed 14,579 82,304

Assumed 14,929 37,876

Assumed 10,206 67,349

Assumed 63,886 236,297

Assumed 14,111 73,671

Assumed 7,861 ‐

Assumed 7,184 ‐

Assumed 15,880 133,007

Assumed 11,247 ‐ 35 Westfield Corp. ‐ Village at Westfield Topanga Lease re: Store #34 (Village at Topanga), dated 9/1/1998

Tot l

34 Westfield Corp. ‐ Sherman Oaks Fashion Associates LP Lease re: Store #45 (Fashion Square), dated 6/27/2014

33 Village Square Dana Park, LLC Lease re: Store #98 (Village Square at Dana Park), dated 8/16/2008

32 The Roseville Fountains LP ‐ The Fountains Lease re: Store #97 (The Fountains at Roseville), dated 6/27/2008

31 The Retail Property Trust Lease re: Store #72 (Roosevelt Field), dated 10/28/2016

30 Terreno 139th LLC ‐ Paramus Design Center Lease re: Gardena Distribution Center and HQ

28 Taubman Centers, Inc. ‐ Tampa Westshore Associates Limited Partnership Lease re: Store #63 (International Plaza), dated 3/29/2003

29 Taubman Centers, Inc. ‐ Willow Bend Shopping Center Limited Partnership Lease re: Store #29 (Shops at Willow Bend), dated 4/18/2012

26 Taubman Centers, Inc. Lease re: Store #35 (University Town Center), dated 10/7/2014

27 Taubman Centers, Inc. Lease re: Store #38 (Cherry Creek), dated 12/1/1999

25 Southglenn Property Holdings LLC Lease re: Store #31 (The Streets at South Glenn), dated 9/1/2013

24 South Coast Plaza Lease re: Store #52 (South Coast Plaza), dated 5/5/2001

23 SLTS Grand Avenue ‐ SLTS Grand Avenue Lease re: Store #47 (Southlake Town Square), dated 4/22/2016

22 Simon Property Group ‐ Shops at Mission Viejo, LLC Lease re: Store #44 (Shops at Mission Viejo), dated 9/1/1999

21 Millenia Crossing Lease re: Store #60 (Millenia Crossing), dated 10/18/2002

20 Mercato, LLP managed by Madison Marquette Lease re: Store #9 (The Mercato), dated 2/15/2009

19 Macerich ‐ Scottsdale Fashion Square LLC Lease re: Store #16 (Scottsdale Fashion Square), dated 8/28/2010

18 Knox St Village Holdings ‐ Knox St Village Holdings Lease re: Store #51 (Knox Street), dated 4/1/2001

17 Jones Lang LaSalle ‐ PPF RTL Atlantic Town Center LLC Lease re: Store #80 (Atlantic Station), dated 10/25/2005

16 Genova Burns, LLC ‐ Paramus Design Center Lease re: Store #91 (Paramus Design Center), dated 2/16/2018

15 General Growth Properties, Inc. ‐ La Cantera Specialty Retail, LP Lease re: Store #11 (La Cantera), dated 8/10/2011

13 General Growth Properties, Inc. ‐ General Growth Properties, Inc. Lease re: Store #46 (Perimeter Mall), dated 7/1/2011

14 General Growth Properties, Inc. ‐ Hocker Oxmoor LLC Lease re: Store #87 (Oxmoor Center), dated 6/15/2006

12 General Growth Properties, Inc. ‐ Fashion Show Mall LLC Lease re: Store #65 (Fashion Show), dated 4/12/2003

11 General Growth Properties, Inc. ‐ Fashion Place Lease re: Store #32 (Fashion Place), dated 9/14/2012

10 General Growth Properties, Inc. ‐ Crocker Downtown Development Associates Lease re: Store #64 (Mizner Park), dated 3/15/2003

9 FRIT San Jose Town & Country ‐ FRIT San Jose Town & Country LLC Lease re: Store #57 (Santana Row), dated 11/7/2002

8 Forest City ‐ Forest City Commercial Management Lease re: Store #10 (Village at Gulfstream Park), dated 2/3/2011

7 Eskridge (E&A) LLC ‐ Mosaic District Lease re: Store #24 (Mosaic District), dated 5/26/2017

6 City Centre Partners ‐ Citycentre Two Partners LP Lease re: Store #20 (CityCentre), dated 9/12/2013

5 Berman Enterprises ‐ Downtown at the Gardens Ltd Lease re: Store #83 (Downtown at the Gardens), dated 1/7/2006

4 AD Pembroke Land Co ‐ The Shops At Pembroke Gardens Lease re: Store #96 (Pembroke Pines), dated 8/7/2008

3 4th Street Holdings, LLC Lease: re Store #21 and Buying Office (Berkeley) dated 10/1/1991

1 168th and Dodge LP ‐ The Mall in Columbia Business Trust Lease re: Store #70 (Mall in Columbia), dated 6/30/2017

2 223‐1 DL Holdings ‐ The Shops at Dos Lagos Lease re: Store #89 (Dos Lagos), dated 10/6/2006

Z Gallerie

Plan Supplement‐Unexpired Leases

No Counterparty Name State what the contract or lease is for and the nature of the debtor's

interest

Exhibit A(i)Schedule of Assumed Executory Contracts and Unexpired Leases


No. Counterparty Name Debtor State what the contract or lease is for and the nature of the debtor's interest Amount Required to CureDefault Thereunder, If Any

Assignee (if Applicable)

1 A&G Realty Partners, LLC Z Gallerie LLC Real Estate Services Agreement $0 Winning Bidder2 A&G Realty Partners, LLC Z Gallerie LLC Real Estate Services Agreement $0 Winning Bidder3 ACE American Insurance Company (Chubb) Z Gallerie LLC Insurance Policy - General Liability, Employee Benefits Liability, Contingent Auto Liability $0 Winning Bidder

4 Adobe Systems Inc. Z Gallerie LLC Adobe Sales Order DR1677518 $0 Winning Bidder5 Adobe Systems Inc. Z Gallerie LLC Adobe Sales Order DR2166008 $0 Winning Bidder6 Adobe Systems Inc. Z Gallerie LLC Adobe Sales Order DR 1043830 $0 Winning Bidder7 Aetna Life Insurance Company Z Gallerie LLC Aetna Group Insurance Policy $0 Winning Bidder8 Affirm, Inc. Z Gallerie LLC Merchant Agreement $0 Winning Bidder9 American Express Travel Related Services Com Z Gallerie LLC CORPORATE SERVICES COMMERCIAL ACCOUNT AGREEMENT $0 Winning Bidder10 American Heritage Billiards, Inc. Z Gallerie LLC Vendor Agreement $21,919 Winning Bidder11 Anchor Computer Z Gallerie LLC Database Services Agreement $0 Winning Bidder12 Anchor Computer Z Gallerie LLC Licensing Agreement $0 Winning Bidder13 Social Annex, Inc.(dba Annex cloud) Z Gallerie LLC Service Agreement $12,600 Winning Bidder14 Aptos, Inc. Z Gallerie LLC Subscription Services Order Form & Software Support Addendum $456,256 Winning Bidder15 Aptos, Inc. Z Gallerie LLC Statement of Work Issued 9/21/2015 Included above Winning Bidder16 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Merch RBI Data Connectors Implementation Included above Winning Bidder17 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Customer Implementation Included above Winning Bidder18 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Implementation Included above Winning Bidder19 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Adoption Services Included above Winning Bidder20 Aptos, Inc. Z Gallerie LLC Data Transfer Form Included above Winning Bidder21 Aptos, Inc. Z Gallerie LLC Hardware Order Included above Winning Bidder22 Aptos, Inc. Z Gallerie LLC Hardware Order - HP MP9 Server Configuration - Labs - Quote #41916-1 dated 4/20/2016 Included above Winning Bidder23 Aptos, Inc. Z Gallerie LLC Hardware Order - RF Hardware Configuration - Quote #021517-4 dated 4/27/2017 Included above Winning Bidder24 Aptos, Inc. Z Gallerie LLC Amendment to Subscription Service Order Addendum Included above Winning Bidder25 Aptos, Inc. Z Gallerie LLC Master Agreement Included above Winning Bidder26 Aptos, Inc. Z Gallerie LLC Statement of Work Included above Winning Bidder27 AT&T Z Gallerie LLC Universal Extension - Amendment to AT&T Business Network Service Pricing Schedule or Service Agreement #20120207-0040 $25,207 Winning Bidder

28 AT&T Z Gallerie LLC AT&T Managed Internet Service Pricing Schedule - Contract ID 8432644 Included above Winning Bidder29 AT&T Z Gallerie LLC Transfer of Service Agreement (143944UA) Included above Winning Bidder30 AT&T Z Gallerie LLC AT&T Business Local Calling ILEC Pricing Schedule - Contract ID 8850752 Included above Winning Bidder31 AT&T Z Gallerie LLC AT&T Business Local Calling ILEC Pricing Schedule - Contract ID 8850753 Included above Winning Bidder32 AT&T Z Gallerie LLC AT&T Hybrid Cloud Solutions Pricing Schedule - Contract ID 143944UA Included above Winning Bidder33 AT&T Z Gallerie LLC AT&T Hybrid Cloud Solutions Pricing Schedule - Contract ID 143944UA Included above Winning Bidder34 AT&T Z Gallerie LLC AT&T VPN Service Pricing Addendum for Access Channels - Contract ID 143944UA Included above Winning Bidder35 AT&T Z Gallerie LLC AT&T VPN Service Pricing Addendum for Access Channels - Contract ID 143944UA Included above Winning Bidder36 AT&T Z Gallerie LLC AT&T Network Based IP VPN Remote Access Pricing Schedule - Contract ID 143944UA Included above Winning Bidder37 AT&T Z Gallerie LLC AT&T Network Based IP VPN Remote Access Pricing Schedule - Contract ID 143944UA Included above Winning Bidder38 Atlas Employment Services, Inc Z Gallerie LLC Agreement for Staffing Services for Z Gallerie Inc. $0 Winning Bidder39 Avalara, Inc. Z Gallerie LLC Sales Order for Sales Tax Software - Purchase Order IT-01AVA-20160826 $0 Winning Bidder40 Avalara, Inc. Z Gallerie LLC Sales Order for Sales Tax Software - Renewal $0 Winning Bidder41 Avalara, Inc. Z Gallerie LLC Statement of Work Sales Audit Tax Content Consulting Project $0 Winning Bidder42 Avalara, Inc. Z Gallerie LLC Statement of Work $0 Winning Bidder43 Bank of America Merchant Services LLC Z Gallerie LLC Mutual Confidentialty Agreement Included below Winning Bidder44 Bank Of America Z Gallerie LLC Equipment Agreement Included below Winning Bidder45 Bank of America Merchant Services LLC Z Gallerie LLC Amendment to Replacement Agreement Included below Winning Bidder46 Bank of America Merchant Services LLC Z Gallerie LLC Amendment to the Stored Value Card Processing Agreement Included below Winning Bidder47 Bank of America Merchant Services LLC Z Gallerie LLC Service Confirmation Agreement $9,581 Winning Bidder48 Bassett Mirror Co., Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder49 Brentwood Associates Private Equity V, L.P. Z Gallerie LLC Letter of Credit ("LOC") $0 Winning Bidder

50 Brentwood Private Equity V, LP Z Gallerie LLC Financing Agreement-Unsecured Notes $0 Winning Bidder51 C.N.A Z Gallerie LLC Insurance Policy - Cargo Stock Throughput $0 Winning Bidder52 Cabrillo Advisors, Inc. Z Gallerie LLC Consulting Agreement $0 Winning Bidder53 California Umbrella Z Gallerie LLC Vendor Agreement $0 Winning Bidder54 CDW Corporation Z Gallerie LLC Licensing Subscription $4,653 Winning Bidder

Z GalleriePlan Supplement-Executory Contracts and Agreements

[1]

[1] Pursuant to the Plan, the Debtors, on behalf of DBHI, reserve the right to modify the Schedule of Assumed Executory Contracts and Unexpired Leases and Schedule of Rejected Executory Contracts and Unexpired Leases with respect to Executory Contracts, through and including ninety (90) days following the Effective Date.





55 Century Group Professionals, LLC Z Gallerie LLC Settlement Agreement $0 Winning Bidder56 Chandra Rugs Z Gallerie LLC Vendor Agreement $0 Winning Bidder57 Citibank, N.A. Z Gallerie LLC Letter of Credit ("LOC") $0 Winning Bidder58 Classic Home Z Gallerie LLC Vendor Agreement $0 Winning Bidder59 Comenity Bank f/k/a World Financial Network Z Gallerie LLC Private Label Credit Card Program Agreement dated October 15, 2003 $0 Winning Bidder60 Comenity Bank f/k/a World Financial Network Z Gallerie LLC First Amendment to the Private Label Credit Card Program Agreement dated October 15, 2003 $0 Winning Bidder61 Comenity, LLC Z Gallerie LLC Point of Sale Test Account Set up $0 Winning Bidder62 Comenity, LLC Z Gallerie LLC Mutual Non-Disclosure Agreement $0 Winning Bidder63 Commonwealth Home Fashions Z Gallerie LLC Vendor Agreement $27,423 Winning Bidder64 Connexity, Inc. Z Gallerie LLC Merchant Program Agreement $40,454 Winning Bidder65 Container Marketing, Inc. (CMI) Z Gallerie LLC Vendor Agreement $0 Winning Bidder66 Crown Equipment Corporation Z Gallerie LLC Short Term Rental Agreement $28,864 Winning Bidder67 Crown Equipment Corporation d/b/a Crown

Lift Trucks - Long BeachZ Gallerie LLC Proposal-Equipment Rental Included above Winning Bidder

68 Crown Equipment Corporation d/b/a Crown Lift Trucks - Atlanta

Z Gallerie LLC Full Maintenance Service Agreement Included above Winning Bidder

69 Crown Equipment Corporation d/b/a Crown Lift Trucks - Long Beach

Z Gallerie LLC Full Maintenance Service Agreement Included above Winning Bidder

70 Curalate Inc. Z Gallerie LLC Master Service List and License Agreement $0 Winning Bidder71 Dallimore & Co. Z Gallerie LLC Services Agreement $0 Winning Bidder72 Discovery Benefits, Inc. Z Gallerie LLC Administrative Services Agreement $0 Winning Bidder73 Downtown Company Luxury Bedding, Inc. Z Gallerie LLC Vendor Agreement $938 Winning Bidder74 EFT Media Productions LLC d/b/a Evolution

MediaZ Gallerie LLC Location Contract for Filming Vanderpump Rules $0 Winning Bidder

75 Emtrain Z Gallerie LLC Add-On Order Form re License Agreement $0 Winning Bidder76 Equest Corp. Z Gallerie LLC Maintenance Renewal $0 Winning Bidder77 Euro Style, Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder78 Facilitysource, LLC Z Gallerie LLC Facilities Maintenance Services Agreement $267,115 Winning Bidder79 Federal Insurance Company (Chubb) Z Gallerie LLC Insurance Policy - Crime & Fiduciary $0 Winning Bidder80 Fireman's Fund Insurance Company (Allianz

SE)Z Gallerie LLC Insurance Policy - Property, Auto, Inland Marine, $0 Winning Bidder

81 First Data Services, LLC, as asignee of IPS Card Solutions, d/b/a ValueLink

Z Gallerie LLC Services Agreement $0 Winning Bidder

82 Gasthalter & Co. LP Z Gallerie LLC Engagement Letter re Retention of Communications Consultant $0 Winning Bidder83 Gift Solutions LLC Z Gallerie LLC Services Agreement $0 Winning Bidder84 Granite Telecommunications LLC Z Gallerie LLC AT&T Virtual Private Network Service Commercial Interconnect Authorization and Addendum to Pricing Schedule $31,760 Winning Bidder85 Granite Telecommunications LLC Z Gallerie LLC Commerical Account Form and Letter of Agency Included above Winning Bidder86 Great American Insurance Company of New

YorkZ Gallerie LLC Insurance Policy - Umbrella $0 Winning Bidder

87 Great West Trust Company, LLC Z Gallerie LLC Trust Agreement $0 Winning Bidder88 Home Meridian Intl.,Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder89 HR Personnel Services Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $0 Winning Bidder90 International Color Services Z Gallerie LLC Agreement for Services re Graphics and Printing $57,508 Winning Bidder91 Invesp Z Gallerie LLC CRO Service Agreement $0 Winning Bidder92 IPS Card Solutions, Inc. Z Gallerie LLC Stored Value Card Processing Agreement $0 Winning Bidder93 IPS Card Solutions, Inc. d/b/a Valuelink Z Gallerie LLC Stored Value Card Processing Agreement $0 Winning Bidder94 Jaipur Rugs,Inc.Norcross, GA(dba Jaipur Rugs) Z Gallerie LLC Vendor Agreement $3,025 Winning Bidder

95 JDA Software Inc Z Gallerie LLC Schedule 2-A Amended Maintenance Schedule $77,414 Winning Bidder96 Jenna Couture Z Gallerie LLC Settlement Agreement $0 Winning Bidder97 Jules & Associates Z Gallerie LLC Master Equipment Lease No. 200772418, Schedule No. 1 $0 Winning Bidder98 KeyBank National Association Z Gallerie LLC Letter of Credit Reimbursement and Security Agreement (Standby Letter of Credit for benefit of Hanover Insurance Company) $0 Winning Bidder99 KeyBank National Association Z Gallerie LLC Letter of Credit Reimbursement and Security Agreement (Standby Letter of Credit for benefit of Hartford Fire Insurance Company) $0 Winning Bidder100 KHL Engineered Packaging Solutions Z Gallerie LLC Equipment Rental Agreement dated 4/28/2008 $0 Winning Bidder101 Klehr Harrison Harvey Branzburg LLP Z Gallerie LLC Engagement Letter re Retention of Klehr Harrison as Conflicts Counsel $0 Winning Bidder102 Kount, Inc. Z Gallerie LLC Kount Services Agreement and Amendments $3,405 Winning Bidder





103 LANtelligence Z Gallerie LLC Shoretel Licenses - Quote #MT-005750 $0 Winning Bidder104 LANtelligence Z Gallerie LLC 2016-2017 ShoreTel Partner Support Renewal - Quote # MT-007122 $0 Winning Bidder105 LANtelligence Z Gallerie LLC Shoretel Licenses - Quote # MT-007378 $0 Winning Bidder106 LANtelligence Z Gallerie LLC 2017-2018 ShoreTel Partner Support - Quote # LP009000 $0 Winning Bidder107 LANtelligence Z Gallerie LLC 2018-2019 Partner Support - Quote # LP1000075 $0 Winning Bidder108 LinkedIn Z Gallerie LLC LinkedIn Subscription Agreement $0 Winning Bidder109 Listrak, Inc. Z Gallerie LLC Services Agreement $96,320 Winning Bidder110 Lloyd's of London/Euclid Executive Z Gallerie LLC Insurance Policy - D&O $0 Winning Bidder111 Lloyd's of London/Euclid Executive Z Gallerie LLC Insurance Policy - Excess D&O $0 Winning Bidder112 M.C. Dean, Inc. Z Gallerie LLC Annual Maintenance Contract $0 Winning Bidder113 Metropolitan Life Insurance Company Z Gallerie LLC Group Long Term Disability Insurance Policy $0 Winning Bidder114 Metropolitan Telecommunications a/k/a

MetTelZ Gallerie LLC Agreement for Voice, Advanced Voice, Data & IP Services $43,882 Winning Bidder

115 Microexcel Inc. Z Gallerie LLC SOW - Aptos CRM Feeds $129,832 Winning Bidder116 Microexcel Inc. Z Gallerie LLC SOW - BOPS Phase II Enhancements Included above Winning Bidder117 Microexcel Inc. Z Gallerie LLC SOW - Open Orders Export Using Shopvisible API Included above Winning Bidder118 Microexcel Inc. Z Gallerie LLC SOW - Order Tracking II ETA Message Included above Winning Bidder119 Microexcel Inc. Z Gallerie LLC SOW - Taxware Enhancements Included above Winning Bidder120 Microexcel Inc. Z Gallerie LLC SOW - Web Customer Export Vi API Included above Winning Bidder121 Microexcel Inc. Z Gallerie LLC SOW - Annex Cloud Ratings Reviews API Integration Included above Winning Bidder122 Microexcel Inc. Z Gallerie LLC SOW - Buy Online Pickup Phase 1 Included above Winning Bidder123 Microexcel Inc. Z Gallerie LLC SOW - Kount Integration on Website Included above Winning Bidder124 Microexcel Inc. Z Gallerie LLC SOW - Custom Furniture/Product Variation Improvement Included above Winning Bidder125 Microexcel Inc. Z Gallerie LLC SOW - Coupon Module Enhancements Included above Winning Bidder126 Microexcel Inc. Z Gallerie LLC SOW - BOPS Portal Included above Winning Bidder127 Microexcel Inc. Z Gallerie LLC SOW - A+ Page Development Included above Winning Bidder128 Microexcel Inc. Z Gallerie LLC SOW - Aptos CRM API Integration Included above Winning Bidder129 Microexcel Inc. Z Gallerie LLC SOW - Avalara Tax Engine Integration Included above Winning Bidder130 Microexcel Inc. Z Gallerie LLC SOW - Internal Application Included above Winning Bidder131 Microexcel Inc. Z Gallerie LLC SOW - Load Testing Website Included above Winning Bidder132 Microexcel Inc. Z Gallerie LLC SOW - Payeezy Integration Included above Winning Bidder133 Microexcel Inc. Z Gallerie LLC SOW - Annex Cloud Ratings Reviews API Integration Included above Winning Bidder134 Microexcel Inc. Z Gallerie LLC SOW - BOPS Portal Customer Service Included above Winning Bidder135 Microexcel Inc. Z Gallerie LLC SOW - Custom SKU Search Included above Winning Bidder136 Microexcel Inc. Z Gallerie LLC Audioeye Accessibility Compliance Enhancements Included above Winning Bidder137 Mission Cloud Services Z Gallerie LLC Change Order Request re: Proxy Setup $968 Winning Bidder138 Modus Furniture International Z Gallerie LLC Vendor Agreement $10,612 Winning Bidder139 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20190101 $0 Winning Bidder140 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20170427 $0 Winning Bidder141 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20180220 $0 Winning Bidder142 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20160419 $0 Winning Bidder143 Moovweb Z Gallerie LLC Master Service Agreement $0 Winning Bidder144 Moovweb Z Gallerie LLC Order Form for online services $0 Winning Bidder145 Moovweb Z Gallerie LLC Order Form for online services $0 Winning Bidder146 MVP Systems Software, Inc. Z Gallerie LLC JAMS Software Maintenance Subscription $0 Winning Bidder147 Oliver Gal. Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder148 Onica Group LLC Z Gallerie LLC Cloud Optimizer Terms and Conditions $37,050 Winning Bidder149 Oracle America Inc Z Gallerie LLC Executable Quote re Endeca $44,268 Winning Bidder150 Oracle America Inc Z Gallerie LLC Purchase Order #IT-01ENDECA-180119-1 Included above Winning Bidder151 Oracle America Inc Z Gallerie LLC Purchase Order #IT-01ORACLE-20160105-1 Included above Winning Bidder152 Oracle America Inc Z Gallerie LLC Purchase Order #IT-01ORACLE-20160105-2 Included above Winning Bidder153 Oracle Premier Support Renewal Center Z Gallerie LLC Technical Support Services Renewal Order - Support Service #6243176 Included above Winning Bidder154 Oriental Weavers Z Gallerie LLC Vendor Agreement $307 Winning Bidder155 Park Place Technologies Z Gallerie LLC Pricing Schedule $0 Winning Bidder156 Print Strategy Inc Z Gallerie LLC Quote for Printing and Mailing Proposal for Paper products (executed by both parties) $28,395 Winning Bidder157 RR Donnelly & Sons Company Z Gallerie LLC Agreement $64,126 Winning Bidder





158 R Squared Marketing Inc. Z Gallerie LLC Master Service Agreement with R2 Marketing $0 Winning Bidder159 RetailNext, Inc. Z Gallerie LLC Purchase Agreement $69,411 Winning Bidder160 RetailNext, Inc. Z Gallerie LLC Master Purchse Agreement 01 Included above Winning Bidder161 RetailNext, Inc. Z Gallerie LLC Amendment to Master Service Agreement 01 Included above Winning Bidder162 Rizzy Home, aGeorgiacorporation (dba Rizzy) Z Gallerie LLC Vendor Agreement $3,126 Winning Bidder

163 Robert N. Weingarten Z Gallerie LLC Consulting Agreement with Robert Weingarten $0 Winning Bidder164 Robert Otto Z Gallerie LLC Severance Agreement $0 Winning Bidder165 SADA Systems, Inc Z Gallerie LLC G Suite Customer Agreement and Ordering Document $75,000 Winning Bidder166 SADA Systems, Inc Z Gallerie LLC Services Agreement Included above Winning Bidder167 salesforce.com, inc. Z Gallerie LLC Order Form - Quote #Q-00373916 $0 Winning Bidder168 Samanage USA, Inc. Z Gallerie LLC Subscription Services for ITAM Licenses $0 Winning Bidder169 SAMS International Z Gallerie LLC Vendor Agreement $1,487 Winning Bidder170 Select Staffing Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $74,663 Winning Bidder171 SeoMoz, Inc. Z Gallerie LLC Local Agreement for digital location management $0 Winning Bidder172 Sovos Compliance, LLC Z Gallerie LLC Order Form re Sovos Cloud Solution Licenses effective 12/31/2018 $104,280 Winning Bidder173 SPS Commerce Z Gallerie LLC Scope and Proposal for IT Services $0 Winning Bidder174 Summer Classics/ Private Label Z Gallerie LLC Vendor Agreement $13,032 Winning Bidder175 Summer Classics/ Private Label Z Gallerie LLC Vendor Agreement Included above Winning Bidder176 Syndicate 2623/623 at Lloyd's Z Gallerie LLC Insurance Policy - Tech, E&O, Policy $0 Winning Bidder177 Technology Management Concepts Z Gallerie LLC Consulting Agreement $0 Winning Bidder178 TeleCheck Services, Inc. Z Gallerie LLC Paper Warranty Services Agreement $0 Winning Bidder179 TeleCheck Services, Inc. Z Gallerie LLC Paper Warranty Services Agreement $0 Winning Bidder180 The CIT group/Commercial Services, Inc.

and/or CIT Bank, N.A.Z Gallerie LLC Letter of Credit ("LOC") $0 Winning Bidder

181 The Ultimate Software Group, Inc. Z Gallerie LLC Amendment to The Ultimate Software Group, Inc. UltiPro Agreement $5,755 Winning Bidder182 The Ultimate Software Group, Inc. Z Gallerie LLC The Ultimate Software Group, Inc. UltiPro Agreement Included above Winning Bidder183 The Ultimate Software Group, Inc. Z Gallerie LLC Ultipro Affordable Care Act Distribution Services Supplement to The Ultimate Software Group, Inc. UltiPro Agreement - Employees

healthcare benefits software subscription/support servicesIncluded above Winning Bidder

184 The Ultimate Software Group, Inc. Z Gallerie LLC Ultipro Benefits Prime Supplement to The Ultimate Software Group, Inc. UltiPro Agreement Included above Winning Bidder185 The Uttermost Co. Z Gallerie LLC Vendor Agreement $9,283 Winning Bidder186 TOV Furniture Z Gallerie LLC Vendor Agreement $32,165 Winning Bidder187 TrueBlue Enterprises, Inc. as Agent for Its

Subsidiaries and AffiliatesZ Gallerie LLC Agreement for Operation of Equipment $0 Winning Bidder

188 Vaco Los Angeles, LLC Z Gallerie LLC Client Services Agreement (Contract Hybrid) re Consulting Services $0 Winning Bidder189 Vector Security, Inc. Z Gallerie LLC Security Agreement $6,821 Winning Bidder190 VPLS Solutions, LLC Z Gallerie LLC Brocade Essential Direct Support Subscription Services $0 Winning Bidder191 VPLS Solutions, LLC Z Gallerie LLC Fortinet Router Solution Services $0 Winning Bidder192 Wells Fargo Insurance Z Gallerie LLC Broker Letter of Record $0 Winning Bidder193 Workfront Z Gallerie LLC Z Gallerie Sales Order with Workfront Pro Flex License $0 Winning Bidder194 X.Commerce, Inc. d/b/a Magento, Inc. Z Gallerie LLC Services Agreement $0 Winning Bidder195 XSI Technologies Z Gallerie LLC Proposal -Microsoft Dynamics GP2015 with Retail Bridge for APTOS $2,104 Winning Bidder196 Zones Inc Z Gallerie LLC Statement of Work Bank Card Replacement $0 Winning Bidder197 Google LLC Z Gallerie LLC Advertising Services Agreement $38,473 Winning Bidder198 Flexport International LLC Z Gallerie LLC Cerificate of Award for Customs Brokerage Services $0 Winning Bidder

$1,959,481 Total


No Counterparty Name State what the contract or lease is for and the nature of the debtor's interest

Cure Amount Assignee (if Applicable)

1 119 Leawood LLC - Town Center Crossing Lease re: Store #95 (Town Center Crossing), dated 7/2/2008 $4,839 Winning Bidder2 119th Street Development LLC - Town Center Crossing Lease re: Store #95 (Town Center Crossing), dated 7/2/2008 Included Above Winning Bidder3 119th Street Development LLC - Town Center Crossing Lease re: Store #95 (Town Center Crossing), dated 7/2/2008 Included Above Winning Bidder4 119th Street Development LLC - Town Center Crossing Lease re: Store #95 (Town Center Crossing), dated 7/2/2008 Included Above Winning Bidder5 168th and Dodge LP - The Mall in Columbia Business Trust Lease re: Store #70 (Mall in Columbia), dated 6/30/2017 $10,422 Winning Bidder6 223-1 DL Holdings - The Shops at Dos Lagos Lease re: Store #89 (Dos Lagos), dated 10/6/2006 $17,353 Winning Bidder7 4th Street Holdings, LLC Lease: re Store #21 and Buying Office (Berkeley) dated 10/1/1991 $28,202 Winning Bidder8 4th Street Holdings, LLC - Drew Properties Lease: re Store #21 and Buying Office (Berkeley) dated 10/1/1991 Included Above Winning Bidder9 AD Pembroke Land Co - The Shops At Pembroke Gardens Lease re: Store #96 (Pembroke Pines), dated 8/7/2008 $8,118 Winning Bidder10 AD Pembroke Land Co - The Shops At Pembroke Gardens Lease re: Store #96 (Pembroke Pines), dated 8/7/2008 Included Above Winning Bidder11 AD Pembroke Land Co - The Shops At Pembroke Gardens Lease re: Store #96 (Pembroke Pines), dated 8/7/2008 Included Above Winning Bidder12 AD Pembroke Land Co - The Shops At Pembroke Gardens Lease re: Store #96 (Pembroke Pines), dated 8/7/2008 Included Above Winning Bidder13 Berman Enterprises - Downtown at the Gardens Ltd Lease re: Store #83 (Downtown at the Gardens), dated 1/7/2006 $11,933 Winning Bidder14 Berman Enterprises - Downtown at the Gardens Ltd Lease re: Store #83 (Downtown at the Gardens), dated 1/7/2006 Included Above Winning Bidder15 Beverly Drive Enterprises - Beverly Drive Enterprises Lease re: Store #75 (Beverly Hills), dated 2/1/2005 $17,625 Winning Bidder16 BV Centercal, LLC Lease re: Store #76 (Bridgeport Village), dated 5/19/2005 $12,460 Winning Bidder17 BV Centercal, LLC Lease re: Store #76 (Bridgeport Village), dated 5/19/2005 Inluded Above Winning Bidder18 CBL & Associates - JG North Raleigh LLC Lease re: Store #55 (Triangle Town Center), dated 8/14/2002 $2,501 Winning Bidder19 City Centre Partners - Citycentre Two Partners LP Lease re: Store #20 (CityCentre), dated 9/12/2013 $9,546 Winning Bidder20 Clearfork Retail Venture Lease re: Store #17 (Shops at Clearfork), dated 9/14/2017 $11,072 Winning Bidder21 Clearfork Retail Venture Lease re: Store #17 (Shops at Clearfork), dated 9/14/2017 Included Above Winning Bidder22 Coventry II DDR/Trademark Montgomery Farm Lease re: Store #19 (Watters Creek), dated 6/1/2013 $3,117 Winning Bidder23 Coventry II DDR/Trademark Montgomery Farm Lease re: Store #19 (Watters Creek), dated 6/1/2013 Included Above Winning Bidder24 Coventry II DDR/Trademark Montgomery Farm - Watters Creek Owner, LLC Lease re: Store #19 (Watters Creek), dated 6/1/2013 Included Above Winning Bidder25 Encinitas Town Center Assoc. - Encinitas Town Center Associates I, LLC Lease re: Store #69 (Encinitas Ranch Town Center), dated 4/11/2015 $8,347 Winning Bidder26 Eskridge (E&A) LLC - Mosaic District Lease re: Store #24 (Mosaic District), dated 5/26/2017 $10,358 Winning Bidder27 Eskridge (E&A) LLC - Mosaic District Lease re: Store #24 (Mosaic District), dated 5/26/2017 Included Above Winning Bidder28 Forest City - Forest City Commercial Management Lease re: Store #10 (Village at Gulfstream Park), dated 2/3/2011 $11,638 Winning Bidder29 Forest City - Forest City Commercial Management Lease re: Store #10 (Village at Gulfstream Park), dated 2/3/2011 Included Above Winning Bidder30 Forest City - KeyBank National Association Lease re: Store #10 (Village at Gulfstream Park), dated 2/3/2011 Included Above Winning Bidder31 Forest City - KeyBank Real Estate Capital Lease re: Store #10 (Village at Gulfstream Park), dated 2/3/2011 Included Above Winning Bidder32 FRIT San Jose Town & Country - FRIT San Jose Town & Country LLC Lease re: Store #57 (Santana Row), dated 11/7/2002 $15,788 Winning Bidder33 General Growth Properties, Inc. - Crocker Downtown Development Associates Lease re: Store #64 (Mizner Park), dated 3/15/2003 $15,737 Winning Bidder34 General Growth Properties, Inc. - Crocker Downtown Development Associates Lease re: Store #64 (Mizner Park), dated 3/15/2003 Included Above Winning Bidder35 General Growth Properties, Inc. - Fashion Place Lease re: Store #32 (Fashion Place), dated 9/14/2012 $9,454 Winning Bidder36 General Growth Properties, Inc. - Fashion Place, LLC Lease re: Store #32 (Fashion Place), dated 9/14/2012 Included Above Winning Bidder37 General Growth Properties, Inc. - Fashion Show Mall LLC Lease re: Store #65 (Fashion Show), dated 4/12/2003 $15,896 Winning Bidder38 General Growth Properties, Inc. - Fashion Show Mall LLC Lease re: Store #65 (Fashion Show), dated 4/12/2003 Included Above Winning Bidder39 General Growth Properties, Inc. - General Growth Properties, Inc. Lease re: Store #46 (Perimeter Mall), dated 7/1/2011 $11,441 Winning Bidder40 General Growth Properties, Inc. - Hocker Oxmoor LLC Lease re: Store #87 (Oxmoor Center), dated 6/15/2006 $7,740 Winning Bidder

Plan Supplement-Unexpired LeasesZ Gallerie

Exhibit A(ii)Schedule of Assumed Executory Contracts and Unexpired Leases

Filed in the First Plan Supplement [Docket No. 309]


41 General Growth Properties, Inc. - Hocker Oxmoor LLC Lease re: Store #87 (Oxmoor Center), dated 6/15/2006 Included Above Winning Bidder42 General Growth Properties, Inc. - La Cantera Specialty Retail, LP Lease re: Store #11 (La Cantera), dated 8/10/2011 $7,782 Winning Bidder43 General Growth Properties, Inc. - Oakbrook Center Lease re: Store #40 (Oakbrook Center), dated 8/28/2014 $20,268 Winning Bidder44 General Growth Properties, Inc. - Oakbrook Shopping Center, LLC Lease re: Store #40 (Oakbrook Center), dated 8/28/2014 Included Above Winning Bidder45 General Growth Properties, Inc. - Perimeter Mall Lease re: Store #46 (Perimeter Mall), dated 7/1/2011 Included Above Winning Bidder46 General Growth Properties, Inc. - Perimeter Mall, LLC Lease re: Store #46 (Perimeter Mall), dated 7/1/2011 Included Above Winning Bidder47 General Growth Properties, Inc. - The Mall in Columbia Business Trust Lease re: Store #70 (Mall in Columbia), dated 6/30/2017 Included Above Winning Bidder48 General Growth Properties, Inc. - The Shops at La Cantera Phase II Lease re: Store #11 (La Cantera), dated 8/10/2011 Included Above Winning Bidder49 Genova Burns, LLC - Paramus Design Center Lease re: Store #91 (Paramus Design Center), dated 2/16/2018 $9,960 Winning Bidder50 George P. Johnson Company - Gardena Outlet Lease re: Store #12 (Gardena Outlet), dated 2/15/2009 Included Below Winning Bidder51 Highland Village LTD Partnership - Highland Village Holding, Inc. Lease re: Store #68 (Highland Village), dated 8/2/2003 $26,454 Winning Bidder52 Jones Lang LaSalle - Perkins Rowe Associates II Lease re: Store #93 (Perkins Rowe), dated 10/26/2007 $6,263 Winning Bidder53 Jones Lang LaSalle - Perkins Rowe Associates II Lease re: Store #93 (Perkins Rowe), dated 10/26/2007 Included Above Winning Bidder54 Jones Lang LaSalle - PPF RTL Atlantic Town Center LLC Lease re: Store #80 (Atlantic Station), dated 10/25/2005 $9,577 Winning Bidder55 Jones Lang LaSalle - PPF RTL Atlantic Town Center LLC Lease re: Store #80 (Atlantic Station), dated 10/25/2005 Included Above Winning Bidder56 Jones Lang LaSalle - PPF RTL Atlantic Town Center LLC Lease re: Store #80 (Atlantic Station), dated 10/25/2005 Included Above Winning Bidder57 Knox St Village Holdings - Knox St Village Holdings Lease re: Store #51 (Knox Street), dated 4/1/2001 $26,539 Winning Bidder58 Macerich - Macerich Arizona Partners LLC Lease re: Store #18 (Kierland Commons), dated 10/1/2000 $31,028 Winning Bidder59 Macerich - PHXAZ Limited Partnership Lease re: Store #18 (Kierland Commons), dated 10/1/2000 Included Above Winning Bidder60 Macerich - Scottsdale Fashion Square LLC Lease re: Store #16 (Scottsdale Fashion Square), dated 8/28/2010 $8,615 Winning Bidder61 Macerich - Scottsdale Fashion Square LLC Lease re: Store #16 (Scottsdale Fashion Square), dated 8/28/2010 Included Above Winning Bidder62 Mercato, LLP managed by Madison Marquette Lease re: Store #9 (The Mercato), dated 2/15/2009 $8,262 Winning Bidder63 Millenia Crossing Lease re: Store #60 (Millenia Crossing), dated 10/18/2002 $11,540 Winning Bidder64 Millenia Crossing Lease re: Store #60 (Millenia Crossing), dated 10/18/2002 Included Above Winning Bidder65 Millenia Crossing LLC Lease re: Store #60 (Millenia Crossing), dated 10/18/2002 Included Above Winning Bidder66 Old Town De Lacey LLC Lease re: Store #8 (De Lacey Ave Pasadena), dated 4/28/2016 $12,288 Winning Bidder67 Regency Galleria North Lease re: Store #42 (Dallas Galleria), dated 9/1/1999 $5,979 Winning Bidder68 Regency Galleria North Lease re: Store #42 (Dallas Galleria), dated 9/1/1999 Included Above Winning Bidder69 Regency Galleria North Lease re: Store #42 (Dallas Galleria), dated 9/1/1999 Included Above Winning Bidder70 Regency Galleria North Lease re: Store #42 (Dallas Galleria), dated 9/1/1999 Included Above Winning Bidder71 Second Paramus Associates - Paramus Design Center Lease re: Store #91 (Paramus Design Center), dated 2/16/2018 Included Above Winning Bidder72 Shops At St. Johns LLC - Shops at St. Johns Lease re: Store #22 (St Johns Town Center), dated 5/1/2018 $16,000 Winning Bidder73 Simon Property Group - Arboretum at Great Hills Lease re: Store #92 (Arboretum), dated 3/9/2012 $8,823 Winning Bidder74 Simon Property Group - Del Amo Fashion Center Operating Company LLC Lease re: Store #94 (Del Amo Fashion Center), dated 10/9/2015 $14,234 Winning Bidder75 Simon Property Group - North George Premium Outlets Lease re: Store #6 (Georgia Premium Outlets), dated 4/28/2018 $4,428 Winning Bidder76 Simon Property Group - Shops at Mission Viejo, LLC Lease re: Store #44 (Shops at Mission Viejo), dated 9/1/1999 $8,522 Winning Bidder77 Simon Property Group - Shops at Sunset, LLC Lease re: Store #36 (The Shops at Sunset Place), dated 1/1/1999 $9,117 Winning Bidder78 Simon Property Group - Woodfield Mall LLC Lease re: Store #30 (Woodfield Mall), dated 9/1/1995 $13,096 Winning Bidder79 Skyview Drive LLC Lease re: Atlanta Distribution Center $28,530 Winning Bidder80 SLTS Grand Avenue - SLTS Grand Avenue Lease re: Store #47 (Southlake Town Square), dated 4/22/2016 $6,893 Winning Bidder81 South Coast Plaza Lease re: Store #52 (South Coast Plaza), dated 5/5/2001 $20,785 Winning Bidder82 South Coast Plaza - South Coast Plaza Management Offices Lease re: Store #52 (South Coast Plaza), dated 5/5/2001 Included Above Winning Bidder83 Southglenn Property Holdings LLC Lease re: Store #31 (The Streets at South Glenn), dated 9/1/2013 $3,325 Winning Bidder84 Southglenn Property Holdings LLC Lease re: Store #31 (The Streets at South Glenn), dated 9/1/2013 Included Above Winning Bidder85 Steiner & Assoc - CBL & Associates Management Inc Lease re: Store #54 (Easton Gateway District), dated 8/1/2015 $8,732 Winning Bidder


86 Steiner & Assoc - G&I VII CBL TTC LLC Lease re: Store #54 (Easton Gateway District), dated 8/1/2015 Included Above Winning Bidder87 Taubman Centers, Inc. Lease re: Store #35 (University Town Center), dated 10/7/2014 $11,856 Winning Bidder88 Taubman Centers, Inc. Lease re: Store #38 (Cherry Creek), dated 12/1/1999 $14,519 Winning Bidder89 Taubman Centers, Inc. - Davis Street Land Company of Tennessee LLC Lease re: Store #82 (Green Hills), dated 10/28/2005 $5,323 Winning Bidder90 Taubman Centers, Inc. - Davis Street Land Company of Tennessee LLC Lease re: Store #82 (Green Hills), dated 10/28/2005 Included Above Winning Bidder91 Taubman Centers, Inc. - Tampa Westshore Associates Limited Partnership Lease re: Store #63 (International Plaza), dated 3/29/2003 $14,929 Winning Bidder92 Taubman Centers, Inc. - Willow Bend Shopping Center Limited Partnership Lease re: Store #29 (Shops at Willow Bend), dated 4/18/2012 $10,206 Winning Bidder93 Terreno 139th LLC - Paramus Design Center Lease re: Gardena Distribution Center and HQ $63,886 Winning Bidder94 Terreno 139th LLC - Paramus Design Center Lease re: Store #91 (Paramus Design Center), dated 2/16/2018 Included Above Winning Bidder95 The Irvine Company, LLC Lease re: Store #25 (Fashion Island), dated 11/1/1993 $14,923 Winning Bidder96 The Irvine Company, LLC Lease re: Store #25 (Fashion Island), dated 11/1/1993 Included Above Winning Bidder97 The Mall in Columbia Business Trust Lease re: Store #70 (Mall in Columbia), dated 6/30/2017 Included Above Winning Bidder98 The Mall in Columbia Business Trust Lease re: Store #70 (Mall in Columbia), dated 6/30/2017 Included Above Winning Bidder99 The Retail Property Trust Lease re: Store #72 (Roosevelt Field), dated 10/28/2016 $14,111 Winning Bidder100 The Retail Property Trust Lease re: Store #72 (Roosevelt Field), dated 10/28/2016 Included Above Winning Bidder101 The Roseville Fountains LP - The Fountains Lease re: Store #97 (The Fountains at Roseville), dated 6/27/2008 $7,861 Winning Bidder102 The Roseville Fountains LP - The Fountains Lease re: Store #97 (The Fountains at Roseville), dated 6/27/2008 Included Above Winning Bidder103 TM Market ST - TM Market Street LLC Lease re: Store #74 (Market St), dated 10/26/2002 $8,666 Winning Bidder104 TM Market ST - TM Market Street LLC Lease re: Store #74 (Market St), dated 10/26/2002 Included Above Winning Bidder105 Town Center Lakeside - Town Center Lakeside Ltd Lease re: Store #84 (Sugarland Town Square), dated 11/10/2005 $8,459 Winning Bidder106 Village Square Dana Park, LLC Lease re: Store #98 (Village Square at Dana Park), dated 8/16/2008 $7,184 Winning Bidder107 Village Square Dana Park, LLC Lease re: Store #98 (Village Square at Dana Park), dated 8/16/2008 Included Above Winning Bidder108 Village Square Dana Park, LLC Lease re: Store #98 (Village Square at Dana Park), dated 8/16/2008 Included Above Winning Bidder109 Village Square Dana Park, LLC Lease re: Store #98 (Village Square at Dana Park), dated 8/16/2008 Included Above Winning Bidder110 Village Square Dana Park, LLC Lease re: Store #98 (Village Square at Dana Park), dated 8/16/2008 Included Above Winning Bidder111 Washington Prime Group - Clay Terrace Partners, LLC Lease re: Store #73 (Clay Terrace), dated 10/15/2004 $7,863 Winning Bidder112 Westfield Corp. - Annapolis Mall Owner LLC Lease re: Store #79 (Annapolis Mall), dated 11/11/2016 $11,677 Winning Bidder113 Westfield Corp. - Sherman Oaks Fashion Associates LP Lease re: Store #45 (Fashion Square), dated 6/27/2014 $15,880 Winning Bidder114 Westfield Corp. - Village at Westfield Topanga Lease re: Store #34 (Village at Topanga), dated 9/1/1998 $11,247 Winning Bidder115 Westfield Corp. - West Valley Owner LLC Lease re: Store #34 (Village at Topanga), dated 9/1/1998 Included Above Winning BidderTotal $799,215




1 24 Seven Staffing LLC Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $0 Winning Bidder2 4Cite Marketing, LLC Z Gallerie LLC Master Service Agreement - Marketing Services $12,581 Winning Bidder3 80Twenty LLC Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $0 Winning Bidder4 A&G Realty Partners, LLC Z Gallerie LLC Real Estate Services Agreement $0 Winning Bidder5 A&G Realty Partners, LLC Z Gallerie LLC Real Estate Services Agreement $0 Winning Bidder6 Accurate Personnel, LLC Z Gallerie LLC Staffing Agreement $0 Winning Bidder7 ACE American Insurance Company (Chubb) Z Gallerie LLC Insurance Policy - General Liability, Employee Benefits Liability, Contingent Auto Liability $0

Winning Bidder8 Adobe Systems Inc. Z Gallerie LLC Adobe Sales Order DR1677518 $0 Winning Bidder9 Adobe Systems Inc. Z Gallerie LLC Adobe Sales Order DR2166008 $0 Winning Bidder10 Adobe Systems Inc. Z Gallerie LLC Adobe Sales Order DR 1043830 $0 Winning Bidder11 Advantage Human Resourcing, Inc. Z Gallerie LLC Temporary Staffing Agreement $0 Winning Bidder12 Aerotek, Inc. Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $0 Winning Bidder13 Aetna Life Insurance Company Z Gallerie LLC Aetna Group Insurance Policy $0 Winning Bidder14 Affirm, Inc. Z Gallerie LLC Merchant Agreement $0 Winning Bidder15 Alphapoint, Inc. Z Gallerie LLC Agreement for Retirement Plan Investment & Consulting Services dated 1/1/2016 $0 Winning Bidder16 American Express Travel Related Services Com Z Gallerie LLC CORPORATE SERVICES COMMERCIAL ACCOUNT AGREEMENT $0 Winning Bidder17 American Heritage Billiards, Inc. Z Gallerie LLC Vendor Agreement $21,919 Winning Bidder18 Anchor Computer Z Gallerie LLC Database Services Agreement $0 Winning Bidder19 Anchor Computer Z Gallerie LLC Licensing Agreement $0 Winning Bidder20 Social Annex, Inc.(dba Annex cloud) Z Gallerie LLC Service Agreement $12,600 Winning Bidder21 Aptos, Inc. Z Gallerie LLC Subscription Services Order Form & Software Support Addendum $456,256 Winning Bidder22 Aptos, Inc. Z Gallerie LLC Statement of Work Issued 9/21/2015 Included above Winning Bidder23 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Merch RBI Data Connectors Implementation Included above Winning Bidder24 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Customer Implementation Included above Winning Bidder25 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Implementation Included above Winning Bidder26 Aptos, Inc. Z Gallerie LLC Statement of Work - Work Schedule - Adoption Services Included above Winning Bidder27 Aptos, Inc. Z Gallerie LLC Data Transfer Form Included above Winning Bidder28 Aptos, Inc. Z Gallerie LLC Hardware Order Included above Winning Bidder29 Aptos, Inc. Z Gallerie LLC Hardware Order - HP MP9 Server Configuration - Labs - Quote #41916-1 dated 4/20/2016 Included above Winning Bidder30 Aptos, Inc. Z Gallerie LLC Hardware Order - RF Hardware Configuration - Quote #021517-4 dated 4/27/2017 Included above Winning Bidder31 Aptos, Inc. Z Gallerie LLC Amendment to Subscription Service Order Addendum Included above Winning Bidder32 Aptos, Inc. Z Gallerie LLC Master Agreement Included above Winning Bidder33 Aptos, Inc. Z Gallerie LLC Statement of Work Included above Winning Bidder34 AT&T Z Gallerie LLC Universal Extension - Amendment to AT&T Business Network Service Pricing Schedule or Service Agreement #20120207-0040 $25,207

Winning Bidder35 AT&T Z Gallerie LLC AT&T Managed Internet Service Pricing Schedule - Contract ID 8432644 Included above Winning Bidder36 AT&T Z Gallerie LLC Transfer of Service Agreement (143944UA) Included above Winning Bidder37 AT&T Z Gallerie LLC AT&T Business Local Calling ILEC Pricing Schedule - Contract ID 8850752 Included above Winning Bidder38 AT&T Z Gallerie LLC AT&T Business Local Calling ILEC Pricing Schedule - Contract ID 8850753 Included above Winning Bidder39 AT&T Z Gallerie LLC AT&T Hybrid Cloud Solutions Pricing Schedule - Contract ID 143944UA Included above Winning Bidder40 AT&T Z Gallerie LLC AT&T Hybrid Cloud Solutions Pricing Schedule - Contract ID 143944UA Included above Winning Bidder41 AT&T Z Gallerie LLC AT&T VPN Service Pricing Addendum for Access Channels - Contract ID 143944UA Included above Winning Bidder42 AT&T Z Gallerie LLC AT&T VPN Service Pricing Addendum for Access Channels - Contract ID 143944UA Included above Winning Bidder43 AT&T Z Gallerie LLC AT&T Network Based IP VPN Remote Access Pricing Schedule - Contract ID 143944UA Included above Winning Bidder44 AT&T Z Gallerie LLC AT&T Network Based IP VPN Remote Access Pricing Schedule - Contract ID 143944UA Included above Winning Bidder45 Atlas Employment Services, Inc Z Gallerie LLC Agreement for Staffing Services for Z Gallerie Inc. $0 Winning Bidder46 AudioEye, Inc. Z Gallerie LLC Mutual Non-Disclosure Agreement $12,634 Winning Bidder47 AudioEye, Inc. Z Gallerie LLC SAAS Subscription Agreement Included above Winning Bidder48 AudioEye, Inc. Z Gallerie LLC Renewal Subscription Included above Winning Bidder49 AudioEye, Inc. Z Gallerie LLC Statement of Work No.1 Included above Winning Bidder50 Aurico Reports, Inc. Z Gallerie LLC Regulatory Compliacne Agreement $0 Winning Bidder51 Automation Personnel Services, Inc. Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $0 Winning Bidder52 Avalara, Inc. Z Gallerie LLC Sales Order for Sales Tax Software - Purchase Order IT-01AVA-20160826 $0 Winning Bidder53 Avalara, Inc. Z Gallerie LLC Sales Order for Sales Tax Software - Renewal $0 Winning Bidder54 Avalara, Inc. Z Gallerie LLC Statement of Work Sales Audit Tax Content Consulting Project $0 Winning Bidder55 Avalara, Inc. Z Gallerie LLC Statement of Work $0 Winning Bidder56 Bank of America Merchant Services LLC Z Gallerie LLC Mutual Confidentialty Agreement Included below Winning Bidder






57 Bank Of America Z Gallerie LLC Equipment Agreement Included below Winning Bidder58 Bank of America Merchant Services LLC Z Gallerie LLC Amendment to Replacement Agreement Included below Winning Bidder59 Bank of America Merchant Services LLC Z Gallerie LLC Amendment to the Stored Value Card Processing Agreement Included below Winning Bidder60 Bank of America Merchant Services LLC Z Gallerie LLC Service Confirmation Agreement $9,581 Winning Bidder61 Bassett Mirror Co., Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder62 Belardi/Ostroy Z Gallerie LLC Consulting Agreement $52,846 Winning Bidder63 BOSS Logistics, LLC Z Gallerie LLC 3rd PARTY LOGISTICS DISTRIBUTION and FULFILLMENT SERVICES AGREEMENT dated 7/1/2018 $10,189 Winning Bidder64 Brentwood Associates Private Equity V, L.P. Z Gallerie LLC Letter of Credit ("LOC") $0

Winning Bidder65 Brentwood Private Equity V, LP Z Gallerie LLC Financing Agreement-Unsecured Notes $0 Winning Bidder66 Brink's US Z Gallerie LLC Services Agreement #10000097850 dated 1/27/2017 $2,215 Winning Bidder67 C.N.A Z Gallerie LLC Insurance Policy - Cargo Stock Throughput $0 Winning Bidder68 Cabrillo Advisors, Inc. Z Gallerie LLC Consulting Agreement $0 Winning Bidder69 California Physicians' Service dba Blue Shield

of CaliforniaZ Gallerie LLC Group Health Service Contract-Blue Shield of California PPO Plan $0

Winning Bidder70 California Physicians' Service dba Blue Shield

of CaliforniaZ Gallerie LLC Group Health Service Contract-Blue Shield of California Access+ HMO® Plan $0


of CaliforniaZ Gallerie LLC Group Health Service Contract-Blue Shield of California PPO Savings Plan $0


of CaliforniaZ Gallerie LLC Group Health Service Contract-Blue Shield of California Trio ACO HMO Plan $0

Winning Bidder73 California Umbrella Z Gallerie LLC Vendor Agreement $0 Winning Bidder74 Caltronics Business Systems Z Gallerie LLC Equipment Lease Agreement $24 Winning Bidder75 CareWorks Absence Management Z Gallerie LLC Leave administration, disability claim administration and integrated disability management services agreement $0 Winning Bidder76 CDM Search, LLC Z Gallerie LLC Recruiting Services Invoices $0 Winning Bidder77 CDW Corporation Z Gallerie LLC Licensing Subscription $4,653 Winning Bidder78 Century Group Professionals, LLC Z Gallerie LLC Settlement Agreement $0 Winning Bidder79 Chandra Rugs Z Gallerie LLC Vendor Agreement $0 Winning Bidder80 Citibank, N.A. Z Gallerie LLC Letter of Credit ("LOC") $0 Winning Bidder81 Classic Home Z Gallerie LLC Vendor Agreement $0 Winning Bidder82 Comenity Bank f/k/a World Financial Network Z Gallerie LLC Private Label Credit Card Program Agreement dated October 15, 2003 $0 Winning Bidder83 Comenity Bank f/k/a World Financial Network Z Gallerie LLC First Amendment to the Private Label Credit Card Program Agreement dated October 15, 2003 $0 Winning Bidder84 Comenity, LLC Z Gallerie LLC Point of Sale Test Account Set up $0 Winning Bidder85 Comenity, LLC Z Gallerie LLC Mutual Non-Disclosure Agreement $0 Winning Bidder86 Commonwealth Home Fashions Z Gallerie LLC Vendor Agreement $27,423 Winning Bidder87 Connexity, Inc. Z Gallerie LLC Merchant Program Agreement $40,454 Winning Bidder88 Container Marketing, Inc. (CMI) Z Gallerie LLC Vendor Agreement $0 Winning Bidder89 Corra Technology, Inc. Z Gallerie LLC Services Agreement $0 Winning Bidder90 Corra Technology, Inc. Z Gallerie LLC Master Service Agreement $0 Winning Bidder91 Corra Technology, Inc. Z Gallerie LLC Scope Change Order - Work Order #ZGAL.ECM.1802.1.4 $0 Winning Bidder92 Corra Technology, Inc. Z Gallerie LLC Scope Change Order - Work Order #ZGAL.ECM.1802.1.8 $0 Winning Bidder93 Corra Technology, Inc. Z Gallerie LLC Scope Change Order - Work Order #ZGAL.ECM.1802.1.9 $0 Winning Bidder94 Corra Technology, Inc. Z Gallerie LLC Scope Change Order - Work Order #ZGAL.ECM.1802.1.5 $0 Winning Bidder95 Crown Equipment Corporation Z Gallerie LLC Short Term Rental Agreement $28,864 Winning Bidder96 Crown Equipment Corporation d/b/a Crown

Lift Trucks - Long BeachZ Gallerie LLC Proposal-Equipment Rental Included above

Winning Bidder97 Crown Equipment Corporation d/b/a Crown

Lift Trucks - AtlantaZ Gallerie LLC Full Maintenance Service Agreement Included above

Winning Bidder98 Crown Equipment Corporation d/b/a Crown

Lift Trucks - Long BeachZ Gallerie LLC Full Maintenance Service Agreement Included above

Winning Bidder99 Curalate Inc. Z Gallerie LLC Master Service List and License Agreement $0 Winning Bidder100 Cybernetic Solutions, Inc. Z Gallerie LLC Consulting Agreement $28,287 Winning Bidder101 Dallimore & Co. Z Gallerie LLC Services Agreement $0 Winning Bidder102 Discovery Benefits, Inc. Z Gallerie LLC Administrative Services Agreement $0 Winning Bidder103 Downtown Company Luxury Bedding, Inc. Z Gallerie LLC Vendor Agreement $938 Winning Bidder104 Ecova, Inc. Z Gallerie LLC Services Agreement $0 Winning Bidder105 EFT Media Productions LLC d/b/a Evolution

MediaZ Gallerie LLC Location Contract for Filming Vanderpump Rules $0

Winning Bidder





106 Emtrain Z Gallerie LLC Add-On Order Form re License Agreement $0 Winning Bidder107 ENGIE Insight Services, Inc., f/k/a Ecova, Inc. Z Gallerie LLC Change of Name Agreement for a Services Agreement $39,853

Winning Bidder108 ENGIE Insight Services, Inc., f/k/a Ecova, Inc. Z Gallerie LLC Change Authorization/Amendment to a Total Energy and Sustainabiity Services Agreement (not signed by counterparty) Included above

Winning Bidder109 Equest Corp. Z Gallerie LLC Maintenance Renewal $0 Winning Bidder110 Euro Style, Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder111 Facilitysource, LLC Z Gallerie LLC Facilities Maintenance Services Agreement $267,115 Winning Bidder112 Federal Insurance Company (Chubb) Z Gallerie LLC Insurance Policy - Crime & Fiduciary $0 Winning Bidder113 FedEx Corporate Services, Inc. Z Gallerie LLC Fedex Technology Incentive Program Agreement $876,283 Winning Bidder114 FedEx Corporate Services, Inc. Z Gallerie LLC Pricing Agreement Included above Winning Bidder115 Fireman's Fund Insurance Company (Allianz

SE)Z Gallerie LLC Insurance Policy - Property, Auto, Inland Marine, $0

Winning Bidder116 First Data Services, LLC, as asignee of IPS Card

Solutions, d/b/a ValueLinkZ Gallerie LLC Services Agreement $0

Winning Bidder117 Gasthalter & Co. LP Z Gallerie LLC Engagement Letter re Retention of Communications Consultant $0 Winning Bidder118 Gift Solutions LLC Z Gallerie LLC Services Agreement $0 Winning Bidder119 Goudarzi Z Gallerie LLC Agreement for Unarmed Protective Services $1,993 Winning Bidder120 Granite Telecommunications LLC Z Gallerie LLC AT&T Virtual Private Network Service Commercial Interconnect Authorization and Addendum to Pricing Schedule $31,760 Winning Bidder121 Granite Telecommunications LLC Z Gallerie LLC Commerical Account Form and Letter of Agency Included above Winning Bidder122 Great American Insurance Company of New

YorkZ Gallerie LLC Insurance Policy - Umbrella $0

Winning Bidder123 Great West Trust Company, LLC Z Gallerie LLC Trust Agreement $0 Winning Bidder124 Home Meridian Intl.,Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder125 HR Personnel Services Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $0 Winning Bidder126 iCIMS, Inc. Z Gallerie LLC Renewal Order Form $0 Winning Bidder127 International Color Services Z Gallerie LLC Agreement for Services re Graphics and Printing $57,508 Winning Bidder128 Invesp Z Gallerie LLC CRO Service Agreement $0 Winning Bidder129 IPS Card Solutions, Inc. Z Gallerie LLC Stored Value Card Processing Agreement $0 Winning Bidder130 IPS Card Solutions, Inc. d/b/a Valuelink Z Gallerie LLC Stored Value Card Processing Agreement $0 Winning Bidder131 Iron Mountain Secure Shredding, Inc. Z Gallerie LLC Secure Shredding Services Agreement effective 9/22/2015 $1,577 Winning Bidder132 Jaipur Rugs,Inc.Norcross, GA(dba Jaipur Rugs) Z Gallerie LLC Vendor Agreement $3,025

Winning Bidder133 JDA Software Inc Z Gallerie LLC Schedule 2-A Amended Maintenance Schedule $77,414 Winning Bidder134 Jenna Couture Z Gallerie LLC Settlement Agreement $0 Winning Bidder135 Jules & Associates Z Gallerie LLC Master Equipment Lease No. 200772418, Schedule No. 1 $0 Winning Bidder136 KeyBank National Association Z Gallerie LLC Letter of Credit Reimbursement and Security Agreement (Standby Letter of Credit for benefit of Hanover Insurance Company) $0 Winning Bidder137 KeyBank National Association Z Gallerie LLC Letter of Credit Reimbursement and Security Agreement (Standby Letter of Credit for benefit of Hartford Fire Insurance Company) $0 Winning Bidder138 KHL Engineered Packaging Solutions Z Gallerie LLC Equipment Rental Agreement dated 4/28/2008 $0 Winning Bidder139 Klehr Harrison Harvey Branzburg LLP Z Gallerie LLC Engagement Letter re Retention of Klehr Harrison as Conflicts Counsel $0 Winning Bidder140 Kount, Inc. Z Gallerie LLC Kount Services Agreement and Amendments $3,405 Winning Bidder141 Landsberg Orora Z Gallerie LLC Equipment Rental Agreement $179,388 Winning Bidder142 LANtelligence Z Gallerie LLC Shoretel Licenses - Quote #MT-005750 $0 Winning Bidder143 LANtelligence Z Gallerie LLC 2016-2017 ShoreTel Partner Support Renewal - Quote # MT-007122 $0 Winning Bidder144 LANtelligence Z Gallerie LLC Shoretel Licenses - Quote # MT-007378 $0 Winning Bidder145 LANtelligence Z Gallerie LLC 2017-2018 ShoreTel Partner Support - Quote # LP009000 $0 Winning Bidder146 LANtelligence Z Gallerie LLC 2018-2019 Partner Support - Quote # LP1000075 $0 Winning Bidder147 LinkedIn Z Gallerie LLC LinkedIn Subscription Agreement $0 Winning Bidder148 Listrak, Inc. Z Gallerie LLC Services Agreement $96,320 Winning Bidder149 Lloyd's of London/Euclid Executive Z Gallerie LLC Insurance Policy - D&O $0 Winning Bidder150 Lloyd's of London/Euclid Executive Z Gallerie LLC Insurance Policy - Excess D&O $0 Winning Bidder151 Magento, Inc. Z Gallerie LLC Services Agreement $0 Winning Bidder152 Magento, Inc. Z Gallerie LLC License Agreement - Order Form #0061500000WB10WAAT $0 Winning Bidder153 Magento, Inc. Z Gallerie LLC License Agreement - Order Form #0061C00000WQkaqQAD $0 Winning Bidder154 Manning Consulting Group, Inc. Z Gallerie LLC Transportation Management Solutions Agreement $103,626 Winning Bidder155 Manning Consulting Group, Inc. Z Gallerie LLC Transportation Management Solutions Agreement re software and support services Included above Winning Bidder156 M.C. Dean, Inc. Z Gallerie LLC Annual Maintenance Contract $0 Winning Bidder157 Meltwater News US Inc Z Gallerie LLC Agreement for "Social Influencers/Engage Professionals" $22,000 Winning Bidder





158 Metropolitan Life Insurance Company Z Gallerie LLC Group Long Term Disability Insurance Policy $0 Winning Bidder159 Metropolitan Telecommunications a/k/a

MetTelZ Gallerie LLC Agreement for Voice, Advanced Voice, Data & IP Services $43,882

Winning Bidder160 Microexcel Inc. Z Gallerie LLC SOW - Aptos CRM Feeds $129,832 Winning Bidder161 Microexcel Inc. Z Gallerie LLC SOW - BOPS Phase II Enhancements Included above Winning Bidder162 Microexcel Inc. Z Gallerie LLC SOW - Open Orders Export Using Shopvisible API Included above Winning Bidder163 Microexcel Inc. Z Gallerie LLC SOW - Order Tracking II ETA Message Included above Winning Bidder164 Microexcel Inc. Z Gallerie LLC SOW - Taxware Enhancements Included above Winning Bidder165 Microexcel Inc. Z Gallerie LLC SOW - Web Customer Export Vi API Included above Winning Bidder166 Microexcel Inc. Z Gallerie LLC SOW - Annex Cloud Ratings Reviews API Integration Included above Winning Bidder167 Microexcel Inc. Z Gallerie LLC SOW - Buy Online Pickup Phase 1 Included above Winning Bidder168 Microexcel Inc. Z Gallerie LLC SOW - Kount Integration on Website Included above Winning Bidder169 Microexcel Inc. Z Gallerie LLC SOW - Custom Furniture/Product Variation Improvement Included above Winning Bidder170 Microexcel Inc. Z Gallerie LLC SOW - Coupon Module Enhancements Included above Winning Bidder171 Microexcel Inc. Z Gallerie LLC SOW - BOPS Portal Included above Winning Bidder172 Microexcel Inc. Z Gallerie LLC SOW - A+ Page Development Included above Winning Bidder173 Microexcel Inc. Z Gallerie LLC SOW - Aptos CRM API Integration Included above Winning Bidder174 Microexcel Inc. Z Gallerie LLC SOW - Avalara Tax Engine Integration Included above Winning Bidder175 Microexcel Inc. Z Gallerie LLC SOW - Internal Application Included above Winning Bidder176 Microexcel Inc. Z Gallerie LLC SOW - Load Testing Website Included above Winning Bidder177 Microexcel Inc. Z Gallerie LLC SOW - Payeezy Integration Included above Winning Bidder178 Microexcel Inc. Z Gallerie LLC SOW - Annex Cloud Ratings Reviews API Integration Included above Winning Bidder179 Microexcel Inc. Z Gallerie LLC SOW - BOPS Portal Customer Service Included above Winning Bidder180 Microexcel Inc. Z Gallerie LLC SOW - Custom SKU Search Included above Winning Bidder181 Microexcel Inc. Z Gallerie LLC Audioeye Accessibility Compliance Enhancements Included above Winning Bidder182 Mission Cloud Services Z Gallerie LLC Change Order Request re: Proxy Setup $968 Winning Bidder183 Modus Furniture International Z Gallerie LLC Vendor Agreement $10,612 Winning Bidder184 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20190101 $0 Winning Bidder185 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20170427 $0 Winning Bidder186 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20180220 $0 Winning Bidder187 Moovweb Z Gallerie LLC Order Form Full Service - Order Form #ZGallerie20160419 $0 Winning Bidder188 Moovweb Z Gallerie LLC Master Service Agreement $0 Winning Bidder189 Moovweb Z Gallerie LLC Order Form for online services $0 Winning Bidder190 Moovweb Z Gallerie LLC Order Form for online services $0 Winning Bidder191 MVP Systems Software, Inc. Z Gallerie LLC JAMS Software Maintenance Subscription $0 Winning Bidder192 Oliver Gal. Inc. Z Gallerie LLC Vendor Agreement $0 Winning Bidder193 Onica Group LLC Z Gallerie LLC Cloud Optimizer Terms and Conditions $37,050 Winning Bidder194 Oracle America Inc Z Gallerie LLC Executable Quote re Endeca $44,268 Winning Bidder195 Oracle America Inc Z Gallerie LLC Purchase Order #IT-01ENDECA-180119-1 Included above Winning Bidder196 Oracle America Inc Z Gallerie LLC Purchase Order #IT-01ORACLE-20160105-1 Included above Winning Bidder197 Oracle America Inc Z Gallerie LLC Purchase Order #IT-01ORACLE-20160105-2 Included above Winning Bidder198 Oracle Premier Support Renewal Center Z Gallerie LLC Technical Support Services Renewal Order - Support Service #6243176 Included above Winning Bidder199 Oriental Weavers Z Gallerie LLC Vendor Agreement $307 Winning Bidder200 Park Place Technologies Z Gallerie LLC Pricing Schedule $0 Winning Bidder201 PlayNetwork, Inc. Z Gallerie LLC Amendment to Master Services Agreement $10,094 Winning Bidder202 Print Strategy Inc Z Gallerie LLC Quote for Printing and Mailing Proposal for Paper products (executed by both parties) $28,395 Winning Bidder203 RR Donnelly & Sons Company Z Gallerie LLC Agreement $64,126 Winning Bidder204 R Squared Marketing Inc. Z Gallerie LLC Master Service Agreement with R2 Marketing $0 Winning Bidder205 Reliastar Insurance Company (VOYA) Z Gallerie LLC Critical Illness Insurance Plan $3,641 Winning Bidder206 RetailNext, Inc. Z Gallerie LLC Purchase Agreement $69,411 Winning Bidder207 RetailNext, Inc. Z Gallerie LLC Master Purchse Agreement 01 Included above Winning Bidder208 RetailNext, Inc. Z Gallerie LLC Amendment to Master Service Agreement 01 Included above Winning Bidder209 Rizzy Home, aGeorgiacorporation (dba Rizzy) Z Gallerie LLC Vendor Agreement $3,126

Winning Bidder210 Robert N. Weingarten Z Gallerie LLC Consulting Agreement with Robert Weingarten $0 Winning Bidder211 Robert Otto Z Gallerie LLC Severance Agreement $0 Winning Bidder212 SADA Systems, Inc Z Gallerie LLC G Suite Customer Agreement and Ordering Document $75,000 Winning Bidder213 SADA Systems, Inc Z Gallerie LLC Services Agreement Included above Winning Bidder





214 salesforce.com, inc. Z Gallerie LLC Order Form - Quote #Q-00373916 $0 Winning Bidder215 Samanage USA, Inc. Z Gallerie LLC Subscription Services for ITAM Licenses $0 Winning Bidder216 SAMS International Z Gallerie LLC Vendor Agreement $1,487 Winning Bidder217 Select Staffing Z Gallerie LLC Agreement for Staffing Services for Z Gallerie, LLC $74,663 Winning Bidder218 SeoMoz, Inc. Z Gallerie LLC Local Agreement for digital location management $0 Winning Bidder219 Sompo America Insurance Company Z Gallerie LLC Insurance Policy - Workers Compensation (AOS) $55,000 Winning Bidder220 Sompo America Insurance Company Z Gallerie LLC Insurance Policy - Workers Compensation (WI) Included above Winning Bidder221 Sovos Compliance, LLC Z Gallerie LLC Order Form re Sovos Cloud Solution Licenses effective 12/31/2018 $104,280 Winning Bidder222 SPS Commerce Z Gallerie LLC Scope and Proposal for IT Services $0 Winning Bidder223 Summer Classics/ Private Label Z Gallerie LLC Vendor Agreement $13,032 Winning Bidder224 Summer Classics/ Private Label Z Gallerie LLC Vendor Agreement Included above Winning Bidder225 Syndicate 2623/623 at Lloyd's Z Gallerie LLC Insurance Policy - Tech, E&O, Policy $0 Winning Bidder226 Taxware, LLC Z Gallerie LLC Taxware Master License and Services Agreement $0 Winning Bidder227 Technology Management Concepts Z Gallerie LLC Consulting Agreement $0 Winning Bidder228 TeleCheck Services, Inc. Z Gallerie LLC Paper Warranty Services Agreement $0 Winning Bidder229 TeleCheck Services, Inc. Z Gallerie LLC Paper Warranty Services Agreement $0 Winning Bidder230 The CIT group/Commercial Services, Inc.

and/or CIT Bank, N.A.Z Gallerie LLC Letter of Credit ("LOC") $0

Winning Bidder231 The Ultimate Software Group, Inc. Z Gallerie LLC Amendment to The Ultimate Software Group, Inc. UltiPro Agreement $5,755 Winning Bidder232 The Ultimate Software Group, Inc. Z Gallerie LLC The Ultimate Software Group, Inc. UltiPro Agreement Included above Winning Bidder233 The Ultimate Software Group, Inc. Z Gallerie LLC Ultipro Affordable Care Act Distribution Services Supplement to The Ultimate Software Group, Inc. UltiPro Agreement - Employees

healthcare benefits software subscription/support servicesIncluded above

Winning Bidder234 The Ultimate Software Group, Inc. Z Gallerie LLC Ultipro Benefits Prime Supplement to The Ultimate Software Group, Inc. UltiPro Agreement Included above Winning Bidder235 The Uttermost Co. Z Gallerie LLC Vendor Agreement $9,283 Winning Bidder236 Threat Management and Protection, Inc. Z Gallerie LLC Agreement for Investigative and Security Services $0 Winning Bidder237 Threat Management and Protection, Inc. Z Gallerie LLC Agreement for Investigative and Security Services $0 Winning Bidder238 TOV Furniture Z Gallerie LLC Vendor Agreement $32,165 Winning Bidder239 TrueBlue Enterprises, Inc. as Agent for Its

Subsidiaries and AffiliatesZ Gallerie LLC Agreement for Operation of Equipment $0

Winning Bidder240 Tuscany 3PL Z Gallerie LLC Home Delivery Vendor Agreement (effective August 03, 2018) $520,492 Winning Bidder241 Unbounce Marketing Solutions, Inc. Z Gallerie LLC Subscription Services $0 Winning Bidder242 Vaco Los Angeles, LLC Z Gallerie LLC Client Services Agreement (Contract Hybrid) re Consulting Services $0 Winning Bidder243 Vector Security, Inc. Z Gallerie LLC Security Agreement $6,821 Winning Bidder244 Vision Service Plan Z Gallerie LLC Group Vision Care Plan $0 Winning Bidder245 VPLS Solutions, LLC Z Gallerie LLC Brocade Essential Direct Support Subscription Services $0 Winning Bidder246 VPLS Solutions, LLC Z Gallerie LLC Fortinet Router Solution Services $0 Winning Bidder247 Wells Fargo Insurance Z Gallerie LLC Broker Letter of Record $0 Winning Bidder248 Workfront Z Gallerie LLC Z Gallerie Sales Order with Workfront Pro Flex License $0 Winning Bidder249 Wpromote, Inc. Z Gallerie LLC Feed Management Services Agreement $782,632 Winning Bidder250 Wpromote, Inc. Z Gallerie LLC Search Engine Marketing Services Agreement Included above Winning Bidder251 X.Commerce, Inc. d/b/a Magento, Inc. Z Gallerie LLC Services Agreement $0 Winning Bidder252 XSI Technologies Z Gallerie LLC Proposal -Microsoft Dynamics GP2015 with Retail Bridge for APTOS $2,104 Winning Bidder253 yRuler Inc. Z Gallerie LLC Master Service Agreement for on-line non-downloadable cloud computing software $10,000 Winning Bidder254 yRuler Inc. Z Gallerie LLC Statement of Work for access to yRuler Inc. "Tangiblee Platform" Included above Winning Bidder255 Zones Inc Z Gallerie LLC Statement of Work Bank Card Replacement $0 Winning Bidder256 Google LLC Z Gallerie LLC Advertising Services Agreement $38,473 Winning Bidder257 Flexport International LLC Z Gallerie LLC Cerificate of Award for Customs Brokerage Services $0 Winning Bidder

$4,684,834 Total


Exhibit B

Schedule of Rejected Executory Contracts and Unexpired Leases

Pursuant to Article V of the Plan, on the Effective Date, except as otherwise provided herein, each Executory Contract or Unexpired Lease, not previously assumed, assumed and assigned, or rejected shall be deemed automatically rejected, pursuant to sections 365 and 1123 of the Bankruptcy Code, unless such Executory Contract or Unexpired Lease: (1) is identified on the Schedule of Assumed Executory Contracts and Unexpired Leases; (2) is the subject of a motion to assume such Executory Contracts or Unexpired Leases that is pending on the Confirmation Date; (3) is a contract, release, or other agreement or document entered into in connection with the Plan; or (4) is an insurance policy.


Tot l

27 Washington Prime Group ‐ Clay Terrace Partners, LLC Lease re: Store #73 (Clay Terrace), dated 10/15/2004

28 Westfield Corp. ‐ Annapolis Mall Owner LLC Lease re: Store #79 (Annapolis Mall), dated 11/11/2016

26 Town Center Lakeside ‐ Town Center Lakeside Ltd Lease re: Store #84 (Sugarland Town Square), dated 11/10/2005

25 TM Market ST ‐ TM Market Street LLC Lease re: Store #74 (Market St), dated 10/26/2002

24 The Irvine Company, LLC Lease re: Store #25 (Fashion Island), dated 11/1/1993

23 Taubman Centers, Inc. ‐ Davis Street Land Company of Tennessee LLC Lease re: Store #82 (Green Hills), dated 10/28/2005

22 Steiner & Assoc ‐ CBL & Associates Management Inc Lease re: Store #54 (Easton Gateway District), dated 8/1/2015

21 Skyview Drive LLC Lease re: Atlanta Distribution Center

19 Simon Property Group ‐ Shops at Sunset, LLC Lease re: Store #36 (The Shops at Sunset Place), dated 1/1/1999

20 Simon Property Group ‐ Woodfield Mall LLC Lease re: Store #30 (Woodfield Mall), dated 9/1/1995

18 Simon Property Group ‐ North George Premium Outlets Lease re: Store #6 (Georgia Premium Outlets), dated 4/28/2018

16 Simon Property Group ‐ Arboretum at Great Hills Lease re: Store #92 (Arboretum), dated 3/9/2012

17 Simon Property Group ‐ Del Amo Fashion Center Operating Company LLC Lease re: Store #94 (Del Amo Fashion Center), dated 10/9/2015

15 Shops At St. Johns LLC ‐ Shops at St. Johns Lease re: Store #22 (St Johns Town Center), dated 5/1/2018

14 Regency Galleria North Lease re: Store #42 (Dallas Galleria), dated 9/1/1999

13 Old Town De Lacey LLC Lease re: Store #8 (De Lacey Ave Pasadena), dated 4/28/2016

12 Macerich ‐ Macerich Arizona Partners LLC Lease re: Store #18 (Kierland Commons), dated 10/1/2000

10 Highland Village LTD Partnership ‐ Highland Village Holding, Inc. Lease re: Store #68 (Highland Village), dated 8/2/2003

11 Jones Lang LaSalle ‐ Perkins Rowe Associates II Lease re: Store #93 (Perkins Rowe), dated 10/26/2007

9 George P. Johnson Company ‐ Gardena Outlet Lease re: Store #12 (Gardena Outlet), dated 2/15/2009

8 General Growth Properties, Inc. ‐ Oakbrook Center Lease re: Store #40 (Oakbrook Center), dated 8/28/2014

7 Encinitas Town Center Assoc. ‐ Encinitas Town Center Associates I, LLC Lease re: Store #69 (Encinitas Ranch Town Center), dated 4/11/2015

6 Coventry II DDR/Trademark Montgomery Farm Lease re: Store #19 (Watters Creek), dated 6/1/2013

5 Clearfork Retail Venture Lease re: Store #17 (Shops at Clearfork), dated 9/14/2017

4 CBL & Associates ‐ JG North Raleigh LLC Lease re: Store #55 (Triangle Town Center), dated 8/14/2002

2 Beverly Drive Enterprises ‐ Beverly Drive Enterprises Lease re: Store #75 (Beverly Hills), dated 2/1/2005

3 BV Centercal, LLC Lease re: Store #76 (Bridgeport Village), dated 5/19/2005

1 119 Leawood LLC ‐ Town Center Crossing Lease re: Store #95 (Town Center Crossing), dated 7/2/2008

Z Gallerie



interest

Exhibit BSchedule of Rejected Executory Contracts and Unexpired Leases


Exhibit C

Schedule of Retained Causes of Action

[Previously Filed]


Exhibit D

Form of Asset Purchase Agreement

[Previously Filed]


Exhibit E

Form of Wind-Down Trust Agreement

On the Effective Date, immediately after the consummation of the Sale Transaction the Wind-Down Trust will be formed pursuant to the New Organizational Documents, including the Wind-Down Trust Agreement, the form of which is contained herein, to receive all of the assets of the Post-Effective Date Debtors. Upon the transfer of the Wind-Down Trust Assets as more fully set forth in the Wind-Down Trust Agreement, the Debtors or Post-Effective Date Debtors will have no reversionary or further interest in or with respect to the Wind-Down Trust Assets.


WIND-DOWN TRUST AGREEMENT

This Wind-Down Trust Agreement (the “Agreement”) is made this 13th day of June, 2019 by and among Z Gallerie, LLC and Z Gallerie Holding Company, LLC (each a “Debtor” and collectively, the “Debtors”), and Robert Otto (the “Wind-Down Trustee”). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Plan (as defined below).

RECITALS

WHEREAS, on March 11, 2019, each of the Debtors filed a voluntary Chapter 11 petition with the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); and

WHEREAS, on [●], 2019, the Bankruptcy Court entered an order [Docket No. ●] (the “Confirmation Order”) confirming the First Amended Joint Chapter 11 Plan of Z Gallerie, LLC and Z Gallerie Holding Company, LLC (the “Plan”);1 and

WHEREAS, the Plan contemplates, on the Effective Date, (a) the creation of a wind-down trust (the “Wind-Down Trust”) and the creation of the beneficial interests in the Liquidating Trust of certain parties identified herein and in accordance with the Plan (collectively, the “Beneficiaries”), and (b) that the Wind-Down Trust will be vested with the Wind-Down Trust Assets, to be liquidated and distributed to the Beneficiaries, as set forth herein and in accordance with the Plan; and

WHEREAS, the Plan contemplates that, pursuant to Treasury Regulation Section 301.7701-4(d), the Wind-Down Trust shall be created for the primary purpose of liquidating the Wind-Down Trust Assets and winding down the Debtors’ Estates in an expeditious but orderly manner for the benefit of the Beneficiaries, with no objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to and consistent with the liquidating purpose of the Wind-Down Trust and the Plan; and

WHEREAS, the Wind-Down Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes, pursuant to Sections 671-677 of the Internal Revenue Code of 1986, as amended (the “IRC”), with the Beneficiaries to be treated as the grantors of the Wind-Down Trust and deemed to be the owners of the Wind-Down Trust Assets, and, consequently, the transfer of the Wind-Down Trust Assets to the Wind-Down Trust shall be treated as a deemed transfer of those assets from the Debtors and the Estates to the Beneficiaries (to the extent of the value of their respective interests in such assets) followed by a deemed transfer by such Beneficiaries (to the extent of the value of their respective interests in such assets) to the Wind-Down Trust for federal income tax purposes.

NOW, THEREFORE, pursuant to the Plan and the Confirmation Order, in consideration of the mutual agreements of the parties contained herein, and for other good and valuable

1 Unless otherwise noted, capitalized terms used herein but not defined have the meanings given to them

elsewhere in this Agreement, the Plan, or the Confirmation Order, as applicable.


consideration, the receipt and sufficiency of which are hereby acknowledged and affirmed, the parties hereby agree as follows:

ARTICLE I DECLARATION OF TRUST

1.1 Creation and Purpose of the Wind-Down Trust. The Debtors and the Wind-Down Trustee hereby create the Wind-Down Trust for the primary purpose of liquidating and distributing the Wind-Down Trust Assets and winding down the Debtors’ Estates to the Beneficiaries in accordance with their respective entitlements under the Plan, the Confirmation Order, and applicable tax statutes, rules, and regulations, and in an expeditious but orderly manner, with no objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to and consistent with the liquidating purpose of the Wind-Down Trust and the Plan. In particular, the Wind-Down Trustee shall (a) make continuing efforts to collect and convert the Wind-Down Trust Assets to Cash, and (b) make timely distributions and not unduly prolong the duration of the Wind-Down Trust.

1.2 Declaration of Trust. In order to declare the terms and conditions hereof, and in consideration of the confirmation of the Plan, the Debtors and the Wind-Down Trustee have executed this Agreement and, effective on the Effective Date, the Debtors hereby irrevocably transfer to the Wind-Down Trust, all of the right, title, and interests of the Debtors in and to the Wind-Down Trust Assets, to have and to hold unto the Wind-Down Trust and its successors and assigns forever, under and subject to the terms of the Plan and the Confirmation Order, for the benefit of the Beneficiaries (to the extent of their respective legal entitlements) and their successors and assigns as provided for in this Agreement and in the Plan and Confirmation Order.

1.3 Vesting of Wind-Down Trust Assets. On the Effective Date, pursuant to the terms of the Plan, all Wind-Down Trust Assets shall be vested in the Wind-Down Trust, which also shall be authorized to obtain, liquidate, and collect all of the Wind-Down Trust Assets not in its possession. Subject to the provisions of the Plan, all Wind-Down Trust Assets shall be delivered to the Wind-Down Trust free and clear of Liens, Claims, and Interests of any kind.

1.4 Funding of the Trust. The Wind-Down Trust shall be funded, on the Effective Date, with the Wind-Down Trust Assets, as provided for in the Plan and in the Confirmation Order.

1.5 Acceptance by Wind-Down Trustee. The Wind-Down Trustee hereby accepts the trust imposed on it by this Agreement and agrees to observe and perform that trust on and subject to the terms and conditions set forth in this Agreement, the Plan, and the Confirmation Order. In connection with and in furtherance of the purposes of the Wind-Down Trust, the Wind-Down Trustee hereby accepts the transfer of the Wind-Down Trust Assets.

1.6 Name of the Wind-Down Trust. The Wind-Down Trust established hereby shall be known as the “Z Gallerie Wind-Down Trust.”


ARTICLE II THE WIND-DOWN TRUSTEE

2.1 Appointment. The Wind-Down Trustee has been selected pursuant to the provisions of the Plan and has been appointed as of the Effective Date. The Wind-Down Trustee’s appointment shall continue until the earlier of (a) the termination of the Wind-Down Trust or (b) the Wind-Down Trustee’s resignation, death, disability, dissolution, or removal. To effectuate an orderly and efficient transition of the administration of the Wind-Down Trust Assets from the Debtors to the Wind-Down Trustee, the Wind-Down Trustee may perform certain services in connection with its duties and obligations under this Agreement prior to the Effective Date.

2.2 General Powers. The Wind-Down Trustee shall have all duties, obligations, rights, and benefits assumed by, assigned to, or vested in the Wind-Down Trust or the Post-Effective Date Debtors under the Plan, the Confirmation Order, this Agreement, and any other agreement entered into pursuant to or in connection with the Plan. For the avoidance of doubt, the Wind-Down Trustee’s exercise of all of the powers, duties, obligations, rights, and benefits of the Wind-Down Trustee vested herein shall be subject in all respects to (i) the availability of and reasonable likelihood of recovery of Wind-Down Trust Assets (ii) consultation and coordination with the Plan Administrator, and (iii) consideration of the extent of any reasonable benefit to be realized by the holders of outstanding obligations related to Store Closings in light of the nature of the Wind-Down Trust Assets and terms of the Plan. Except as otherwise provided in this Agreement, the Plan, or the Confirmation Order, the Wind-Down Trustee may control and exercise authority over the Wind-Down Trust Assets, over the acquisition, management, and disposition thereof, and over the management and conduct of the business of the Wind-Down Trust. No person dealing with the Wind-Down Trust shall be obligated to inquire into the Wind-Down Trustee’s authority in connection with the acquisition, management, or disposition of Wind-Down Trust Assets. Without limiting the generality of the foregoing, but subject to the Plan, the Confirmation Order, and other provisions of this Agreement, the Wind-Down Trustee shall be expressly authorized to, with respect to the Wind-Down Trust and the Wind-Down Trust Assets:

(a) Exercise all power and authority that may be or could have been exercised, commence all proceedings that may be or could have been commenced, and take all actions that may be or could have been taken with respect to the Wind-Down Trust Assets, by any officer, director, shareholder, or other party acting in the name of the Debtors or their Estates with like effect as if duly authorized, exercised, and taken by action of such officers, directors, shareholders, or other party.

(b) Open and maintain bank accounts on behalf of or in the name of the Wind-Down Trust, calculate and make distributions, and take other actions consistent with the Plan and the implementation thereof, including the establishment, re-evaluation, adjustment, and maintenance of appropriate reserves, in the name of the Wind-Down Trust.

(c) Receive, manage, invest, supervise, and protect the Wind-Down Trust Assets, subject to the limitations provided herein.

(d) Hold legal title to any and all Wind-Down Trust Assets.


(e) Subject to the applicable provisions of the Plan, collect and liquidate all Wind-Down Trust Assets.

(f) Review and, where appropriate, object to claims payable pursuant to the Plan or the Bankruptcy Code, and, subject to the terms of the Plan, supervise and administer the resolution, settlement and payment of claims payable pursuant to the Plan or the Bankruptcy Code, and the distribution to the Beneficiaries and creditors of the Wind-Down Trust, in accordance with this Agreement, the Plan, and the Confirmation Order.

(g) Fulfill all obligations of the Post-Effective Date Debtors related to the Store Closing Agency Agreement and Store Closings.

(h) As applicable, (i) seek a determination of tax liability under Bankruptcy Code section 505; (ii) file if necessary, any and all tax and information returns required with respect to the Wind-Down Trust; (iii) make tax elections for and on behalf of the Wind-Down Trust; and (iv) pay taxes, if any, payable for and on behalf of the Wind-Down Trust.

(i) Pay all lawful expenses, debts, charges, taxes, and liabilities of the Wind-Down Trust.

(j) Make distributions to the Beneficiaries, and to creditors of the Wind-Down Trust, including holders of claims in Class 5, as provided for, or contemplated by the Plan, the Confirmation Order, and this Agreement.

(k) Withhold from the amount distributable to any person such amount as may be sufficient to pay any tax or other charge which the Wind-Down Trustee has determined, in its sole discretion, may be required to be withheld therefrom under the income tax laws of the United States, any foreign country, or of any state, local, or political subdivision of either.

(l) Enter into any agreement or execute any document or instrument required by or consistent with the Plan, the Confirmation Order, or this Agreement and perform all obligations thereunder.

(m) If any of the Wind-Down Trust Assets are situated in any state or other jurisdiction in which the Wind-Down Trustee is not qualified to act as trustee, nominate and appoint a person duly qualified to act as trustee in such state or jurisdiction and require from each such trustee such security as may be designated by the Wind-Down Trustee in its discretion; confer on such trustee all the rights, powers, privileges, and duties of the Wind-Down Trustee hereunder, subject to the conditions and limitations of this Agreement, except as modified or limited by the Wind-Down Trustee and except where the conditions and limitations may be modified by the laws of such state or other jurisdiction (in which case, the laws of the state or other jurisdiction in which such trustee is acting shall prevail to the extent necessary); require such trustee to be answerable to the Wind-Down Trustee for all monies, assets, and other property that may be received in connection with the administration of all property; and, remove such trustee, with or without cause, and appoint a successor trustee at any time by the execution by the Wind-Down Trustee of a written instrument declaring such trustee removed from office, and specifying the effective date and time of removal.


(n) Purchase and carry all insurance policies and pay all insurance premiums and costs it deems reasonably necessary or advisable.

(o) Retain and compensate, without further order of the Bankruptcy Court, the services of employees, professionals, and consultants to advise and assist in the administration, prosecution and distribution of the Wind-Down Trust Assets, to be paid solely from the funds held in trust for the Beneficiary or Beneficiaries for which such costs, expenses, and obligations were incurred; provided, that for the avoidance of doubt and sake of efficiency, the Liquidation Trust may retain the same professionals and/ or consultants as the Plan Administrator, unless any actual conflicts arise that may not be waived with the consent of the Wind-Down Trust and Wind-Down Trustee.

(p) Implement, enforce, or discharge all of the terms, conditions and all other provisions of, and all duties and obligations under, the Plan, the Confirmation Order, and this Agreement relating to the Wind-Down Trust, the Wind-Down Trust Assets, or the Wind-Down Trustee.

(q) Invest in demand and time deposits in banks or savings institutions, or temporary investments such as short term certificates of deposit or Treasury bills or other investments that a “Wind-Down Trust” within the meaning of Treasury Regulation Section 301.7701-4(d) may be permitted to hold, pursuant to the Treasury Regulations or any modification in the Internal Revenue Services (“IRS”) guidelines, whether set forth in IRS rulings, revenue procedures, other IRS pronouncements or otherwise.

(r) Take all other actions consistent with the provisions of the Plan that the Wind-Down Trustee deems reasonably necessary or desirable to administer the Wind-Down Trust in accordance with the Plan, the Confirmation Order, and this Agreement.

2.3 Limitations on the Wind-Down Trustee. Notwithstanding anything under applicable law, this Agreement, or the Plan to the contrary, the Wind-Down Trustee shall not do or undertake any of the following:

(a) Take any action that would jeopardize treatment of the Wind-Down Trust as a “Wind-Down Trust” for federal income tax purposes.

(b) Receive transfers of any listed stocks or securities, or any readily marketable securities, except as is absolutely necessary or required under the Plan and the Confirmation Order; provided, however, that in no event shall the Wind-Down Trustee receive any such investment that would jeopardize treatment of the Wind-Down Trust as a “Wind-Down Trust” for federal income tax purposes.

(c) Receive or retain cash or cash equivalents in excess of a reasonable amount necessary to (i) fulfill obligations related to Store Closings or the Plan, or (ii) make applicable distributions to Beneficiaries and satisfy any liabilities of the Wind-Down Trust and to establish and maintain the reserves contemplated by the Plan.

(d) Exercise any investment power other than the power to invest in demand and time deposits in banks or savings institutions, or other temporary liquid investments, such as


short-term certificates of deposit or Treasury bills or other investments that a “Wind-Down Trust” within the meaning of Treasury Regulation Section 301.7701-4(d) may be permitted to hold, pursuant to the Treasury Regulations or any IRS guidelines, whether set forth in IRS rulings, IRS revenue procedures, other IRS pronouncements, or otherwise.

(e) Receive or retain any operating assets of an ongoing business, a partnership interest in a partnership that holds operating assets, or fifty percent (50%) or more of the stock of a corporation with operating assets, except for the new equity interests in each of the Post-Effective Date Debtors (if applicable).

(f) Accept or take on, directly or indirectly, any obligation or other liability, monetary or otherwise, on behalf of the Wind-Down Trust, including but not limited to the assumption or assignment of any Executory Contract or Unexpired Lease, as provided in the Plan unless such obligation or other liability would not jeopardize treatment of the Wind-Down Trust as a “Wind-Down Trust” for federal income tax purposes.

(g) Notwithstanding any of the foregoing, the Wind-Down Trustee shall not be prohibited from engaging in any trade or business on its own account, provided that such activity does not interfere with the Wind-Down Trustee’s administration of the Wind-Down Trust.

2.4 Compensation of Wind-Down Trustee and Its Professionals.

(a) The initial Wind-Down Trustee shall receive fair and reasonable compensation for his services equal to $25,000 per month, which compensation shall be a charge against and paid out of the Wind-Down Trust Assets. The reimbursement of reasonable out-of-pocket expenses shall be paid in arrears on or before the last Business Day of each month. Any successor to the Wind-Down Trustee shall also be entitled to reasonable compensation in connection with the performance of its duties, which compensation may be different from the terms provided herein.

(b) The Wind-Down Trustee shall be entitled to pay from the Wind-Down Trust Assets reasonable compensation, plus the reimbursement of reasonable out-of-pocket expenses, to each of its professionals on such terms and conditions as may be agreed to upon by the parties, but solely from the funds held in trust for the Beneficiary for which such costs, expenses, and obligations were incurred. In the event that a dispute arises between the parties regarding payment of any such compensation or expense reimbursement, the professionals may seek payment of such fees and costs by filing a motion with the Bankruptcy Court and providing notice to the Wind-Down Trustee.

2.5 Wind-Down Trust Operational Reserve. The Wind-Down Trustee may establish, fund, and administer a reserve (the “Wind-Down Trust Operational Reserve”) to hold the amount of Cash deemed necessary to satisfy its anticipated future operating expenses.

2.6 Replacement of the Wind-Down Trustee. The Wind-Down Trustee may resign at any time upon thirty days’ written notice delivered to the Bankruptcy Court, provided, that such resignation shall only become effective upon the appointment of a permanent or interim successor Wind-Down Trustee, unless (i) the Insurance Coverages (as defined below) terminate for any reason other than the Wind-Down Trustee’s unreasonable refusal to renew such Insurance


Coverages; or (ii) Wind-Down Trustee determines in his or her reasonable judgment that the Wind-Down Trust lacks sufficient assets and financial resources, after reasonable collection efforts, to complete the duties and powers assigned to him or her under the Plan, the Confirmation Order and/or this Agreement, in which case such resignation may become effective without appointment of a successor Wind-Down Trustee. The Wind-Down Trustee may be removed by the Bankruptcy Court upon motion and after notice and a hearing, which motion may be brought by any party in interest. In the event of the resignation, death, disability, dissolution, or removal of the Wind-Down Trustee the DIP Agent may appoint a replacement. Upon its appointment, the successor Wind-Down Trustee, without any further act, shall become fully vested with all of the rights, powers, duties, and obligations of its predecessor and all responsibilities of the predecessor Wind-Down Trustee relating to the Wind-Down Trust shall be terminated; provided, however, that the original Wind-Down Trustee’s right to indemnification shall survive termination and is subject to Sections 5.2 and 5.3 hereof. In the event the Wind-Down Trustee’s appointment terminates by reason of termination without cause, death, or disability (meaning herein, incapacity resulting in the inability to perform services for three consecutive months or in the aggregate of 180 days during any twelve month period), amounts owed (including on account of any incentive fee compensation) to the original Wind-Down Trustee (or its estate or representative) on the one hand and any successor Wind-Down Trustee on the other shall be allocated between them to reflect their respective periods of service; provided, however, that the original Wind-Down Trustee shall be compensated for all reasonable fees and expenses accrued through the effective date of termination, whether or not previously invoiced and shall be paid the portion of the incentive fee compensation that may be earned by, or which would be earned as a result of claims objections in progress at, the time of his termination. In the event of the removal or resignation of any Wind-Down Trustee with cause, such Wind-Down Trustee (or his estate or representatives) shall be immediately compensated for all reasonable fees and expenses accrued through the effective date of termination, whether or not previously invoiced.

2.7 Wind-Down Trust Continuance. The death, dissolution, resignation, or removal of the Wind-Down Trustee shall not terminate the Wind-Down Trust or revoke any existing agency created by the Wind-Down Trustee pursuant to this Agreement or invalidate any action theretofore taken by the Wind-Down Trustee, and the successor Wind-Down Trustee agrees that the provisions of this Agreement shall be binding upon and inure to the benefit of the successor Wind-Down Trustee and all its successors or assigns.

ARTICLE III LIABILITY OF WIND-DOWN TRUSTEE

3.1 Standard of Care; Exculpation. Neither the Wind-Down Trustee nor any director, officer, affiliate, employee, employer, professional, agent, or representative of the Wind-Down Trustee shall be liable for losses, claims, damages, liabilities, or expenses in connection with the affairs or property of the Wind-Down Trust to any Beneficiary of the Wind-Down Trust, or any other person, for the acts or omissions of the Wind-Down Trustee; provided, however, that the foregoing limitation shall not apply as to any losses, claims, damages, liabilities or expenses suffered or incurred by any Beneficiary that are found by a final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from the fraud, gross negligence, or willful misconduct of such person or entity. Every


act done, power exercised or obligation assumed by the Wind-Down Trust, the Wind-Down Trustee, or any director, officer, affiliate, employee, employer, professional, agent, or representative of the Wind-Down Trustee pursuant to the provisions of this Agreement shall be held to be done, exercised, or assumed, as the case may be, by the Wind-Down Trust, the Wind-Down Trustee, or any director, officer, affiliate, employee, employer, professional, agent, or representative of the Wind-Down Trustee acting for and on behalf of the Wind-Down Trust and not otherwise; provided, however, that none of the foregoing Entities or Persons are deemed to be responsible for any other such Entities’ or Persons’ actions or inactions outside of the scope of the authority provided by the Wind-Down Trust. Except as provided in the proviso of the first sentence of this Section 3.1, every Beneficiary, Person, firm, corporation or other Entity contracting or otherwise dealing with or having any relationship with the Wind-Down Trust, the Wind-Down Trustee, or any director, officer, affiliate, employee, employer, professional, agent, or representative of the Wind-Down Trustee shall have recourse only to the Wind-Down Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings, or relationships and the Wind-Down Trust, the Wind-Down Trustee, any director, officer, affiliate, employee, employer, professional, agent, or representative of the Wind-Down Trustee shall not be individually liable therefor. For the avoidance of doubt, the Wind-Down Trustee, in its capacity as such, shall have no liability whatsoever to any party for the liabilities and/or obligations, however created, whether direct or indirect, in tort, contract, or otherwise, of the Debtors or the Post-Effective Date Debtors.

3.2 Indemnification.

(a) Except as otherwise set forth in the Plan or Confirmation Order, the Wind-Down Trustee, and any director, officer, affiliate, employee, employer, professional, agent, or representative of the Wind-Down Trustee (collectively, the “Indemnified Parties”) shall be defended, held harmless, and indemnified from time to time by the Wind-Down Trust against any and all losses, claims, damages, liabilities, penalties, obligations, and expenses, including the costs for counsel or others in investigating, preparing, or defending any action or claim, whether or not in connection with litigation in which any Indemnified Party is a party, or enforcing this Agreement (including these indemnity provisions), as and when incurred, caused by, relating to, based on, or arising out of (directly or indirectly) the Wind-Down Trustee’s acceptance of or the performance or nonperformance of its obligations under this Agreement, the Plan, or the Confirmation Order; provided, however, such indemnity shall not apply to any such loss, claim, damage, liability, or expense to the extent it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to be a liability for which recourse is not limited to the Wind-Down Trust Assets pursuant to Section 3.1 above. Satisfaction of any obligation of the Wind-Down Trust arising pursuant to the terms of this Section shall be payable only from the Wind-Down Trust Assets, may be advanced prior to the conclusion of such matter, and such right to payment shall be prior and superior to any other rights to receive a distribution of the Wind-Down Trust Assets.

(b) Subject to the available Wind-Down Trust Assets and outstanding liabilities and expenses of the Wind-Down Trust, the Wind-Down Trust shall promptly pay expenses reasonably incurred by any Indemnified Party in defending, participating in, or settling any action, proceeding, or investigation in which such Indemnified Party is a party or is threatened to be made a party or otherwise is participating in connection with the Agreement or the duties, acts, or omissions of the Wind-Down Trustee, upon submission of invoices therefor, whether in


advance of the final disposition of such action, proceeding, or investigation or otherwise. Each Indemnified Party hereby undertakes, and the Wind-Down Trust hereby accepts its undertaking, to repay any and all such amounts so advanced if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified therefor under this Agreement.

3.3 No Liability for Acts of Successor/Predecessor Wind-Down Trustees. Upon the appointment of a successor Wind-Down Trustee and the delivery of the Wind-Down Trust Assets to the successor Wind-Down Trustee, the predecessor Wind-Down Trustee and any director, officer, affiliate, employee, employer, professional, agent, or representative of the predecessor Wind-Down Trustee shall have no further liability or responsibility with respect thereto. A successor Wind-Down Trustee shall have no duty to examine or inquire into the acts or omissions of its immediate or remote predecessor and no successor Wind-Down Trustee shall be in any way liable for the acts or omissions of any predecessor Wind-Down Trustee, unless a successor Wind-Down Trustee expressly assumes such responsibility. A predecessor Wind-Down Trustee shall have no liability for the acts or omissions of any immediate or subsequent successor Wind-Down Trustee for any events or occurrences subsequent to the cessation of its role as Wind-Down Trustee.

3.4 Reliance by Wind-Down Trustee on Documents or Advice of Counsel. Except as otherwise provided in this Agreement, the Wind-Down Trustee, any director, officer, affiliate, employee, employer, professional, agent, or representative of the Wind-Down Trustee may rely, and shall be protected from liability for acting, on any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other paper or document reasonably believed by the Wind-Down Trustee to be genuine and to have been presented by an authorized party. The Wind-Down Trustee shall not be liable for any action taken or suffered by the Wind-Down Trustee in reasonable reliance upon the advice of counsel or other professionals engaged by the Wind-Down Trustee in accordance with this Agreement and the Plan.

3.5 Insurance. The Wind-Down Trustee may obtain, at the expense of the Post-Effective Date Debtors, commercially reasonable liability or other appropriate insurance with respect to the indemnification obligations set forth herein. The Debtors shall fund as of the Effective Date such insurance coverage in favor of the Wind-Down Trust and Wind-Down Trustee in an amount of not less than $[3] million (“Insurance Coverages”) for the first annual term. Any such costs incurred by the Debtors in obtaining the Insurance Coverages on the Effective Date shall be paid from the Wind-Down Trust Assets.

3.6 Survival. The provisions of this Article III shall survive the termination of this Wind-Down Trust Agreement and the resignation, death, dissolution, removal, liquidation, or replacement of the Wind-Down Trustee.

ARTICLE IV GENERAL PROVISIONS CONCERNING

ADMINISTRATION OF THE WIND-DOWN TRUST

4.1 Register of Beneficiaries. The Wind-Down Trust shall maintain at all times a register of the names, mailing addresses, amounts of Allowed Claims, and the Pro Rata interests in the Wind-Down Trust of the Beneficiaries (the “Register”). The Register shall be limited to


those Beneficiaries who are determined by the Wind-Down Trustee as of the Effective Date to be entitled to Distributions under the Plan. The Wind-Down Trustee shall cause the Register to be kept at its office or at such other place or places as may be designated by the Wind-Down Trustee from time to time. The initial Register shall be delivered to the Wind-Down Trustee by the Debtors and shall be based on the best available information at the time of the Effective Date and prepared in accordance with the provisions of the Plan and the Confirmation Order. All references in this Wind-Down Trust Agreement to holders of beneficial interests in the Wind-Down Trust shall be read to mean holders of record as set forth in the Register maintained by the Wind-Down Trustee and shall exclude any beneficial owner not recorded on such Register.

4.2 Books and Records. The Wind-Down Trust also shall maintain in respect of the Wind-Down Trust and the Beneficiaries books and records relating to the Wind-Down Trust Assets and any income realized therefrom and the payment of expenses of and claims against or assumed by the Wind-Down Trust in such detail and for such period of time as may be necessary to enable it to make full and proper reports in respect thereof. Except as expressly provided in this Agreement, the Plan, or the Confirmation Order, or as may be required by applicable law (including securities law), nothing in this Agreement is intended to require the Wind-Down Trust to file any accounting or seek approval of any court with respect to the administration of the Wind-Down Trust, or as a condition for making any payment or distribution out of the Wind-Down Trust Assets. Beneficiaries shall have the right upon thirty (30) days’ prior written notice delivered to the Wind-Down Trustee to inspect the Wind-Down Trust’s books and records, including the Register, provided such Beneficiary shall have entered into a confidentiality agreement in form and substance reasonably satisfactory to the Wind-Down Trustee. Satisfaction of the foregoing condition notwithstanding, if (a) the Wind-Down Trustee determines in good faith that the inspection of the Wind-Down Trust’s books and records, including the Register, by any Beneficiary would be detrimental to the Wind-Down Trust or (b) such Beneficiary is a defendant (or potential defendant) in a pending (or potential) action or contested matter brought by or against the Wind-Down Trust, the Wind-Down Trust may deny such request for inspection. The Bankruptcy Court shall resolve any dispute between any Beneficiary and the Wind-Down Trustee under this Section 4.2.

4.3 Filing of Interim Reports. The Wind-Down Trust shall file with the Bankruptcy Court semi-annual reports regarding the wind-down or other administration of the Wind-Down Trust Assets.

4.4 Final Accounting of Wind-Down Trustee. The Wind-Down Trustee (or any such successor Wind-Down Trustee) shall within ninety (90) days after the termination of the Wind-Down Trust or the death, dissolution, resignation, or removal of the Wind-Down Trustee, render an accounting containing at least the following information:

(a) A description of the Wind-Down Trust Assets;

(b) A summarized accounting in sufficient detail of all gains, losses, receipts, disbursements, and other transactions in connection with the Wind-Down Trust and the Wind-Down Trust Assets during the Wind-Down Trustee’s term of service, including their source and nature;


(c) Separate entries for all receipts of principal and income;

(d) The ending balance of all Wind-Down Trust Assets as of the date of the accounting, including the Cash balance on hand and the name(s) and location(s) of the depository or depositories where the Cash is kept;

(e) All known liabilities of the Wind-Down Trust; and

(f) All pending actions.

4.5 Filing of Accounting. The accounting described in Section 4.4 shall be filed with the Bankruptcy Court and all Beneficiaries shall thereby have notice that the final accounting has been filed and an opportunity to have a hearing on the approval of the accounting and, to the extent applicable, the discharge and release of the Wind-Down Trustee.

4.6 Filing of Tax Returns. The Wind-Down Trust shall be responsible for filing all federal, state, local, and foreign tax returns for the Wind-Down Trust (but not for the Debtors).

ARTICLE V BENEFICIAL INTERESTS AND BENEFICIARIES

A. Trust Beneficial Interests. Any Party with right to payment under the Plan who has not been paid, or with a right to payment that has not been otherwise resolved, shall be entitled to distributions as Beneficiaries as set herein and in the Plan.

5.1 Interest Beneficial Only. Ownership of a beneficial interest in the Wind-Down Trust shall not entitle any Beneficiary to any title in or to the Wind-Down Trust Assets or to any right to call for a partition or division of the Wind-Down Trust Assets or to require an accounting.

5.2 Evidence of Beneficial Interest. Ownership of a beneficial interest in the Wind-Down Trust shall not be evidenced by any certificate, security, or receipt or in any other form or manner whatsoever, except as maintained on the books and records of the Wind-Down Trust by the Wind-Down Trustee, which may be the Register.

5.3 Exemption from Registration. The parties hereto intend that the rights of the holders of the beneficial interests arising under this Wind-Down Trust Agreement shall not be “securities” under applicable laws, but none of the parties hereto represents or warrants that such rights shall not be securities or shall be entitled to exemption from registration under applicable securities laws. If such rights constitute securities, the parties hereto intend for the exemption from registration provided by section 1145 of the Bankruptcy Code and by other applicable law to apply to their issuance under the Plan.

5.4 Transfers of Beneficial Interests. Beneficial interests in the Wind-Down Trust shall be nontransferable except upon death of the interest Holder or by operation of law. The Wind-Down Trust shall not have any obligation to recognize any transfer of Claims or Interests occurring after the Voting Deadline. Only those Holders of Claims stated on the Register shall be entitled to be recognized for all purposes hereunder.


5.5 Absolute Owners. The Wind-Down Trustee may deem and treat the Beneficiary reflected as the owner of a beneficial interest on the Register as the absolute owner thereof for the purposes of receiving distributions and payments on account thereof for federal and state income tax purposes and for all other purposes whatsoever.

5.6 Change of Address. A Beneficiary may, after the Effective Date, select an alternative mailing address by notifying the Wind-Down Trust in writing of such alternative Distribution Address. Absent such notice, the Wind-Down Trustee shall not recognize any such change of address. Such notification shall be effective only upon receipt by the Wind-Down Trustee.

5.7 Effect of Death, Dissolution, Incapacity, or Bankruptcy of Beneficiary. The death, dissolution, incapacity, or bankruptcy of a Beneficiary during the term of the Wind-Down Trust shall not operate to terminate the Wind-Down Trust during the term of the Wind-Down Trust nor shall it entitle the representative or creditors of the deceased, dissolved, incapacitated, or bankrupt Beneficiary to an accounting or to take any action in any court or elsewhere for the distribution of the Wind-Down Trust Assets or for a partition thereof, nor shall it otherwise affect the rights and obligations of the Beneficiary under this Agreement or in the Wind-Down Trust.

5.8 Standing. Except as expressly provided in this Agreement, the Plan, or the Confirmation Order, a Beneficiary does not have standing to direct the Wind-Down Trustee to do or not to do any act or to institute any action or proceeding at law or in equity against any party (other than against the Wind-Down Trustee to the extent provided in this Agreement) with respect to the Wind-Down Trust Assets.

ARTICLE VI DISTRIBUTIONS

6.1 Distributions to Beneficiaries from Wind-Down Trust Assets. All payments to be made by the Wind-Down Trust on account of any Store Closings, the Store Closing Agency Agreement, or obligations under the Plan to any Beneficiary shall be made only in accordance with the Plan, the Confirmation Order, and this Agreement and from the Wind-Down Trust Assets, and only to the extent that the Wind-Down Trust has sufficient Wind-Down Trust Assets (or income and proceeds realized from the Wind-Down Trust Assets) to make such payments in accordance with and to the extent provided for in the Plan, the Confirmation Order, and this Agreement.

6.2 Distributions; Withholding. The Wind-Down Trustee shall make initial distributions with respect to each Class of Allowed Claims as provided in the Plan and, following the initial distributions required under the Plan, the Wind-Down Trustee shall make distributions to each Class of Allowed Claims (including distributions of all net Cash (including net Cash proceeds)) on Subsequent Distribution Dates. All such distributions shall be made as provided, and subject to any withholding or reserve, in this Agreement, the Plan, or the Confirmation Order. The Wind-Down Trustee may withhold from amounts distributable to any Beneficiary any and all amounts, determined in the Wind-Down Trustee’s sole discretion, to be required by any law, regulation, rule, ruling, directive, or other governmental requirement. The Wind-Down Trustee


shall make payments for Admin Claims, Priority Claims, and on account of the Store Closing Agency Agreement as soon as such payments come due.

6.3 No Distribution Pending Allowance. No payment or distribution shall be made with respect to any Claim to the extent it is a Disputed Claim unless and until such Disputed Claim becomes an Allowed Claim, except for distributions into a Disputed Claims Reserve in accordance with the Plan, Confirmation Order, and this Agreement.

6.4 Distributions After Allowance. Distributions to each Holder of a Disputed Claim, to the extent that such Claim ultimately becomes an Allowed Claim, shall be made in accordance with the provisions of the Plan governing the Class of Claims to which such Holder of a Claim belongs.

6.5 Undeliverable Distributions. If any Distribution is returned as undeliverable, the Wind-Down Trust may, in its sole discretion, make such efforts to determine the current address of the holder of the Claim with respect to which the Distribution was made as the Wind-Down Trust deems appropriate, but no Distribution to any holder shall be made unless and until the Wind-Down Trust has determined the then-current address of the holder, at which time the Distribution to such holder shall be made to the holder without interest. Amounts in respect of any undeliverable Distributions made by the Wind-Down Trust shall be returned to, and held in trust by, the Wind-Down Trust until the Distributions are claimed or are deemed to be unclaimed property under section 347(b) of the Bankruptcy Code and the Plan at the expiration of six months from the date the distribution is made (“Unclaimed Property”).

6.6 Unclaimed Property. In the event that any distribution to any Beneficiary becomes Unclaimed Property, such distributions will revert to the Wind-Down Trust as an asset of the Liquidation Trust; provided, however, that, pursuant to the Plan, the Wind-Down Trustee shall not be required to make distributions of less than $100.00 (a “Minimum Distribution”) and if after administering all Wind-Down Trust Assets and collecting all amounts which may be payable to and for the benefit of Holders of General Unsecured Claims, the amount held by the Wind-Down Trust for the benefit of Holders of General Unsecured Claims is less than $10,000.00, the Wind-Down Trustee, in his sole discretion, may donate the remaining funds to a 501(c)(3) charitable institution. Neither available Cash nor any Claim or any unclaimed property attributable to such Claim, shall escheat to any federal, state, or local government or other entity.

6.7 Time Bar to Cash Payments by Check. Checks issued by the Wind-Down Trust on account of Allowed Claims shall be null and void if not negotiated within 90 days after the date of issuance thereof. Requests for the reissuance of any check that becomes null and void pursuant to the Plan and this Section 6.7 shall be made directly to the Wind-Down Trustee by the holder of the Allowed Claim to whom the check was originally issued. Any Claim in respect of such voided check shall be made in writing on or before the later of the first anniversary of the Effective Date or the first anniversary of the date on which the Claim at issue became an Allowed Claim. After that date, all Claims in respect of void checks shall be discharged and forever barred and the proceeds of those checks shall revest in and become property of the Wind-Down Trust as Unclaimed Property.


6.8 Withholding Taxes. Any federal, state, or local withholding taxes or other amounts required to be withheld under applicable law shall be deducted from distributions hereunder and to the extent of knowledge and records available to the Wind-Down Trust. All Beneficiaries shall be required to provide the Wind-Down Trustee with any information necessary in connection with the withholding of such taxes. In addition, all distributions under the Plan shall be net of the actual and reasonable costs of making such distributions.

6.9 Distributions on Non-Business Days. Any distribution due on a day other than a Business Day shall be made, without interest, on the next Business Day.

6.10 No Distribution in Excess of Allowed Amount of Claim. Notwithstanding anything to the contrary in the Plan, no Beneficiary shall receive in respect of such Claims held by the Beneficiary any distribution in excess of the Allowed amount of such Claim, plus postpetition interest thereon to the extent allowed by the Plan. Upon a Beneficiary’s recovering the full amount of its Allowed Claim from another source, it thereafter shall no longer have any entitlement to receive distributions under the Plan.

6.11 Setoff and Recoupment. The Wind-Down Trust may, but shall not be required to, setoff against, or recoup from, any Claim and the Distribution to be made pursuant to the Plan in respect thereof, any claims or defenses of any nature whatsoever that the Debtor, the Estates or the Wind-Down Trust may have against the holder of such Claim, but neither the failure to do so nor the allowance of any Claim under the Plan shall constitute a waiver or release by the Debtor, the Estates or the Wind-Down Trust of any claim, defense, right of setoff, or recoupment that any of them may have against the holder of any Claim.

ARTICLE VII TAXES

7.1 Income Tax Status. Consistent with Revenue Procedure 94-45, 1994-2 C. B. 684, the Wind-Down Trust, except with respect to the Disputed Claims Reserves, shall be treated as a Wind-Down Trust pursuant to Treasury Regulation Section 301.7701-4(d) and as a grantor trust pursuant to IRC Sections 671-677. As such, the Beneficiaries will be treated as both the grantors and the deemed owners of the Wind-Down Trust, except with respect to the Disputed Claims Reserves. Any items of income, deduction, credit, and loss of the Wind-Down Trust, except with respect to the Disputed Claims Reserves, shall be allocated for federal income tax purposes to the Beneficiaries.

7.2 Tax Treatment of Transfer of Assets to the Wind-Down Trust. For all federal income tax purposes, all parties (including, without limitation, the Debtors, the Wind-Down Trustee, and the Beneficiaries) shall treat the transfer of Wind-Down Trust Assets to the Wind-Down Trust as a transfer of such Wind-Down Trust Assets (net of any applicable liabilities) to the Beneficiaries (to the extent of the value of their respective interests in such Wind-Down Trust Assets) and a transfer of such Wind-Down Trust Assets (net of any applicable liabilities) by the Beneficiaries (to the extent of the value of their respective interests in such Wind-Down Trust Assets) to the Wind-Down Trust.


7.3 Tax Returns. In accordance with Treasury Regulation Section 1.671-4(a), the Wind-Down Trustee shall file with the IRS annual tax returns for the Wind-Down Trust as a grantor trust on IRS Form 1041. In addition, the Wind-Down Trustee shall file in a timely manner such other tax returns, including any state and local tax returns, as are required by applicable law and pay any taxes shown as due thereon. The Wind-Down Trustee shall send to each Holder of a beneficial interest appearing on the Register who is a Minimum Distributee during such year, a separate statement setting forth such Holder’s share of items of income, gain, loss, deduction, or credit and each such Holder shall report such items on their federal income tax returns; provided, however, that no such statement need be sent to any Beneficiaries that are not expected to receive any distribution from the Wind-Down Trust as a Minimum Distributee. The Wind-Down Trustee may provide each such Holder of a beneficial interest with a copy of the Form 1041 for the Wind-Down Trust (without attaching any other Holder’s Schedule K-1 or other applicable information form) along with such Holder’s Schedule K-1 or other applicable information form in order to satisfy the foregoing requirement.

7.4 Allocation. The Wind-Down Trust shall allocate the taxable income, gain, loss, deduction or credit of the Wind-Down Trust with respect to each Holder of a beneficial interest to the extent required by applicable law.

7.5 Withholding of Taxes and Reporting Related to Wind-Down Trust Operations. In connection with the Plan and all distributions thereunder, the Wind-Down Trustee shall, to the extent applicable, comply with all tax withholding and reporting requirements imposed by any federal, state, provincial, local, or foreign taxing authority, and all distributions thereunder shall be subject to any such withholding and reporting requirements. The Wind-Down Trustee is authorized by the Plan to take any and all actions that may be necessary or appropriate to comply with such withholding and reporting requirements. The Wind-Down Trustee may require any Beneficiary to furnish to the Wind-Down Trustee its social security number or employer or taxpayer identification number as assigned by the IRS and the Wind-Down Trustee may condition any distribution to any Beneficiary upon the receipt of such identification number. The Debtors shall provide a form W-9 and request other applicable withholding information and give notice (in form reasonably acceptable to Wind-Down Trustee) of this provision, its requirements and this Agreement to Beneficiaries, together with the notice of the Effective Date.

7.6 Valuations. As soon as possible after the Effective Date, the Wind-Down Trustee, in consultation with any financial advisors it deems appropriate, shall make a good faith valuation of the Wind-Down Trust Assets, and such valuation shall be used consistently by all parties (including, without limitation, the Wind-Down Trust and the Beneficiaries) for all federal income tax purposes. The Wind-Down Trust also shall file (or cause to be filed) any other statements, returns, or disclosures relating to the Wind-Down Trust that are required by any governmental unit.

7.7 Treatment of Disputed Claims Reserves. The Wind-Down Trust shall file all income tax returns with respect to any income attributable to the Disputed Claims Reserves and shall pay the federal, state, and local income taxes attributable to the Disputed Claims Reserves, based on the items of income, deduction, credit, or loss allocable thereto. All Beneficiaries shall report, for income tax purposes, consistent with the foregoing. In the event, and to the extent, any Cash retained on account of Disputed Claims in the Disputed Claims Reserves is insufficient to


pay the portion of any such taxes attributable to the taxable income arising from the assets allocable to, or retained on account of, Disputed Claims, such taxes shall be (i) reimbursed from any subsequent Cash amounts retained on account of Disputed Claims, or (ii) to the extent such Disputed Claims have subsequently been resolved, deducted from any amounts distributable by the Wind-Down Trustee as a result of the resolutions of such Disputed Claims.

7.8 Expedited Determination of Taxes. The Wind-Down Trust may request an expedited determination of taxes of the Debtors and of the Wind-Down Trust, including the Disputed Claims Reserves, under Bankruptcy Code Section 505(b) for all returns filed for, or on behalf of, the Debtors and the Wind-Down Trust for all taxable periods through the termination of the Wind-Down Trust.

ARTICLE VIII TERMINATION OF WIND-DOWN TRUST

8.1 Termination of Wind-Down Trust. The Wind-Down Trustee shall be discharged and the Wind-Down Trust shall be terminated, at such time as: (A) (i) all of the Wind-Down Trust Assets have been liquidated, (ii) all duties and obligations of the Wind-Down Trustee hereunder have been fulfilled, (iii) all distributions required to be made by the Wind-Down Trustee under the Plan and this Agreement have been made, and (iv) the Chapter 11 Cases of the Debtors have been closed; or (B) Wind-Down Trustee determines in his or her reasonable judgment that the Wind-Down Trust lacks sufficient assets and financial resources, after reasonable collection efforts, to complete the duties and powers assigned to him or her under the Plan, the Confirmation Order and/or this Agreement.

8.2 Maximum Term. The term of the Wind-Down Trust shall end no later than the first annual anniversary of the Effective Date (the “Initial Wind-Down Trust Term”); provided, however, that the Wind-Down Trustee may, subject to the further provisions of this Section 8.2, extend the term of the Wind-Down Trust for such additional period of time as is necessary to facilitate or complete the recovery and liquidation of the Wind-Down Trust Assets as follows: within the six (6) month period prior to the termination of the Initial Wind-Down Trust Term, the Wind-Down Trust may file a notice of intent to extend the term of the Wind-Down Trust with the Bankruptcy Court and upon approval of the Bankruptcy Court of such extension, the term of the Wind-Down Trust shall be so extended. The Wind-Down Trust may file one or more such extension notices, each notice to be filed within the six (6) month period prior to the termination of the extended term of the Wind-Down Trust (all such extensions, collectively, the “Supplemental Wind-Down Trust Term”). Notwithstanding anything to the contrary in this Section 8.2, however, the Supplemental Liquidation Term may not exceed three (3) years without a favorable letter ruling from the IRS that any further extension would not adversely affect the status of the Wind-Down Trust as a Wind-Down Trust for federal income tax purposes. In addition, the provisions of this Section 11.2 shall be without prejudice to the right of any party in interest under Bankruptcy Code Section 1109 to petition the Bankruptcy Court, for cause shown, to shorten the Supplemental Wind-Down Trust Term.

8.3 Events Upon End of Term Termination. At the conclusion of the term of the Wind-Down Trust, any excess funds shall be paid to DBHI in accordance with the Asset Purchase Agreement.


8.4 Winding Up and Discharge of the Wind-Down Trustee. For the purposes of winding up the affairs of the Wind-Down Trust at the conclusion of its term, the Wind-Down Trustee shall continue to act as Wind-Down Trustee until its duties under this Agreement have been fully discharged or its role as Wind-Down Trustee is otherwise terminated under this Agreement and the Plan. Upon a motion by the Wind-Down Trustee, the Bankruptcy Court may enter an order relieving the Wind-Down Trustee, its agents, and employees of any further duties, discharging the Wind-Down Trustee and releasing its bond, if any.

ARTICLE IX MISCELLANEOUS PROVISIONS

9.1 Amendments. The Wind-Down Trustee may modify, supplement, or amend this Agreement but only to clarify any ambiguity or inconsistency, or render the Agreement in compliance with its stated tax purposes, and only if such amendment does not materially and adversely affect the interests, rights, treatment, or distributions of any Beneficiaries. The Wind-Down Trustee may modify, supplement, or amend this Agreement in any way that is not inconsistent with the Plan or the Confirmation Order.

9.2 Waiver. No failure by the Wind-Down Trust or the Wind-Down Trustee to exercise or delay in exercising any right, power or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any further exercise thereof, or of any other right, power or privilege.

9.3 Cumulative Rights and Remedies. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights under law or in equity.

9.4 No Bond Required. Notwithstanding any state law to the contrary, the Wind-Down Trustee (including any successor Wind-Down Trustee) shall be exempt from giving any bond or other security in any jurisdiction.

9.5 Irrevocability. This Agreement and the Wind-Down Trust created hereunder shall be irrevocable, except as otherwise expressly provided in this Agreement.

9.6 Relationship to the Plan. The principal purpose of this Agreement is to aid in the implementation of the Plan and, therefore, this Agreement incorporates and is subject to the provisions of the Plan and the Confirmation Order. In the event that any provision of this Agreement is found to be inconsistent with a provision of the Plan or the Confirmation Order, the provisions of the Plan or the Confirmation Order, as applicable, shall control. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, the Plan or the Confirmation Order, and consistent with Article II.D. of the Plan, the Wind-Down Trustee shall have the right to review and, where appropriate, object to any amounts payable under the Plan, and, subject to the terms of the Plan, supervise and administer the resolution, settlement and payment of such disputed amounts, and the distribution to the Beneficiaries and creditors of the Wind-Down Trust, in accordance with this Agreement, the Plan, and the Confirmation Order.

9.7 Division of Wind-Down Trust. Under no circumstances shall the Wind-Down Trustee have the right or power to divide the Wind-Down Trust unless authorized to do so by the Bankruptcy Court.


9.8 Applicable Law. The Wind-Down Trust is made in the State of Delaware, and the Wind-Down Trust and this Agreement, and the rights and obligations of the Wind-Down Trustee is to be governed by and construed and administered according to the laws of the State of Delaware; provided, however, that, except as expressly provided in this Agreement, there shall not be applicable to the Wind-Down Trust or this Agreement (a) the provisions of Section 3540 of Title 12 of the Delaware Code; or (b) any provisions of the laws (statutory or common) of the State of Delaware pertaining to trusts which relate to or regulate: (i) the filing with any court or governmental body or agency of trustee accounts or schedules of trustee fees and charges; (ii) affirmative requirements to post bonds for trustees, officers, agents, or employees of a trust; (iii) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or personal property; (iv) fees or other sums payable to trustees, officers, agents or employees of a trust; (v) the allocation of receipts and expenditures to income or principal; (vi) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding of trust assets; or (vii) the establishment of fiduciary or other standards or responsibilities or limitations on the acts or powers of trustees, which are inconsistent with the limitations or liabilities or authorities and powers of the Wind-Down Trustee set forth or referenced in this Agreement.

9.9 Retention of Jurisdiction. Notwithstanding the Effective Date, and to the fullest extent permitted by law, the Bankruptcy Court shall retain exclusive jurisdiction over the Wind-Down Trust after the Effective Date, including, without limitation, jurisdiction to resolve any and all controversies, suits, and issues that may arise in connection therewith, including, without limitation, this Agreement, or any entity’s obligations incurred in connection herewith, including without limitation, any action against the Wind-Down Trustee or any professional retained by the Wind-Down Trustee. Each party to this Agreement and each beneficiary of the Wind-Down Trust hereby irrevocably consents to the exclusive jurisdiction of the Bankruptcy Court in any action to enforce, interpret, or construe any provision of this Agreement or of any other agreement or document delivered in connection with this Agreement, and also hereby irrevocably waives any defense of improper venue, forum non conveniens, or lack of personal jurisdiction to any such action brought in the Bankruptcy Court. Each party further irrevocably agrees that any action to enforce, interpret, or construe any provision of this Agreement will be brought only in the Bankruptcy Court. Each party hereby irrevocably consents to the service by certified or registered mail, return receipt requested, of any process in any action to enforce, interpret or construe any provision of this Agreement.

9.10 Severability. In the event that any provision of this Agreement or the application thereof to any person or circumstance shall be determined by the Bankruptcy Court to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to persons or circumstance, other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and such provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.

9.11 Limitation of Benefits. Except as otherwise specifically provided in this Agreement, the Plan, or the Confirmation Order, nothing herein is intended or shall be construed to confer on or to give any person other than the parties hereto and the Beneficiaries any rights or remedies under or by reason of this Agreement.


9.12 Notices. All notices, requests, demands, consents, and other communication hereunder shall be in writing and shall be deemed to have been duly given to a person, if delivered in person or if sent by overnight mail, registered mail, certified mail or regular mail, with postage prepaid, to the following addresses:

If to the Wind-Down Trustee:

Robert Otto c/o Klehr Harrison Harvey Branzburg LLP 919 N. Market Street, Suite 1000 Wilmington, Delaware 19801 Tel: (302) 426-1189 Email: [email protected]

If to a Beneficiary:

To the name and mailing address set forth in the Register with respect to such Beneficiary.

The parties may designate in writing from time to time other and additional places to which notices may be sent.

9.13 Integration. This Agreement, the Plan, and the Confirmation Order constitute the entire agreement with, by, and among the parties thereto, and there are no representations, warranties, covenants, or obligations except as set forth herein, in the Plan, and in the Confirmation Order. This Agreement, together with the Plan and the Confirmation Order, supersede all prior and contemporaneous agreements, understandings, negotiations, and discussions, written or oral, of the parties hereto, relating to any transaction contemplated hereunder. Except as otherwise provided in this Agreement, the Plan, or Confirmation Order, nothing herein is intended or shall be construed to confer upon or give any person other than the parties hereto and the Beneficiaries any rights or remedies under or by reason of this Agreement. To the extent there is an inconsistency between the Plan and this Agreement, the Plan shall control.

9.14 Interpretation. The enumeration and Section headings contained in this Wind-Down Trust Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Wind-Down Trust Agreement or of any term or provision hereof. Unless context otherwise requires, whenever used in this Wind-Down Trust Agreement the singular shall include the plural and the plural shall include the singular, and words importing the masculine gender shall include the feminine and the neuter, if appropriate, and vice versa, and words importing persons shall include partnerships, associations, and corporations. The words herein, hereby, and hereunder and words with similar import, refer to this Wind-Down Trust Agreement as a whole and not to any particular Section or subsection hereof unless the context requires otherwise. Any reference to the “Wind-Down Trustee” shall be deemed to include a reference to the “Wind-Down Trust” and any reference to the “Wind-Down Trust” shall be deemed to include a reference to the “Wind-Down Trustee” except for the references in Sections 3.1 and 3.2, and such other provisions in which the context otherwise requires.


9.15 Counterparts. This Agreement may be signed by the parties hereto in counterparts, which, when taken together, shall constitute one and the same document.

IN WITNESS WHEREOF, the parties hereto have either executed and acknowledged

this Agreement, or caused it to be executed and acknowledged on their behalf by their duly authorized officers or representatives, all as of the date first above written.

Z Gallerie, LLC and Z Gallerie Holding Company, LLC By: Name: Mark Weinsten Title: Interim CEO The Wind-Down Trustee By: Name: Robert Otto


Exhibit F

Form of Store Closing Agency Agreement

The Store Closing Agency Agreement, the form of which is contained herein, sets forth the terms and agreements related to the Store Closings. Once the Store Closing Agency Agreement is approved, the Liquidator may conduct the Store Closings consistent with the Store Closing Procedures and the Plan.


1 KE .

FORM OF AGENCY AGREEMENT SUBJECT TO MATERIAL CHANGE AND REVISION

AGENCY AGREEMENT

This Agency Agreement (“Agreement”) is made as of June ___, 2019, by and between Z Gallerie, LLC (“Z Gallerie”) and Z Gallerie Holding Company, LLC (together with Z Gallerie, the “Merchant”1), Great American Group, LLC (the “Agent”); and, KKR Credit Advisors (US) LLC (“KKR”) and DirectBuy Home Improvement, Inc. (“DBHI”, and together with KKR, as appropriate the “Purchaser” or “Purchasers”).

Section 1. Recitals.

WHEREAS, on March 11, 2019, Merchant filed voluntary petitions for relief and commenced cases (the “Bankruptcy Case”) under chapter 11 of Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq, (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).

WHEREAS, on April 11, 2019, the Bankruptcy Court entered an Order (I) Approving

The Bidding Procedures, (II) Scheduling The Bid Deadlines And The Auction, (III) Approving The Form And Manner Of Notice Thereof, And (IV) Granting Related Relief [Docket No. 206] (the “Bid Procedures Order and the bidding procedures approved thereby, the “Bid Procedures”) in the Bankruptcy Case.

WHEREAS, contemporaneously herewith, Purchaser and Merchant have entered into

that certain Asset Purchase Agreement, dated as of the date hereof (the “APA”), pursuant to which Purchaser intends (i) to acquire designation rights with respect to [up to 31] store leases relating to the Designation Rights Stores and two additional facilities leases, including the Gardena California Distribution Centers, and the Berkeley Buying Office, and any contract to which Merchant is a party other than any contract exclusively relating to any Store or the Distribution Centers; and (ii) to acquire certain assets of, and certain rights from, and to assume certain liabilities of, Merchant, as specified therein. [CONFORM TO APA]

WHEREAS, Merchant operates retail stores and desires that the Agent act as

Merchant’s exclusive agent for the limited purposes of, subject to the limitations set forth in this Agreement: (a) selling all of the Merchandise (as defined below) from (i) Merchant’s retail store locations identified on Exhibit 1A attached hereto (each individually, a “Store,” and, collectively, the “Stores”) through the Stores by means of a “store closing”, “sale on everything”, “everything must go” or similar-themed sale (a sale conducted in such fashion, a “Liquidation Sale”) and (ii) Merchant’s Distribution Center located in Atlanta, Georgia the (“Distribution Center”) (the sales described in this clause (a), as further described below, the “Sale”); and (b) disposing of the Store Owned FF&E (as defined below) in the Stores.

WHEREAS, a hearing before the Bankruptcy Court to consider confirmation of

First Amended Joint Plan of Reorganization of Z Gallerie, LLC and Z Gallerie Holding Company, LLC Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 255] in the Bankruptcy Case has been scheduled for June 11, 2019, at which time the Merchant will seek entry of an Order confirming the Plan and approving this Agreement (the “Approval Order”).

1 For the avoidance of doubt, following the Effective Date of the Plan, the Post-Effective Date Debtors and the Wind Down Trustee shall have all rights and obligations of the Merchant.


2

NOW, THEREFORE, in consideration of the mutual covenants and agreements

set forth herein and in the APA, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Agent, Merchant and Purchaser hereby agrees as follows:

Section 2. Appointment of Agent/Approval Order.

(a) Effective on the date hereof, but subject to the terms hereof and the entry of the Approval Order, the Merchant hereby appoints Agent, and Agent hereby agrees to serve, as Merchant’s exclusive agent for the limited purpose of conducting the Sale in accordance with the terms and conditions of this Agreement.

(b) In connection with the transactions contemplated by this Agreement and the APA, Merchant shall seek entry of the Approval Order, containing the terms listed in Exhibit 2(b) attached hereto, approving this Agreement and the APA and authorizing Merchant and Agent to conduct the Sale and consummate the other transactions contemplated hereby and by the APA in accordance with the terms hereof and thereof. The Merchant will endevaour to ensure that the Approval Order shall provide, inter alia, as follows (and shall otherwise be in form and substance reasonably acceptable to each of Agent, Purchaser, and Merchant): (i) this Agreement and the APA (and each of the transactions contemplated hereby and thereby, including, without limitation, the Sale) are approved in their entirety; (ii) the Bankruptcy Court finds that Merchant’s decisions to (A) enter into this Agreement and the APA and (B) perform under and make payments required by this Agreement and the APA are reasonable exercises of Merchant's sound business judgment consistent with its fiduciary duties and are in the best interests of the Merchant, its estate, its creditors, and other parties in interest; (iii) Merchant, Purchaser, and Agent shall be authorized to take any and all actions as may be necessary or desirable to implement this Agreement and the APA and each of the transactions contemplated hereby and thereby; (iv) Agent shall be entitled to sell all Merchandise, Additional Agent Merchandise, and Store Owned FF&E hereunder free and clear of all liens, claims, interests, or encumbrances thereon (including, without limitation, any liens in favor of any secured creditors of Merchant, with any liens, claims, interests or encumbrances encumbering all or any portion of the Merchandise, Additional Agent Merchandise or Store Owned FF&E, the Proceeds (as defined below) or any proceeds of any of the foregoing attaching only to the Guaranteed Amount and other amounts to be received by Purchaser under this Agreement; (v) Agent shall have the right to use the Stores and the Distribution Centers and all related Store and Distribution Centers services, furniture, fixtures, equipment and other assets of the Merchant as designated hereunder for the purpose of conducting the Sale, free of any interference from any entity or person, subject to compliance with the Sale Guidelines (as defined below and solely with respect to the Stores) and the Approval Order; (vi) except as otherwise agreed between Agent and Purchaser or pursuant to any applicable Side Letter, Agent, as agent for Merchant, is authorized to conduct sales pursuant to the store closing order [Docket No. 192] entered by the court; (vii) except as otherwise agreed between Agent and Merchant, Purchaser and Agent shall be granted a limited royalty-free license and right to use until the Sale Termination Date the trademarks, trade names, logos, e-mail lists, mailing lists, customer lists, websites, URLs, domain names, and social media sites (including, without limitation, Facebook and Twitter) relating to and used in connection with the operation of the Stores (notwithstanding that any of the foregoing has been or is acquired by Purchaser pursuant to the APA) solely for the purposes of advertising the Sale, selling Merchandise, Additional Agent Merchandise, and Store Owned FF&E and otherwise conducting the Sale in accordance with the terms of the Agreement;; (vii) all utilities, landlords, creditors, and other interested parties (including, without limitation, internet service providers and website hosting and servicing providers) and all persons


3

acting for or on their behalf shall not interfere with or otherwise impede the conduct of the Sale, or institute any action in any court (other than in the Bankruptcy Court) or before any administrative body which in any way directly or indirectly interferes with or obstructs or impedes the conduct or advertising of the Sale; (vi) the Bankruptcy Court shall retain jurisdiction over all parties to this Agreement and the APA (including, without limitation, any secured creditors of Merchant) to enforce this Agreement and the APA; (x) Agent shall not be the successor to Merchant or any predecessor or affiliate of Merchant and Agent will not assume, or in any way be liable or responsible for, any claim or liability, whether known or unknown, whether asserted or unasserted, whether accrued or unaccrued, whether contingent or not, whether at law or in equity or otherwise, whether existing on the date hereof or arising thereafter and whether relating to or arising out of Merchant’s business, the Merchandise or otherwise, other than as expressly provided for in this Agreement or the APA; (xi) [Agent shall be authorized to include Additional Agent Merchandise in the Sale]; (xii) all financial obligations pursuant to this Agreement with respect to proceeds of the Sales of the Initial Guaranty Payment shall be satisfied by and between Agent and Purchaser with no recourse to the Merchant; (xiii) each of Agent and Purchaser shall be granted a valid, binding, enforceable, and perfected security interest as provided for in Section 15 hereof (without the necessity of filing financing statements to perfect such security interest); (xiv) the Bankruptcy Court finds that time is of the essence in effectuating this Agreement and the APA and proceeding with the Sale at the Stores uninterrupted; (xv) the Bankruptcy Court finds that this Agreement and the APA were negotiated in good faith and at arms’ length between the Merchant, Purchaser and Agent and that Agent is entitled to the protection of section 363(m) of the Bankruptcy Code; (xvi) the Bankruptcy Court finds that Agent’s performance under this Agreement and the APA will be, and payment of the Guaranteed Amount and any other amounts payable by Agent to Purchaser under this Agreement and the APA will be made, in good faith and for valid business purposes and uses, as a consequence of which Agent is entitled to the protection and benefits of sections 363(m) and 364(e) of the Bankruptcy Code; (xvii) in the event any of the provisions of the Approval Order are modified, amended, or vacated by a subsequent order of the Bankruptcy Court or any other court, Agent shall be entitled to the protections provided in Bankruptcy Code sections 363(m) and 364(e) and, no such appeal, modification, amendment, or vacatur shall affect the validity and enforceability of the sale or the liens or priority authorized or created under this Agreement, the APA or the Approval Order; (xviii) (A) the terms of this Agreement and the APA shall be binding on any trustee appointed for the Merchant under any provision of the Bankruptcy Code, whether the Bankruptcy Case of the Merchant is proceeding under Chapter 7 or Chapter 11 of the Bankruptcy Code (the “Trustee”); (B) any such Trustee shall be authorized and directed to operate the business of Merchant to the fullest extent necessary to permit compliance with the terms of this Agreement and the APA; and (C) Agent and any such Trustee shall be authorized to perform under this Agreement and the APA upon the appointment of a Trustee without the need for further order of the Bankruptcy Court; (xix) the application of any automatic stay of enforcement of the Approval Order is waived; (xx) Agent shall be entitled to be heard on all issues in the Bankruptcy Case related to this Agreement and the APA (to the extent related to this Agreement) or the transactions contemplated hereby and thereby; (xxi) nothing contained in this Agreement and none of Agent’s actions taken in respect of this Agreement and the APA or the transactions contemplated hereby and thereby shall be deemed to constitute an assumption by Agent of any of Merchant’s or Purchaser’s obligations relating to any of Merchant’s employees (except for Agent’s obligations to pay Expenses), nor shall Agent become liable under any collective bargaining or employment agreement or be deemed a joint or successor employer with respect to such employees; (xxii) Merchant shall retain sufficient funds as provided for and agreed to by Purchaser in the APA and set forth in the Planto enable Merchant to fully satisfy and perform its obligations under this Agreement and the APA and Merchant shall be authorized and directed to use those funds to fully satisfy and perform its obligations under this Agreement and the APA; provided that to the extent such applicable escrow cannot fully satisfy Merchant’s obligations, Agent shall only


4

seek any incremental unperformed obligations from Purchaser; (xxiii) during the Sale Term applicable to any Store or the Distribution Center and for purposes of conducting the Sale at such Store or the Distribution Center, (A) Agent shall have the right to the unencumbered use and occupancy of, and peaceful and quiet possession of, such Store or the Distribution Center and the assets currently located at such Store or the Distribution Center, in each case subject to Merchant’s or Purchaser’s rights and entitlement to use the same, and the services provided at such Store to the extent Merchant is entitled to such services and (B) Merchant shall not assign, reject, terminate, or vacate any lease relating to any such Store where such assignment, rejection, termination, or vacatur would have an effective date on or prior to the applicable Sale Termination Date or Vacate Date for such Store; (xxiv) so long as the Sale is conducted in accordance with the Sale Guidelines and the Approval Order and in a safe and professional manner, Agent shall be deemed to be in compliance with any Applicable General Laws.

(c) Merchant shall use reasonable best efforts to obtain entry of the Approval Order on or prior to June 12, 2019 (the “Approval Order Deadline”).

Section 3. Consideration to Merchant and Agent.

3.1 Payments to Purchaser.

(a) As a guaranty of Agent’s performance hereunder, Agent guarantees that Purchaser shall receive a payment of 90% (the “Guaranteed Percentage”) of the aggregate Cost Value of the Merchandise (the “Guaranteed Amount”). In the event that the Cost Value of Merchandise included in the Sale is less than [$4.2 million],2 than the Guaranteed Amount shall be reduced by one dollar ($1) for each dollar of Cost Value of Merchandise below [$4.2 million]. Notwithstanding anything to the contrary in this Agreement, the Cost Value of the Merchandise cannot exceed [$5.2 million], unless otherwise agreed by Agent. [The above figures are based on [$4.2 million] of Cost Value in 27 stores plus [$1 million] of Cost Value from the Distribution Centers]. For the avoidance of doubt, any liability on account of the dollar for dollar reduction shall be borne by Purchaser.

The Agent shall pay to Purchaser the Guaranteed Amount (if any) in the manner and at the times specified in Section 3.3. The Guaranteed Amount will be calculated based on taking the Guaranteed Percentage of the aggregate Cost Value of the Merchandise as determined by (i) the final certified report of the Inventory Taking Service after verification and reconciliation thereof by Agent, Merchant, and Purchaser; (ii) the aggregated Cost Value of the Merchandise subject to Gross Rings (as calculated pursuant to Section 5.1); and (iii) any adjustments to Cost Value as expressly contemplated by this Agreement.

3.2 Compensation to Agent.

(a) After Proceeds are used to repay Agent for amounts paid on account of the

Guaranteed Amount and to pay Expenses, all remaining Proceeds shall be paid to Agent (as (“Agent’s Fee”).

2 NTD: $4.2 million of inventory is based on 27 stores; to be adjusted for actual number of stores


5

(b) To the extent that there is Merchandise remaining at the Sale Termination Date (the “Remaining Merchandise”), and subject to Agent’s performance of its material obligations under this Agreement, such Remaining Merchandise shall, solely to the extent requested by the Agent in its sole discretion, be deemed transferred to Agent free and clear of all liens, claims, interests, and encumbrances of any kind or nature (including, without limitation, any liens in favor of any third parties or secured creditors of the Merchant). Agent and its affiliates shall be authorized to sell or otherwise dispose of the Remaining Merchandise with all logos, brand names, and other intellectual property on the Merchandise removed. The gross proceeds received by such Agent from any such disposition (net of applicable Sales Taxes) shall constitute Proceeds hereunder.

3.3 Proceeds; Time of Payments; Control of Proceeds.

(a) For purposes of this Agreement, “Proceeds” shall mean the aggregate of

(a) the total amount (in dollars) of all sales of Merchandise made under this Agreement and all service revenue received by Merchant, in each case during the Sale Term and exclusive of Sales Taxes; (b) all proceeds of Merchant’s insurance for loss or damage to Merchandise arising from events occurring during the Sale Term; (c) all amounts received from customers or other third parties on account of postage, courier, overnight mail or other shipping charges related to the delivery of Merchandise; (d) any and all proceeds received by Agent from the disposition of Remaining Merchandise (exclusive of Sales Taxes); and (e) all of the FF&E Proceeds. For the avoidance of doubt: (1) proceeds from the sales at the Stores for periods prior to the Sale Commencement Date; (2) all proceeds from the sale of Merchant’s Consignment Goods pursuant to Section 5.4 hereof; (3) all proceeds from the sale of Additional Agent Merchandise pursuant to Section 8.9 hereof; (4) all proceeds of Merchant’s insurance for loss or damage to Merchandise arising from events occurring prior to the Sale Commencement Date; (5) all payments made by Agent on account of the Guaranteed Amount and Expenses ; (6) all proceeds on account of the sale or disposition of the FF&E located at the Atlanta Distribution Center, shall, in each case, not constitute “Proceeds” hereunder.

(b) On the Sale Commencement Date, Agent shall pay (by wire transfer to an account designated in writing by Purchaser (“Purchaser’s Account”)) an aggregate amount (the “Initial Guaranty Payment”) equal to ninety-percent (90%) of the Guaranteed Amount with respect to the Merchandise located at the Stores (and not the Distribution Centers). Within one week after the Weekly Sale Reconciliation that references the receipt at the Stores or by a customer of Distribution Center Merchandise, Agent shall pay an amount equal to ninety percent (90%) of the Guaranteed Amount with respect to such Merchandise delivered during the period subject to the applicable Weekly Sale Reconciliation. The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the Purchaser’s Account on the tenth (10th) business day following the issuance of the final report of the aggregate Cost Value of the Merchandise (in the Stores) included in the Sale by the Inventory Taking Service, after review, reconciliation and mutual written verification thereof by Agent and Purchaser (the “Final Inventory Report” with the date of completion of such reconciliation and issuance of such Final Inventory Report to be referred to as the “Inventory Reconciliation Date”). To the extent that the Guaranteed Amount has not been paid in full by the date of the Final Reconciliation, Agent shall pay the unpaid portion of the Guaranteed Amount to Purchaser as part of the Final Reconciliation. In the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, Purchaser shall pay to Agent the amount by which such sum exceeds the Guaranteed Amount on the second business day following the issuance of the Final Inventory Report.


6

(c) All Proceeds shall be controlled by Agent in the manner provided for below:

(i) Agent may (but shall not be required to) establish its own accounts (including without limitation credit card accounts and systems), dedicated solely for the deposit of the Proceeds (including, without limitation, credit card Proceeds) and other amounts contemplated by this Agreement and the disbursement of amounts payable to Agent hereunder (the “Agency Accounts”), and Merchant shall promptly, upon Agent’s reasonable request, execute and deliver all necessary documents to open and maintain the Agency Accounts; provided, however, Agent shall have the right, in its sole and absolute discretion, to continue to use Merchant’s Designated Deposit Accounts (as defined below) as the Agency Accounts in which case Merchant’s Designated Deposit Accounts shall be deemed to be Agency Accounts. Agent shall exercise sole signatory authority and control with respect to the Agency Accounts; provided that Merchant shall retain sole signatory authority and control over all of Merchant’s Designated Deposit Accounts notwithstanding Agent’s designation thereof as Agency Accounts. The Agency Accounts shall be dedicated solely to the deposit of Proceeds (including, without limitation, credit card Proceeds) and other amounts contemplated by this Agreement and the distribution of amounts payable hereunder. Upon request, Agent shall deliver to Merchant copies of all bank statements and other information relating to such accounts; provided that, in the event Agent elects to continue to use Merchant’s Designated Deposit Accounts as the Agency Accounts, Merchant shall deliver to Agent copies of all bank statements and other information relating to such accounts to enable Agent to track and trace deposited funds that constitute Proceeds (including, without limitation, credit card Proceeds) and other amounts contemplated by this Agreement. Merchant shall not be responsible for, and Agent shall pay as an Expense hereunder, all bank fees and charges, including wire transfer charges, related to the Sale with respect to the Agency Accounts (including any such bank fees and charges, including wire transfer charges, related to the Sale with respect to any Merchant Designated Deposit Account that is designated by Agent as an Agency Account), whether received during or after the Sale Term. Upon Agent’s notice to Merchant of Agent’s designation of the Agency Accounts (other than Merchant’s Designated Deposit Accounts), all Proceeds of the Sale (including, without limitation, credit card Proceeds) and other amounts contemplated by this Agreement shall be deposited into the Agency Accounts.

(ii) Agent shall have the right to use Merchant’s credit card facilities,

including Merchant’s credit card terminals and processor(s), credit card processor coding, Merchant’s identification number(s) and existing bank accounts for credit card transactions relating solely to the Sale and for processing transactions relating to Additional Agent Merchandise, and Store Owned FF&E. In the event that Agent elects to use Merchant’s credit card facilities, Merchant shall process credit card transactions on behalf of Agent and for Agent’s account, applying customary practices and procedures. Without limiting the foregoing, Merchant shall cooperate with Agent to download data from all credit card terminals each day during the Sale Term to effect settlement with Merchant’s credit card processor(s), and shall take such other actions necessary to process credit card transactions on behalf of Agent under Merchant’s identification number(s). At Agent’s request, Merchant shall cooperate with Agent to establish Merchant’s identification numbers under Agent’s name to enable Agent to process all such credit card Proceeds (and proceeds from Additional Agent Merchandise, Store Owned FF&E) for Agent’s account. Merchant shall not be responsible for, and Agent shall pay as an Expense hereunder, all credit card fees, charges, and chargebacks related to the Sale, whether received during or after the Sale Term. Agent shall not be responsible for, as an Expense or otherwise, (i) any credit card fees, charges, or chargebacks that do not relate to the Sale, whether received prior to, during or after the Sale Term or (ii) any holdbacks against credit card Proceeds (and proceeds from Additional Agent Merchandise, and Store Owned FF&E) implemented by any applicable


7

credit card company.

(iii) Unless and until Agent establishes its own Agency Accounts (other than Merchant’s Designated Deposit Accounts), all Proceeds (including, without limitation, credit card Proceeds) and other amounts contemplated by this Agreement shall be collected by Merchant and deposited on a daily basis into depository accounts designated by, owned and in the name of, Merchant for the Stores, which accounts shall be designated solely for the deposit of Proceeds (including, without limitation, credit card Proceeds) and other amounts contemplated by this Agreement, and the disbursement of amounts payable to or by Agent hereunder (the “Designated Deposit Accounts”). The Designated Deposit Accounts shall be cash collateral accounts, with all cash, credit card payments, checks, and similar items of payment, deposits and any other amounts in such accounts being Proceeds or other amounts contemplated hereunder, and Merchant hereby grants to Agent a senior security interest in each Designated Deposit Account and all Proceeds (including, without limitation, credit card Proceeds) and other amounts contemplated by this Agreement in such accounts from and after the Sale Commencement Date, which security interest shall be subject to the terms set forth in Section 15. If, notwithstanding the provisions of this Section, Merchant, or any secured creditor of Merchant receives or otherwise has dominion over or control of any Proceeds, or other amounts due to Agent (including proceeds from the sale of Additional Agent Merchandise, and Store Owned FF&E), Merchant, or any secured creditor of Merchant, as applicable, shall hold the same and other amounts in trust for Agent, and shall promptly deposit such Proceeds or other amounts due Agent hereunder in a Designated Deposit Account or as otherwise instructed by Agent.

(iv) Following payment of the Initial Guaranty Payment, on each business day Merchant shall reconcile with Agent, with respect to the Stores, the amount of, and, shall promptly pay to Agent by wire transfer of immediately available funds, all funds attributable to Proceeds (including, without limitation, credit card Proceeds) of Agent, as applicable or other amounts property of or payable to Agent hereunder deposited into the applicable Designated Deposit Accounts for the prior day(s) without any offset or netting of Expenses or other amounts that may be due to Merchant. Agent shall, within a reasonable period of time after the date of each such payment by Merchant, notify Merchant, or any secured creditor of Agent of any shortfall in such payment setting forth the amount and calculation thereof in reasonable detail, in which case, Merchant shall promptly pay to Purchaser or Agent, as applicable, funds in the amount of such shortfall.

(d)

Section 4. Expenses of the Sale.

4.1 Expenses. As used herein, “Expenses” shall mean the operating expenses of the Sale which arise during the Sale Term (except to the extent expressly stated below to include expenses regardless of whether incurred prior to the Sale Commencement Date) and are attributable to the Sale, limited to the following:

(a) actual payroll (including wages, commissions and overtime pay) with respect to all Store-level Retained Employees used in connection with conducting the Sale for actual days/hours worked at a Store during the Sale Term (including hours worked during the Inventory Taking);


8

(b) actual amounts payable by Merchant for benefits (including FICA, unemployment taxes, workers’ compensation and healthcare insurance, but excluding Excluded Payroll Benefits) for Store-level Retained Employees used in the Sale (such amounts, the “Payroll Benefits Expenses”);

(c) any Occupancy Expenses categorized on Exhibit 4.1(c) that come due

through July 31, 2019 or such later date as the Store Closings remain in process;

(d) Retention Bonuses for Retained Employees, as provided for in Section 9.4 below;

(e) regardless of whether incurred prior to the Sale Commencement Date, promotional costs including, without limitation, email blasts, television, and any other advertising and/or direct mail attributable to the Sale and ordered or requested by Purchaser or Agent;

(f) regardless of whether incurred prior to the Sale Commencement Date, the

costs and expenses associated with all signage, banners, sign walkers, and interior and exterior signs that are produced for the Sale;

(g) credit card fees, bank card fees, chargebacks and credit/bank card

discounts with respect to Merchandise, and Additional Agent Merchandise, sold in the Sale;

(h) bank service charges (for Store, corporate accounts, and Agency Accounts), check guarantee fees, and bad check expenses to the extent attributable to the Sale;

(i) costs for additional Supplies at the Stores necessary to conduct the Sale

requested by Agent;

(j) all fees and charges required to comply with Applicable General Laws and, unless and until entry of the Approval Order, Liquidation Sale Laws in connection with the Sale as agreed to by Agent;

(k) Store cash theft and other store cash shortfalls in the registers;

(l) regardless of whether incurred prior to the Sale Commencement Date, all costs and expenses associated with Agent, on-site supervision of the Stores and Distribution Centers, including (but not limited to) any and all fees, wages, bonuses, taxes, third party payroll costs and expenses, and deferred compensation of Agent field personnel, travel to, from or between the Stores, and between stores and the Distribution Centers, the Headquarters and the Call Center, and costs and expenses relating thereto (including reasonable and documented corporate travel to monitor and manage the Sale);

(m) postage, courier and overnight mail charges requested by Agent to the

extent relating to the Sale, including all amounts incurred in respect of postage, courier, overnight mail or other shipping charges related to the delivery of Merchandise to customers originating from the Stores;

(n) 100 % of the third-party fees and costs of the Inventory Taking;


9

(o) regardless of whether incurred prior to the Sale Commencement Date, Agent reasonable out-of-pocket costs and expenses, including, without limitation, (i) legal fees and expenses; (ii) Agent’s actual cost of capital (including, without limitation, expenses and any structuring fees, arrangement fees, upfront fees, other fees, interest and other amounts payable to Agent’s lenders) and (iii) Agent’s insurance costs;

(p) third party payroll processing expenses associated with the Sale;

(q) costs of transfers initiated by Agent of Merchandise between and among

the Stores during the Sale Term, including delivery and freight costs, it being understood that Agent, as applicable, shall be responsible for coordinating such transfer of Merchandise, subject, however, to the provisions of Section 4.3 below;

(r) Central Service Expenses equal to $75,000.00 per week (credited or paid to Merchant) for the Sale Term (prorated for partial weeks) with respect to the Stores so long as Agent shall not have vacated all of the Stores (which amount shall not be prorated on account of Store Closings);

(s) costs and expenses associated with temporary labor requested or obtained by Agent for purposes of the Sale (provided any temporary labor shall not be included in Merchant’s payroll system);

(t) the actual costs and expenses of Agent providing such additional services

as Agent reasonably deems appropriate for the Sale.

Notwithstanding anything herein to the contrary, to the extent that any Expense category listed in Section 4.1 is also an Occupancy Expense, the caps set forth in Section 4.1(c) shall control and such Expenses shall not be double counted. There will be no double counting or payment of Expenses to the extent that Expenses appear or are contained in more than one Expense category.

As used herein, the following terms have the following respective meanings:

(i) “Central Service Expenses” means costs and expenses for

Merchant and/or Purchaser’s central administrative services necessary for the conduct and support of the Sale, including, but not limited to, inventory control systems, payroll systems, MIS and POS services, cash and inventory reconciliation, data processing and reporting, email preparation and distribution, information technology and e-commerce site updates and maintenance, accounting, office facilities at Merchant’s central office, central administrative services and personnel to process and perform sales audit, banking, and other normal course administrative services customarily provided to or for the benefit of operating the Stores, hosting and maintaining Merchant’s website (including, without limitation, actual costs and expenses associated with maintaining the Merchant’s website or social media accounts, to the extent Purchaser or Agent requests the usage of the website or applicable social media account giving rise to such costs and expenses) and such other central office services reasonably necessary (in the reasonable judgment of Agent) for the Sale, (collectively, “Central Services”). With the exception of the Central Services fees included as Expenses in Section 4.1 ( ) above, Purchaser shall pay for all Central Service Expenses.

(ii) “Distribution Center Expenses” means all costs and expenses of

operating the Distribution Centers, including, but not limited to, use and occupancy expenses,


10

employee payroll and other obligations, and/or processing, transferring, consolidating, shipping, and/or delivering goods within or from the Distribution Centers to the Stores or between the Distribution Centers; provided that Central Services Expenses shall not constitute Distribution Center Expenses.

(iii) “Excluded Payroll Benefits” means (i) the following benefits

arising, accruing or attributable to the period prior to, during, or after the Sale Term: (w) vacation days or vacation pay, (x) sick days or sick leave or any other form of paid time off, (y) maternity leave or other leaves of absence and (z) ERISA coverage and similar contributions and/or (ii) any other benefits in excess of the Payroll Benefits Cap, including, without limitation, any payments due under the WARN Act.

(iv) “Occupancy Expenses” means, with respect to the Stores, base

rent, HVAC, utilities, CAM, storage costs, real estate and use taxes, other taxes and licensing fees, Merchant’s association dues and expenses, landlord promotional fees, utilities expenses, point-of-sale systems maintenance, routine repairs, building maintenance, trash and snow removal, housekeeping and cleaning expenses, pest control services, local and long- distance telephone and internet/wifi expenses, security (including, without limitation, security systems, courier and guard service, building alarm service and alarm service maintenance), rental for furniture, fixtures and equipment and any other categories of expenses at the Stores set forth on Exhibit 4.1(c) attached hereto.

(v) “Third Party” means, with reference to any Expenses to be paid to

a Third Party, a party which is not affiliated with or related to the Merchant.

(vi) Notwithstanding any other provision of this Agreement to the contrary, “Expenses” shall not include: (i) Excluded Payroll Benefits; (ii) other than as provided in Section 4.1(r), Central Service Expenses or any expenses of any kind relating to or arising from Merchant’s corporate offices, (iii) other than as provided in Section 4.1(s), Distribution Center Expenses or any other expenses of any kind relating to or arising from the Distribution Centers including, without limitation, operating and shipping expenditures; and/or (v) any other costs, expenses or liabilities payable by Merchant or Purchaser not expressly provided for herein. All costs or expenses related to the Sale or the designation rights granted to Purchaser in accordance with the terms of the APA not included as Expenses (or otherwise designated as an obligation of Agent or Purchaser hereunder or as an obligation of Purchaser pursuant to the APA) shall be paid by Purchaser. Purchaser shall pay the foregoing amounts to the extent necessary for the conduct of the Sale.

4.2 Payment of Expenses.

(a) Subject to and only upon entry of the Approval Order, Agent, as applicable,

shall be responsible for the payment of all Expenses (out of Proceeds or from Agent’s own accounts if and to the extent there are insufficient Proceeds, or from Purchasers own accounts/funds if the Expense is the responsibility of Purchaser). All Expenses incurred during each week of the Sale (i.e. Sunday through Saturday) shall be paid by Agent, as applicable, to or on behalf of Merchant. To the extent Agent requires Merchant to pay any Expenses, Merchant will deposit sufficient anticipated funds into the Store Closing Account at least three business days prior to the Expense coming due and, to the extent such amounts are insufficient to cover actual Expenses paid by Merchant (as reconciled on the Weekly Sale Reconciliation), Merchant will replenish the Store Closing Account to cover all such actual Expenses; provided, however,


11

in the event that the actual amount of an Expense is unavailable on the date of the reconciliation (such as payroll), Merchant and Agent, as applicable, shall agree to an estimate of such amounts, which amounts will be reconciled once the actual amount of such Expense becomes available. Agent and/or Merchant may review or audit the Expenses at any time.

4.3 Distribution Centers

From and after the date of this Agreement, Agent shall be responsible for allocating

and designating the shipment of Merchandise from the Distribution Centers to customers of the Stores and to the Stores (which operating and shipment costs relating to the Distribution Centers and the Merchandise shall be the responsibility of Purchaser); provided that Purchaser and Agent shall cooperate with each other and shall mutually agree upon a schedule and allocation to the Stores and to customers purchasing from the Stores of the Merchandise located at the Distribution Centers.

Section 5. Gross Rings; Merchandise.

5.1 Inventory Taking.

(a) Subject to the provisions of this paragraph the parties have agreed to conduct an actual physical inventory of the Merchandise at each of the Stores and to use the books and records of Merchant, as of the Sale Commencement Date, to determine the aggregate Cost Value as of the Sale Commencement Date of the Merchandise located at the Stores. In order to test the validity of the aggregate Cost Value of the Merchandise as reflected in the Merchandise File commencing on the Sale Commencement Date, Merchant and Agent shall use commercially reasonable efforts to cause to be taken a SKU level Cost Value physical inventory of the Merchandise located in the Stores (collectively, the “Inventory Taking”), which Inventory Taking shall be completed in each of the Stores as soon as practicable (the date of the Inventory Taking at each Store being the “Inventory Date” for each such Store), but in any event no later than fourteen (14) days after the Sale Commencement Date (subject to the availability of the Inventory Taking Service). Merchant and Agent shall jointly employ WIS or other mutually agreed upon national inventory taking service (the “Inventory Taking Service”) to conduct the Inventory Taking. The Inventory Taking shall be conducted in accordance with customary procedures and instructions, which shall be reasonably satisfactory to Agent, and Purchaser (the “Inventory Taking Instructions”) in accordance with the procedures set forth in Exhibit 5.1(a) attached hereto.

(b) The results of the Inventory Taking at the Stores (as defined below), if any (the “Store Results”) shall be used in conjunction with any other analysis prepared by the Merchant to determine any adjustment as may be required to the calculation of the aggregate Cost Value of the Merchandise located in the Stores on the Sale Commencement Date, as follows:

(i) the aggregate Cost Value of the Merchandise at the Stores (collectively, the “Inventoried Stores”) shall be the actual Store Results for the Inventoried Stores, as adjusted by Gross Rings plus any shrink percentage as provided herein for the period between the Sale Commencement Date and the applicable Inventory Date (the “Gross Rings Period”); and

(ii) for purposes of calculating the aggregate Cost Value of the Merchandise at the Stores that do not constitute Inventoried Stores (the “Non-Inventoried Stores”), the actual Test Store Results at the Inventoried Stores, shall be compared to the “roll-forward” Cost Value of the Merchandise as reflected in the Merchandise File at the Inventoried Stores as of the Sale Commencement Date (i.e., Gross Rings plus any shrink percentage provided


12

for herein) and receipts at each of the Stores during the Gross Rings Period) (the “Adjusted Book Inventory”), and an average variance shall be calculated (the “Variance”).

The Variance shall be applied to adjust the Adjusted Book Inventory of the Merchandise located at the Non-Inventoried Stores; provided, however, for the purposes of calculating the Variance, the Inventoried Stores having the results from the [twenty (20)] Stores with highest and lowest variance percentage shall be excluded. In the event that the initial Variance at the Inventoried Stores is greater than three percent (3%) of the Cost Value of the Merchandise as reflected in the Merchandise File in the Inventoried Stores, then either Merchant or Agent shall have the right to request an Inventory Taking at additional Stores (the “Additional Test Stores”), to be mutually and reasonably agreed upon by the parties acting in good faith (the “Additional Inventory Taking”), to establish whether an adjustment to the Variance is required, with the costs and fees associated with the Additional Inventory Taking to be paid by the party requesting such Additional Inventory Taking.

(c) As an Expense, in accordance with Section 4.1, Agent shall be responsible for fifty percent (50%) of cost of the Inventory Taking Service. Purchaser shall be responsible for the remaining fifty percent (50%). Except as provided in the immediately preceding two sentences, in Section 4.1, or as otherwise provided herein, Purchaser and Agent shall each bear their respective costs and expenses relative to the Inventory Taking,. Merchant, Purchaser and Agent may each have representatives present during the Inventory Taking, and shall each have the right to review and verify the listing and tabulation of the Inventory Taking Service. Merchant, Agent and Purchaser agree[s] that during the conduct of the Inventory Taking, the applicable Store shall be closed to the public, and no sales or other transactions shall be conducted within the applicable Store. The Inventory Taking shall not take place on Saturdays, Sundays and federal holidays. Merchant, Purchaser and Agent further agree that until the Inventory Taking in a particular Store is completed, neither Merchant, Purchaser nor Agent shall: (i) move Merchandise within or about the Store so as to make any such items unavailable for counting as part of the Inventory Taking; (ii) remove or add any hang tags, price tickets, inventory control tags affixed to any Merchandise or any other kind of in-store pricing signage within the Store; (iii) transfer any Merchandise to or from that Store (other than the Distribution Center Merchandise, which, in each case, is distinctly tagged or otherwise marked as such or recorded in Agent’s transfer log); or (iv) deliver any Additional Agent Merchandise to such Store (unless distinctly tagged or otherwise marked as such or recorded in Agent’s transfer log). Merchant and Purchaser agree[s] to cooperate with Agent to conduct the Inventory Taking (including without limitation by making available to Agent information relating to sales, units, costs and Cost Value and making available to Agent, Merchant’s and Purchaser’s books, records, work papers and personnel to the extent reasonably necessary to calculate the Cost Value of the Merchandise). Each Store will be closed during the Inventory Taking; provided, however, that the parties agree that the Inventory Taking will commence at a time that will minimize the number of hours that the Stores will be closed for business. The Inventory Taking, including, but not limited to the Final Inventory Report, shall be reviewed, reconciled, and mutually verified by the Merchant, Agent and Purchaser in writing as soon as practicable following the Inventory Taking.

(d) At each Store, for the period from the Sale Commencement Date until the Inventory Date for such Store, Agent and Merchant shall jointly keep (i) a strict count of gross register receipts less applicable Sales Taxes but excluding any prevailing discounts (“Gross Rings”), (ii) cash reports of sales within such Store; and (iii) a strict count of all Returned Merchandise. Register receipts shall show for each item sold the Cost Value for such item for such item and the markdown or discount, if any, specifically granted by Agent in connection with such Sale. Any Merchandise included in the Sale using the Gross Rings method shall be included in Merchandise


13

using the actual Cost Value of the Merchandise sold plus 1.0% of the aggregate Cost Value of Merchandise sold during the Gross Rings Period. All such records and reports shall be made available to Agent and Purchaser and Merchant during regular business hours upon reasonable notice. Any Merchandise included in the Sale using the Gross Rings method shall be included as Merchandise.

(e) Distribution Center Merchandise and shall be counted as such merchandise leaves the Distribution Centers. Distribution Center Merchandise received at a Store after the Inventory Date for a Store shall be counted and reconciled within five (5) business days after receipt of such goods at such Store in accordance with the procedures set forth below. Absent prior notification and agreement of Merchant, failure to report within such fifteen (15) business day period any variance between the received shipment from the applicable shipping documents (each a “Shipping Variance”), shall result in such receipts being deemed confirmed received consistent with the applicable shipping documents. Merchant shall have five (5) business days to verify a timely issued Shipping Variance (each a “Shipping Variance Response”), and absent prior notification and agreement of Agent, failure to respond to an asserted Shipping Variance within such five (5) business day period shall result in such Shipping Variance being deemed valid. If Merchant timely issues a Shipping Variance Response that disputes the asserted Shipping Variance, Merchant and Agent shall cooperate with each other to verify and resolve such dispute; provided that, in the event Merchant and Agent are unable to resolve such dispute within ten (10) business days from Agent’s receipt of a Shipping Variance Response from Merchant (or such greater period as Merchant and Agent may mutually agree), such dispute shall be resolved by the Bankruptcy Court. Distribution Center Merchandise received at a Store or by a customer (if shipped directly to the customer rather than a Store) prior to the Inventory Date for such Store shall be counted as part of the Inventory Taking or, to the extent sold prior to the Inventory Taking at such location, using Gross Rings.

5.2 Merchandise Subject to This Agreement.

(a) For purposes of this Agreement, “Merchandise” shall mean all (i) new, finished, first quality goods owned by Merchant saleable in the ordinary course of business located at the Stores as of the Sale Commencement Date (including Merchandise subject to Gross Rings), (ii) Defective Merchandise (to the extent Merchant and Agent can mutually agree on the Cost Value applicable thereto and excluding Excluded Defective Merchandise) (iii) Returned Merchandise, subject to Section 8.5 (iv) any product to fulfill a pre-existing customer order that is cancelled prior to deliver (to the extent such product is delivered to Merchant and/or Purchaser, and (v) Distribution Center Merchandise and On-Order Merchandise shipped out from Distribution Centers no later than June 30. Notwithstanding the foregoing, “Merchandise” shall not include: (1) goods which belong to sublessees, licensees, department lessees, or concessionaires of Merchant; (2) goods held by Merchant on memo, on consignment, or as bailee; (3) Excluded Defective Merchandise; (4) furniture, furnishings, trade fixtures, machinery, equipment, office supplies, Supplies, conveyor systems, racking, rolling stock, improvements and other personal property (collectively, “FF&E”) or improvements to real property; provided that Agent shall be permitted to sell Store Owned FF&E as set forth in Section 7 below; (5) Distribution Center Merchandise, or goods in the Distribution Centers shipped out after June 30; (6) Additional Agent Merchandise; and (7) greeting cards, gift cards (third-party or Merchant branded). Notwithstanding anything contained herein or in this Agreement, Merchandise shall not include inventory received for pre-existing customer orders.

(b) As used in this Agreement, the following terms have the respective

meanings set forth below:


14

“Defective Merchandise” means any item of Merchandise which is not new,

finished, first-quality, saleable goods sold in the ordinary course. Examples of Defective Merchandise include but are not limited to goods that are used, damaged, defective, scratched, soiled, ripped, torn, stained, faded, discolored, dented, shopworn, out of box (if normally sold as new in-the-box, but excluding display items which are not otherwise damaged or defective and for which the box, all related packaging and all accompanying directions and warranty information are on hand), missing pieces, mismatched, mismated or near-sized, parts, items typically sold as a set which are incomplete, gift with purchase items.

“Distribution Center Merchandise” means up to [$1 million] in Cost Value

(unless otherwise mutually agreed to by Agent and Purchaser) of all new, finished, first-quality goods owned by Merchant and saleable in the ordinary course of business located at the Distribution Centers, which shall be mostly comprised of items from “Furniture Department 0100”. Agent and Purchaser shall mutually agree on the amount, mix, and shipping destination of the Distribution Center Merchandise.

“Excluded Defective Merchandise” means (a) any item of Defective Merchandise

that is (1) not saleable in the ordinary course because it is so damaged or defective that it cannot reasonably be used for its intended purpose or (2) mismatched, mismated or near-sized, (b) any item of Defective Merchandise for which the parties cannot mutually agree upon a Cost Value, and (c) inventory of any kind or nature, wherever located, that was, is or becomes during the Sale Term subject to a bona fide, credible, written claim of trademark (or other intellectual property) infringement by any third party. Excluded Defective Merchandise shall be identified as such during the Inventory Taking. Excluded Defective Merchandise located in the Stores shall be identified and counted during the Inventory Taking and thereafter removed from the sales floor and segregated. To the extent that goods in the Distribution Centers constitute Excluded Defective Merchandise and such goods arrive at the Stores despite Merchant’s covenant not to ship such goods to the Stores, such goods shall be identified during the Inventory Taking or, to the extent such goods arrive in a Store after the Inventory Date for such Store, such goods shall be reasonably identified by Agent within five (5) business days of receipt of at such Store and thereafter removed from the sales floor and/or segregated.

“Merchandise File” means Merchant’s “2.4.2.5_Inventory On Hand 2019.04.30”

file, together with all updated files received on or prior to the Sale Commencement Date.

5.3 Valuation.

(a) For purposes of this Agreement, except as set forth in Section 5.3(c), (d), (e), and (f), “Cost Value” shall mean, with respect to each item of Merchandise, the lowest cost as reflected in the Merchandise File without including any freight, duties and any other landing costs included therein.

(b) Excluded Goods. Subject to the terms of the APA, Merchant shall retain all responsibility for any goods not included as Merchandise (including for these purposes any Distribution Center Merchandise that does not arrive in the Stores on or prior to the Receipt Deadline). If Purchaser elects at the beginning of the Sale Term, Agent shall accept goods not included as Merchandise hereunder for sale at prices mutually agreed upon by Agent and Purchaser (such goods, “Merchant’s Consignment Goods”). Agent shall retain [20%] of the receipts (net of Sales Taxes) for


15

all sales of Merchant’s Consignment Goods, and Purchaser shall receive 80% of the receipts (net of Sales Taxes) in respect of such sales. Purchaser shall receive its share of the receipts of sales of Merchant’s Consignment Goods on a weekly basis, immediately following the Weekly Sale Reconciliation. If Purchaser does not elect to have Agent sell goods not included as Merchandise or Merchant, [Purchaser] and Agent are unable to agree upon prices, then all such items will be removed by [Purchaser] from the Stores at[ Purchaser’s expense as soon as practicable and shall not be shipped to the Stores or to customers absent Agent’s express written consent. Agent shall have no cost, expense, or responsibility in connection with any goods not included in Merchandise.

Section 6. Sale Term.

6.1 Term. Subject to satisfaction of the conditions precedent set forth in Section 10 hereof (including, without limitation, the entry of the Approval Order), the Sale shall commence at each Store on the first business day following the entry of the Approval Order or such date as as reasonably practiacle, the “Sale Commencement Date”). Agent shall complete the Sale at each Store no later than July 31, 2019 (unless Merchant, Purchaser, and Agent mutually agree to extend such date) (the “Sale Termination Date”, and the period from the Sale Commencement Date to the Sale Termination Date as to each Store being the “Sale Term”).

6.2 Vacating the Store. At the conclusion of the Sale, Agent agrees to leave each Store in “broom clean” condition, ordinary wear and tear excepted, with any personal property or equipment of Agent that was brought to the store to conduct the Sale removed by Agent; provided that Agent may abandon in place at the Store all unsold items of Store Owned FF&E, pursuant to Section 7 below. Agent shall vacate each Store on or before the Sale Termination Date as provided for herein, at which time Agent shall surrender and deliver the Store premises, and Store keys, to Merchant. Agent’s obligations to pay all Expenses for the Stores shall continue until the Sale Termination Date or, if later, the date that Agent vacates the Store in the condition required by this Section 6.2.

6.3 Vacate Notice. Notwithstanding the foregoing, Agent may, in its discretion, earlier terminate the Sale on a Store-by-Store basis upon not less than seven (7) days’ prior written notice (a “Vacate Notice”) to Merchant. . The “Vacate Date” with respect to any Store shall be the later of (i) the date on which Agent actually vacates such Store in accordance with the provisions of Section 6.2, and (ii) the date that is seven (7) days after the date on which a Vacate Notice with respect to such Store is delivered to Merchant.

6.4 Where reference is made in this Section 6 to vacating the Stores, such shall mean vacating the Stores in favor of Merchant, its representatives or assignee and shall not mean vacating possession or disclaimer of lease in favor of the landlord or owner of the Store premises.

Section 7. FF&E.

7.1 Owned FF&E. Merchant hereby represents, warrants, covenants, and agrees

in favor of Agent that all FF&E Owned by Merchant located at the Stores (“Store Owned FF&E”) and FF&E located at the Atlanta Distribution Center may be sold by Agent on Merchant’s behalf, free and clear of all liens, claims, and encumbrances. Agent shall be authorized to sell the Store Owned FF&E and the proceeds of the sale of Store Owned FF&E(net of Sales Taxes, the “Store Owned FF&E Proceeds”) shall be split 50% for Agent and 50% to fund the Store Closing Account.. The FF&E located at the Atlanta Distribution Center may be sold or otherwise disposed by Agent if mutually agreed by Merchant, Purchaser, and Agent. Agent shall be responsible for the payment of


16

all costs and expenses associated with the disposition of Store Owned FF&E.

7.2 Abandonment of FF&E. Agent shall be authorized to abandon any and all sold and unsold (including both Store Owned FF&E and FF&E located at the Atlanta Distribution Center in place without any cost or liability to any party (only pursuant to an applicable Court order). Agent shall have no responsibility whatsoever with respect to any FF&E located at the Stores or the Distribution Centers is not owned by Merchant.

7.3 Representations. Merchant hereby represents to Agent and Purchaser that (i) subject to the Sale Order, all Store Owned FF&E and may be sold by Agent on Merchant’s behalf, free and clear of all claims, liens and encumbrances of any kind and (ii) all such Owned FF&E is devoid of Hazardous Materials. Anything in this Agreement to the contrary notwithstanding, Agent will not have any obligation whatsoever to purchase, sell, make, store, handle, treat, dispose, generate, transport or remove any Hazardous Materials that may be located at the Stores or the Distribution Centers. Agent shall have no liability to any party for any environmental action brought (i) that is related to the storage, handling, treatment, disposition, generation, or transportation of Hazardous Materials, or (ii) in connection with any remedial actions associated therewith or the Stores or at the Distribution Centers. Merchant (and not Agent) shall be solely responsible to remove from the Stores and the Distribution Centers Hazardous Materials. For purposes of this Agreement, the term “Hazardous Materials” means, collectively, any chemical, solid, liquid, gas, or other substance having the characteristics identified in, listed under, or designated pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.A. 9601(14), as a “hazardous substance”, (ii) the Resource Conservation and Recovery Act, 42 U.S.C.A. 6903(5) and 6921, as a “hazardous waste”, or (iii) any other laws, statutes or regulations of a government or political subdivision or agency thereof, as presenting an imminent and substantial danger to the public health or welfare or to the environment or as otherwise requiring special handling, collection, storage, treatment, disposal, or transportation.

Section 8. Conduct of the Sale.

8.1 Rights of Agent. In addition to any other rights granted to Agent elsewhere in this Agreement, Agent shall be permitted to conduct the Sale (x) at the Stores, as a “store closing”, “sale on everything”, “everything must go” or similar-themed sale throughout the Sale Term without compliance with any Liquidation Sale Laws. Agent shall conduct the Sale in the name of and on behalf of the Merchant in a commercially reasonable manner and in compliance with the terms of this Agreement and subject to the Approval Order. Agent is hereby granted a limited royalty-free license and right to use until the Sale Termination Date the trademarks, trade names, logos, e-mail lists, mailing lists, customer lists, websites, URLs, domain names, and social media sites (including, without limitation, Facebook and Twitter) relating to and used in connection with the operation of the Stores (notwithstanding that any of the foregoing has been or is acquired by Purchaser pursuant to the APA) solely for the purposes of advertising the Sale, selling Merchandise, Additional Agent Merchandise and Store Owned FF&E and otherwise conducting the Sale in accordance with the terms of this Agreement. Agent shall conduct the Sale in accordance with the sale guidelines attached hereto as Exhibit 8.1 (the “Sale Guidelines”). In addition to any other rights granted to Agent hereunder in conducting the Sale the Agent, in the exercise of its reasonable discretion shall have the right:

(a) to establish Sale prices and discounts and Store hours;

(b) except as otherwise expressly included as an Expense, to use without charge

during the Sale Term all FF&E, bank accounts, computer hardware and software, existing


17

Supplies, intangible assets (including trademarks, trade names, logos and tax identification numbers), Store keys, case keys, security codes and safe and lock combinations required to gain access to and operate the Stores and the Distribution Centers, and any other assets of the Merchant located at the Stores or the Distribution Centers (whether owned, leased, or licensed);

(c) except as otherwise expressly included as an Expense, (i) to be provided by

Merchant (at no additional cost to Agent) with central office facilities, central administrative services and personnel to process and perform Central Services and provide other central office services reasonably necessary for or incident to the Sale (including, but not limited to, use of Merchant’s central office facilities, central administrative services, and personnel to process payroll, perform MIS, and provide other central office services necessary for the Sale to the extent that such services are normally provided by Merchant in house); (ii) to use reasonably sized offices located at Merchant’s central office facility to effect the Sale (at no additional cost to Agent); and (iii) to use (at no additional cost to Agent) all customer lists, mailing lists, email lists, and web and social networking sites utilized by Merchant in connection with its business (but solely in connection with the Sale and pursuant to such reasonable restrictions requested by Merchant in order for Merchant to comply with its privacy policy and applicable laws governing the use and dissemination of confidential consumer personal data;

(d) except as otherwise agreed between Purchaser and Agent, to establish and implement advertising, signage and promotion programs consistent with the “store closing”, “sale on everything”, “everything must go”, or similar theme and including without limitation by means of media advertising, interior and exterior signs and banners, A-frames, sign walkers and similar signage;

(e) to transfer Merchandise between and among the Stores at Agent’s expense;

provided, however, the Agent shall not transfer Merchandise between and among Stores so as to make the Merchandise unavailable for purposes of the Inventory Taking;

(f) to transfer Merchandise from the Distribution Centers to the Stores or to

customers;

(g) to supplement the Merchandise at the Stores with Additional Agent Merchandise in accordance with Section 8.9 hereof; and

(h) to conduct the Sale in accordance with the Sale Guidelines.

(i) to supplement the Merchandise at the Stores with Additional Agent

Merchandise in accordance with Section 8.9 hereof.

8.2 Terms of Sales to Customers; Final/As Is Sales. All sales of Merchandise at the Stores will be “final sales” and “as is,” and appropriate signage and sales receipts will reflect the same. Agent shall not warrant the Merchandise in any manner, but will, to the extent legally permissible, pass on all manufacturers’ warranties to customers. Except as provided in Section 8.6, all sales will be made only for cash, nationally recognized bank credit and debit cards. Through the date that is thirty (30) days following the Sale Commencement Date, Agent shall accept or honor, if requested by Purchaser, coupons, or other customer loyalty programs, rewards or other discounts that were in effect immediately prior to the Sale Commencement Date (collectively, the “Pre-Sale Customer Rewards Programs”). Purchaser shall fully reimburse Agent in cash for discounts and other amounts incurred in connection with honoring or accepting


18

such Pre-Sale Customer Rewards Programs during such period as part of the weekly sale reconciliation provided for in Section 8.7(a). Agent shall clearly mark all receipts for the Merchandise sold at the Stores during the Sale Term so as to distinguish such Merchandise from the goods sold prior to the Sale Commencement Date. Sales Taxes.

(a) During the Sale Term, all sales, excise, gross receipts and other taxes

attributable to sales of Merchandise, Additional Agent Merchandise, and/or Store Owned FF&E (except to the extent such sales are exempt) as indicated on Merchant’s point of sale equipment (other than taxes on income, but specifically including, without limitation, gross receipts taxes) payable to any taxing authority having jurisdiction (collectively, “Sales Taxes”) shall be added to the sales price of Merchandise, Additional Agent Merchandise, and/or Store Owned FF&E and collected by Agent, on Merchant’s behalf, at the time of sale. All Sales Taxes shall be deposited into a segregated account designated by Merchant and Agent solely for the deposit of such Sales Taxes (the “Sales Taxes Account”). Merchant shall prepare and file all applicable reports and documents required by the applicable taxing authorities, and Merchant shall promptly pay all Sales Taxes from the Sales Taxes Account. Merchant will be given access to the computation of gross receipts for verification of all such tax collections. Provided that Agent performs its responsibilities in accordance with this Section 8.3, Agent shall have no further obligation to the Merchant, any taxing authority, or any other party, and Merchant shall indemnify and hold harmless Agent and its officers, directors, employees, agents, representatives, independent contractors and supervisors (collectively, “Agent Indemnified Parties”) from and against any and all costs, including, but not limited to, reasonable attorneys’ fees, assessments, fines or penalties which Agent or any Agent Indemnified Party sustains or incurs as a result or consequence of the failure by Merchant to promptly pay such taxes to the proper taxing authorities and/or the failure by Merchant to promptly file with such taxing authorities all reports and other documents required by applicable law to be filed with or delivered to such taxing authorities. If Agent fails to perform its responsibilities in accordance with this Section 8.2, and provided Merchant complies with its obligations under this Section 8.2, Agent shall indemnify and hold harmless Merchant from and against any and all costs, including, but not limited to, reasonable attorneys’ fees, assessments, fines or penalties which Merchant sustains or incurs as a result or consequence of the failure by Agent to collect Sales Taxes and/or the failure by Agent to promptly deliver any and all reports and other documents required to enable Merchant to file any requisite returns with such taxing authorities. Notwithstanding the foregoing, however, the procedures of this Section 8.3(a) shall not apply with respect to sales conducted by Purchaser in any capacity other than as agent for Merchant.

(b) Without limiting the generality of Section 8.3(a) hereof, it is hereby agreed

that, as Agent is conducting the Sale solely as agent for the Merchant, various payments that this Agreement contemplates that one party may make to the other party (including the payment by Agent of the Guaranteed Amount) do not represent the sale of tangible personal property and accordingly, are not subject to Sales Taxes.

8.3 Supplies. Agent shall have the right to use, without charge, all existing

supplies located at the Stores and the Distribution Centers, including, without limitation, boxes, bags, paper, twine and similar sales materials (collectively, “Supplies”) (whether such Suppliers are the property of Merchant or Purchaser). In the event that additional Supplies are required in any of the Stores during the Sale, Purchaser agrees to promptly provide the same to Agent, if available, for which Agent shall reimburse the Purchaser at Purchaser’s cost therefor; provided, however, that if reasonably requested by Agent, Purchaser shall assist Agent in obtaining supplies, at Agent’s expense, from Purchaser’s vendors at Purchaser’s usual and customary costs


19

for such supplies. 8.4 Returns of Merchandise. Agent shall accept returns of goods sold by

Merchant prior to the Sale Commencement Date (“Returned Merchandise”) for thirty (30) days following the Sale Commencement Date, provided that such return is in compliance with Merchant’s return policy in effect immediately prior to the Sale Commencement Date. If such Returned Merchandise is otherwise “Merchandise” it shall be included in the Sale at its applicable Cost Value multiplied by a factor equal to the difference of 100% minus the then prevailing Sale discount on the date of the return. Subject to Merchant’s reimbursement to Agent in accordance with the terms of this Section 8.5, the aggregate Cost Value of the Merchandise shall be increased by the adjusted Cost Value of any Returned Merchandise included in Merchandise (determined in accordance with this Section 8.5) but shall not be taken into account for purposes of Sections 3.1(b) and (c). If the Returned Merchandise is not first quality goods, Purchaser and Agent shall negotiate in good faith to determine an appropriate Cost Value applicable to such Returned Merchandise for purposes of determining the Cost Value attributable thereto. In addition, Purchaser shall reimburse Agent in cash for any refunds or credits Agent is required to issue to customers in respect of any Returned Merchandise during each Weekly Sale Reconciliation provided for in Section 8.7. Any increases in the Guaranteed Amount as a result of Returned Merchandise shall be paid by Agent as part of the Final Reconciliation. All returns must be noted and described in a mutually agreeable Returned Merchandise log on a weekly basis during the Sale unless Merchant and Agent agree that Merchant’s POS or other applicable systems can account for returns of goods.

8.5 Gift Certificates. Through the date that is thirty (30) days following the

Sale Commencement Date, Agent shall accept Merchant’s gift certificates, gift cards, return credits, and similar merchandise credits issued by Merchant (collectively, the “Gift Certificates”). Purchaser shall reimburse Agent in cash for such amounts during the Weekly Sale Reconciliation provided for in Section 8.7. Neither Agent nor Merchant shall sell any Gift Certificates.

8.6 Sale Reconciliation. (a) On each Wednesday during the Sale Term, Purchaser, Agent and Merchant

shall cooperate to reconcile Expenses of the Sale, make payments/setoffs on account of the Guaranteed Amount and reconcile such other Sale-related items as any such party shall reasonably request, in each case for the prior week or partial week (i.e. Sunday through Saturday), all pursuant to procedures agreed upon by Merchant and Agent (the “Weekly Sale Reconciliation”).

(b) Within thirty (30) days after the end of the Sale Term, or as soon as

practicable thereafter, Merchant, Purchaser and Agent shall complete a final reconciliation of the Sale (the “Final Reconciliation”), the written results of which shall be certified by representatives of each of Merchant, Purchaser and Agent as a final settlement of accounts between Purchaser, on the one hand, and Agent, on the other hand, and a copy of which shall be promptly delivered to Purchaser. Within five (5) days after the completion of the Final Reconciliation and execution of a settlement letter including an appropriate mutual release, Agent (as applicable) shall pay to Purchaser, or Purchaser shall pay to Agent (as applicable), as the case may be, any and all amounts due the other pursuant to the Final Reconciliation. Once executed by Merchant, Purchaser, and Agent, such settlement and Final Reconciliation shall be deemed approved pursuant to section 105(a) of the Bankruptcy Code and rule 9019 of the Federal Rules of Bankruptcy Procedure without further order of the Bankruptcy Court (other than and to the extent included in the Approval Order). In the absence of an order of the Bankruptcy Court to the contrary, no disputed amounts owing hereunder shall be paid until the dispute has been


20

resolved by agreement of Merchant, on the one hand, and Purchaser and Agent (as applicable), or as determined by the Bankruptcy Court. During the Sale Term and thereafter until all of Merchant’s, Purchaser’s, and Agent’s obligations under this Agreement have been satisfied, Merchant, Purchaser and Agent shall have reasonable access to each other’s records with respect to the Sale (including, but not limited to Cost Value, Merchandise, Expenses, and Proceeds) to review and audit such records.

8.7 Force Majeure. If any casualty, act or threatened act of terrorism, or act of

God prevents or substantially inhibits the conduct of business in the ordinary course at any of the Stores for a period of three (3) days, the Merchandise located at such Store shall, in Agent’s reasonable discretion (after consultation with the Merchant), be eliminated from the Sale and considered to be deleted from this Agreement as of the date of such event, and Agent and Merchant shall have no further rights or obligations hereunder with respect thereto; provided, however, that (i) the proceeds of any insurance attributable to such Merchandise shall constitute Proceeds hereunder, and (ii) the Guaranteed Amount shall be reduced to account for any Merchandise eliminated from the Sale which is not the subject of insurance proceeds, and Purchaser shall within five (5) days following written demand by Agent reimburse Agent for the amount the Guaranteed Amount is so reduced.

8.8 Additional Agent Merchandise. (a) Agent shall be entitled to include in the Sale supplemental merchandise

procured by Agent which is of like kind, and no lesser quality to the Merchandise located in the Stores as of the Sale Commencement Date (“Additional Agent Merchandise”), which shall not exceed 15% of the aggregate Cost Value of the Merchandise included in the Sale. Agent shall be responsible for payment of the costs associated with procuring any Additional Agent Merchandise and all costs and expenses related to, or incurred in connection with, the marketing and sale of the Additional Agent Merchandise, which costs shall not constitute Expenses hereunder; provided, however, that such costs shall not include any occupancy expenses related to the Distribution Centers.

(b) The Additional Agent Merchandise shall at all times and for all purposes

be the exclusive property of, and subject to the control of, Agent. Merchant and Purchaser, shall cooperate with Agent with respect to all filings (including, without limitation, UCC-1 financing statements) and other actions to the extent reasonably requested by Agent in connection with the Additional Agent Merchandise. If requested by Agent, Merchant shall, at Agent’s sole expense (and not as an Expense hereunder), insure the Additional Agent Merchandise and, if required, promptly file any proofs of loss with regard to same with Merchant’s insurers.

(c) Any transactions relating to the Additional Agent Merchandise are, and

shall be construed as, a true consignment from Agent to Merchant. Merchant acknowledges, and the Approval Order (as and when applicable) shall provide, that the Additional Agent Merchandise shall be consigned to Merchant as a true consignment under Article 9 of the Uniform Commercial Code (the “UCC”). Agent is hereby granted a legal, valid and binding first priority security interest in (i) the Additional Agent Merchandise and (ii) the Additional Agent Merchandise proceeds, which security interest Agent shall be authorized to perfect prior to entry of the Approval Order, but which security interest shall, if not sooner perfected, be deemed perfected pursuant to the Approval Order without the requirement of filing UCC financing statements or providing notifications to any prior secured parties (provided that each of Purchaser and Agent, as applicable, is hereby authorized to deliver any notices and file any financing


21

statements and amendments thereof under the applicable UCC identifying Agent’s interest in the Additional Agent Merchandise (and any proceeds from the sale thereof) as consigned goods thereunder and the Merchant as the consignee therefor, and Agent’s security interest in such Additional Agent Merchandise and Additional Agent Merchandise proceeds).

(d) In order to distinguish the Additional Agent Merchandise from the

Merchandise located in the Stores, Agent shall mark the Additional Agent Merchandise using either a “dummy” SKU or department number, or in such other manner as shall enable Merchant and Agent to distinguish sales of the Additional Agent Merchandise from sales of the Merchandise. Additionally, Agent shall provide signage in the Stores notifying customers that the Additional Agent Merchandise has been included in the Sale.

8.9 Right to Monitor. Merchant shall have the right to monitor the Sale and

activities attendant thereto and to be present in the Stores during the hours when the Stores are open for business; provided that Merchant’s presence does not unreasonably disrupt the conduct of the Sale. Merchant shall also have a right of access to the Stores at any time in the event of an emergency situation and shall promptly notify Agent of such emergency.

Section 9. Employee Matters. 9.1 Merchant’s Employees. Agent may use Merchant’s Store employees in

the conduct of the Sale to the extent Agent deems expedient, and Agent may select and schedule the number and type of Merchant’s Store employees required for the Sale. Agent shall identify any such Store employees to be used in connection with the Sale (each such employee, a “Retained Employee”). Notwithstanding the foregoing, Merchant’s employees shall at all time remain employees of the Merchant. Agent’s selection and scheduling of Merchant’s employees shall at all times comply with all applicable laws and regulations. Merchant and Agent agree that, except to the extent that wages and benefits of Retained Employees constitute Expenses hereunder, nothing contained in this Agreement and none of Agent’s actions taken in respect of the Sale shall be deemed to constitute an assumption by Agent of any of Merchant’s obligations relating to any of Merchant’s employees including, without limitation, Excluded Payroll Benefits, Worker Adjustment Retraining Notification Act (“WARN Act”) claims and other termination type claims and obligations, or any other amounts required to be paid by statute or law; nor shall Agent or Purchaser become liable under any employment agreement, collective bargaining agreement, or be deemed a joint or successor employer with respect to such employees. Merchant shall not, without the prior consent of Agent, raise the salary or wages or increase the benefits for, or pay any bonuses or other extraordinary payments to, any Store employees prior to the Sale Termination Date. Merchant shall not transfer any employee in anticipation of the Sale nor any Retained Employee during the Sale Term, in each case without Agent’s prior consent.

9.2 Termination of Employees. Agent may in its discretion stop using any

Retained Employee at any time during the Sale, subject to the conditions provided for herein. In the event that Agent desires to cease using any Retained Employee, Agent shall notify Merchant at least seven (7) days prior thereto; provided, however, that, in the event that Agent determines to cease using an employee “for cause” (such as dishonesty, fraud or breach of employee duties), the seven (7) day notice period shall not apply; provided, further, however, that Agent shall immediately notify Merchant of the basis for such “cause.” From and after the date of this Agreement and until the Sale Termination Date, Merchant shall not transfer or dismiss employees of the Stores except “for cause” without Agent’s prior consent. Notwithstanding the foregoing, Agent shall not have the right to terminate the actual employment of any employee, but rather


22

may only cease using such employee in the Sale and paying any Expenses with respect to such employee (and all decisions relating to the termination or non-termination of such employees shall at all times rest solely with Merchant).

9.3 Payroll Matters. During the Sale Term, Merchant and/or Purchaser shall

process the payroll for all Retained Employees and any former employees and temporary labor engaged for the Sale from the Store Closing Account, or to the extent that it is agreed by the Parties, each Wednesday (or such other date as may be requested by Purchaser to permit the funding of the payroll accounts before such payroll is due and payable) during the Sale Term, Agent shall transfer to Purchaser’s payroll accounts an amount equal to the base payroll for Retained Employees plus related payroll taxes, workers’ compensation, and benefits for such week, to the extent such amount constitutes Expenses hereunder.

9.4 Employee Retention Bonuses. Agent may pay, as an Expense, retention

bonuses (“Retention Bonuses”) (which bonuses shall be inclusive of payroll taxes, but as to which no benefits shall be payable), up to a maximum of ten percent (10%) of base payroll for all Retained Employees, to certain Retained Employees who do not voluntarily leave employment and are not terminated “for cause,” as Agent may determine in its discretion. The amount of such Retention Bonuses shall be in an amount to be determined by Agent, in its discretion, and shall be payable within thirty (30) days after the Sale Termination Date, and shall be processed through Merchant’s payroll system.

Section 10. Conditions Precedent and Subsequent. (a) The willingness of Agent to enter into the transactions contemplated under

this Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Agent:

(i) All representations and warranties of the Merchant hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the date hereof and on the Sale Commencement Date;

(ii) No injunction, stay or restraining order shall be in effect prohibiting the consummation of the transactions contemplated by this Agreement (including, without limitation, the Sale);

(iii) The Bankruptcy Court shall have entered the Approval Order, in form and substance meeting the standards set forth in Section 2(b), on or before June 11, 2019;

(iv) The Bankruptcy Court shall have entered one or more interim and/or final orders, inter alia, approving Merchant’s use of cash collateral;

(v) All parties to this Agreement shall have executed this Agreement in the space provided therefor; and

(vi) All conditions to the obligations of Purchaser and Merchant set

forth in [ARTICLE ____ and ARTICLE ___], respectively, of the APA shall have been satisfied (or waived in accordance with the APA).

(b) The willingness of Merchant to enter into the transactions contemplated


23

under this Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by the Merchant:

(i) All representations and warranties of Agent hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the date hereof and on the Sale Commencement Date;

(ii) No injunction, stay or restraining order shall be in effect prohibiting the consummation of the transactions contemplated by this Agreement (including, without limitation, the Sale);

(iii) The Bankruptcy Court shall have entered the Approval Order; and

(iv) All parties to this Agreement shall have executed this Agreement in the space provided therefor.

Section 11. Representations, Warranties and Covenants. 11.1 Merchant’s Representations, Warranties and Covenants. Merchant hereby

represents, warrants and covenants in favor of Agent as follows: (a) Each entity comprising Merchant (i) is a corporation or limited liability

company duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation; (ii) subject to the orders entered and to be entered by the Bankruptcy Court, has all requisite corporate or limited liability power and authority to own, lease and operate its assets and properties in connection with the Store Closings and to conduct the Store Closings and to grant the rights intended to be granted herein as provided herein); and (iii) is, and during the Sale Term will continue to be, duly authorized and qualified to do business and in good standing in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which any Store or the Distribution Centers is located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of the Merchant to execute and deliver this Agreement and perform fully its obligations hereunder.

(b) Subject to entry of the Approval Order, Merchant has the right, power and

authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the “Agency Documents”) and to perform fully its obligations hereunder and thereunder. Subject to entry of the Approval Order, Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval is required for Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder and to consummate the Sale, except for any such consent the failure of which to be obtained could not reasonably be expected to have a material adverse effect on the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder. Subject to entry of the Approval Order, each of the Agency Documents has been duly executed and delivered by the Merchant and constitutes the legal, valid and binding obligation of the Merchant enforceable in accordance with its terms.

(c) Merchant owns, and will own at all times during the Sale Term, good and


24

marketable title to all of the Merchandise (which will not be included in the sale from Merchant to Purchaser), Merchant’s Consignment Goods and Store Owned FF&E, free and clear of all security interests, liens, claims and encumbrances of any nature (other than (i) the security interests and liens of the Agent hereunder and (ii) the security interests and liens set forth on Exhibit 11.1(c)). Merchant shall not create, incur, assume or suffer to exist any security interest, lien, claim or encumbrance upon or with respect to any of the Merchandise, Additional Agent Merchandise, Proceeds, Store Owned FF&E or any proceeds of any of the foregoing other than (i) as provided herein and (ii) except with respect to the Additional Agent Merchandise and its proceeds, as set forth on Exhibit 11.1(c). Subject to the entry of the Approval Order, all Merchandise, Additional Agent Merchandise and Store Owned FF&E may be sold by Agent free and clear of all security interests, liens, claims and encumbrances of any nature; provided that (i) any security interests, liens, claims or encumbrances that may have attached to any of the foregoing prior to such sale shall attach only to the Guaranteed Amount and such other amounts due by Agent to Purchaser hereunder.

(d) Merchant has maintained its pricing files (including, without limitation, the

Merchandise File) and records in the ordinary course of business, and prices charged to the public for goods (whether in-Store, by advertisement, online or otherwise) are the same in all material respects as set forth in such pricing files for the periods indicated therein (without consideration of any Excluded Pricing Adjustments). All pricing files (including, without limitation, the Merchandise File) and records are true and accurate in all material respects as to the actual cost to Merchant for purchasing the goods referred to therein and as to the selling price to the public for such goods without consideration of any Excluded Pricing Adjustments, as of the dates and for the periods indicated therein. Merchant represents that (i) the ticketed prices of all items of Merchandise do not and shall not include any Sales Taxes and (ii) all registers located at the Stores are programmed to correctly compute all Sales Taxes required to be paid by the customer under applicable law, as such calculations have been identified to Merchant by its retained service provider.

(e) Through the Sale Commencement Date, Merchant has ticketed or marked,

and shall continue to ticket or mark, all items of inventory received at the Stores in a manner consistent with similar Merchandise located at the Stores, and in accordance with Merchant’s ordinary course past practices and policies relative to pricing and marking inventory.

(f) Since May 1, 2019, Merchant has not, and through the Sale

Commencement Date Merchant shall not, purchase for or transfer to or from any of the Stores any merchandise or goods outside the ordinary course.

(g) To Merchant’s knowledge, all Merchandise is in compliance with all

applicable federal, state and local product safety laws, rules and standards. Merchant shall provide Agent with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date. Merchant owns or possesses all right, title and interest in and to all material permits, licenses, franchises, orders, consents, authorizations, registrations, certificates, variances, exceptions, approvals and similar rights obtained from governments and governmental agencies relating to the Stores or the operations conducted at the Stores, and all deposits or bonds in connection therewith (collectively, the “Permits”) that are necessary to own and operate the Stores, including, without limitation, all Permits required under any federal, state or local law relating to public health and safety, employee health and safety, pollution or protection of the environment, other than in each case failures to so own or possess all right, title and interest that would not prevent or materially impair Merchant’s consummation of the transactions


25

contemplated by this Agreement. Merchant is in compliance with the terms and conditions of such material Permits and has received no notices within the past year (nor does it have any knowledge of any threatened notice) that it is in violation of any of the terms or conditions of such Permits, except for any noncompliance or violation that would not prevent or materially impair the Merchant’s consummation of the transactions contemplated by this Agreement. Merchant has conducted and continues to conduct its business, in all material respects, in accordance with all applicable laws and governmental orders applicable to Merchant or any of its assets or properties, and to the best of its knowledge Merchant is not in material violation of any such law or governmental order, including, without limitation, any law, now in effect, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, labor, health, safety or hazardous materials, except for any noncompliance or violation that would not prevent or materially impair the Merchant’s consummation of the transactions contemplated by this Agreement.

(h) Subject to the provisions of the Approval Order, Agent shall have the right

during the Sale Term to the unencumbered use and occupancy of, and peaceful and quiet possession of, the Stores and the Distribution Centers, the assets currently located at the Stores and the Distribution Centers, and the utilities and other services provided at the Stores and the Distribution Centers. Merchant shall, throughout the Sale Term, maintain in good working order, condition and repair (at its own expense, except as expressly set forth herein) all cash registers, heating systems, air conditioning systems, alarm systems, elevators, escalators and all other mechanical devices necessary or appropriate for the conduct of the Sale at the Stores and the Distribution Centers. Except as otherwise restricted by the Bankruptcy Code upon filing of the Bankruptcy Case, and absent a bona fide dispute, throughout the Sale Term, Merchant shall remain current on all expenses and payables necessary or appropriate for the conduct of the Sale.

(i) Subject to approval by the Bankruptcy Court, Merchant has paid, and will

continue to pay throughout the Sale Term, all self-insured or Merchant-funded employee benefit programs for Store employees, including health and medical benefits and insurance and all proper claims made or to be made in accordance with such programs, which amounts shall be refunded to Merchant by Purchaser.

(j) Since May 1, 2019, Merchant has not taken, and shall not throughout the

Sale Term take, any actions with the intent of increasing the Expenses of the Sale, including without limitation increasing salaries or other amounts payable to employees; except to the extent an employee was due an annual raise in the ordinary course.

(k) Prior to the execution of this Agreement, Merchant has provided Agent

reasonable access to all pricing and cost files, computer hardware, software and data files, inter- Stores transfer logs, markdown schedules, invoices, style runs and all other documents relative to the price, mix and quantities of inventory located at the Stores and the Distribution Centers or on order or in transit.

(l) To the best of Merchant’s knowledge, all documents, information and

supplements provided by Merchant to Agent in connection with Agent’s due diligence and the negotiation of this Agreement were true and accurate in all material respects at the time provided.

(m) Other than filing the Bankruptcy Case, no action, arbitration, suit, notice,

or legal, administrative or other proceeding before any court or governmental body has been


26

instituted by or against the Merchant, or has been settled or resolved, or to Merchant’s knowledge, is threatened against or affects Merchant, relative to Merchant’s business or properties, which questions the validity of this Agreement, or that if adversely determined, would materially and adversely affect the conduct of the Sale.

(n) Supplies have not been, since May 1, 2019, and shall not be, prior to the Sale Commencement Date, transferred by Merchant to or from the Stores so as to alter the mix or quantity of supplies at the Stores from that existing on such date, other than in the ordinary course of business.

(o) Since May 1, 2019, Merchant (i) has not (and shall not, up to the Sale

Commencement Date) marked up or raised the price of any items of Merchandise, (ii) has not reduced the price of any items of Merchandise, (iii) has sold inventory during such period at customary prices consistent with the ordinary course of business, and has not offered any promotions or discounts or promoted or advertised any sales or in-store promotions (including POS promotions) to the public other than as described on Exhibit 11.1(o) (in all cases whether or not consistent with Merchant’s ordinary course of business consistent with historic periods) and (iv) has not removed or altered any tickets or any indicia of clearance merchandise or POS promotion.

(p) Since May 1, 2019, Merchant has operated, and, except as provided herein,

through the Sale Commencement Date, Merchant covenants to continue to operate, the Stores in all material respects in the ordinary course of business including without limitation by: (i) selling inventory during such period at customary prices consistent with the ordinary course of business and not offering any promotions or discounts or promoting or advertising any sales or in-store promotions (including POS promotions) to the public other than an as described on Exhibit 11.1(o) (in all cases whether or not consistent with Merchant’s ordinary course of business consistent with historic periods); (ii) not returning inventory, supplies, fixtures, furniture or equipment to vendors and not transferring inventory, supplies, fixtures, furniture or equipment out of or to the Stores; or (iii) except as may occur in the ordinary course of business, not making any management personnel moves or changes at the Stores; subject in each case to the Merchant’s filing of the Bankruptcy Cases. Since May 1, 2019, Merchant has not transferred, and will not transfer, any inventory to or from any of Merchant’s retail locations other than the Stores and the Distribution Centers from or to any Store or the Distribution Centers. Merchant acknowledges and agrees that, on or after the Sale Commencement Date, it shall not offer any promotions or discounts at the Stores.

(q) Merchant is not a party to any collective bargaining agreements with its

employees. No labor unions represent Merchant’s employees at any Store. There are currently no strikes, work stoppages, or other labor disturbances affecting the Distribution Centers or any Store, or Merchant’s central office facilities.

(r) No Store lease or similar occupancy agreement has expired, nor shall

expire at any time until the conclusion of the Sale Term in such Store (by its terms or otherwise). (s) Merchant has not since May 1, 2019, knowingly shipped any Excluded

Defective Merchandise from the Distribution Centers to the Stores. Merchant will not knowingly ship any Excluded Defective Merchandise from the date of this Agreement from the Distribution Centers to the Stores.


27

(t) During the Sale Term applicable to any Store or, to the extent a notice is delivered pursuant to Section 4.1(s), the Distribution Centers, and for purposes of conducting the Sale at such Store or the Distribution Centers, (A) Agent shall have the right to the unencumbered use and occupancy of, and peaceful and quiet possession of, such Store or the Distribution Centers and the assets currently located at such Store or the Distribution Centers, in each case subject to the extent of Merchant’s rights and entitlement to use the same, and the services provided at such Store to the extent Merchant is entitled to such services and (B) Merchant shall not assign, reject, terminate or vacate any lease relating to any such Store or the Distribution Centers where such assignment, rejection, termination or vacatur would have an effective date on or prior to the applicable Sale Termination Date or Vacate Date for such Store or the Distribution Centers.

(u) No investigation or due diligence conducted by Agent or Purchaser shall

limit, modify or negate any of the foregoing representations or warranties. 11.2 Agent’s Representations, Warranties and Covenants. Agent hereby

represents, warrants and covenants in favor of Merchant as follows: (a) Agent: (i) is a limited liability company duly and validly existing and in

good standing under the laws of the state of its organization; (ii) has all requisite power and authority to carry on its business as presently conducted and to consummate the transactions contemplated hereby; (iii) is, and during the Sale Term will continue to be, duly authorized and qualified to do business and in good standing in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of Agent to execute and deliver this Agreement and perform fully its obligations hereunder.

(b) Agent has the right, power and authority to execute and deliver each of the

Agency Documents to which it is a party and to perform fully its obligations thereunder. Agent has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval is required on the part of Agent for Agent to enter into and deliver the Agency Documents, to perform its obligations thereunder and to consummate the Sale. Each of the Agency Documents has been duly executed and delivered by the Agent and constitutes the legal, valid and binding obligation of Agent enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is consider in a proceeding in equity or at law). No court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or impair, or is required for, Agent’s consummation of the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as provided herein. No contract or other agreement to which Agent is a party or by which Agent is otherwise bound will prevent or impair the consummation of the transactions contemplated by this Agreement.

(c) No action, arbitration, suit, notice or legal administrative or other proceeding before any court or governmental body has been instituted by or against Agent, or has been settled or resolved or, to Agent’s knowledge, has been threatened against or affects Agent, which questions the validity of this Agreement or any action taken or to be taken by Agent in


28

connection with this Agreement or which, if adversely determined, would have a material adverse effect upon Agent’s ability to perform its obligations under this Agreement.

(d) The Sale shall be conducted in compliance with all applicable state and

local laws, rules and regulations and Merchant’s leases and other agreements, except as otherwise provided in this Agreement or the Approval Order.

(e) Absent prior consent by the Merchant, except to the extent otherwise

required by this Agreement, Agent will not cause any non-emergency repairs or maintenance (emergency repairs are repairs necessary to preserve the security of a Store premise or to ensure customer safety) to be conducted at the Stores.

(f) To the best of Agent’s knowledge, all Additional Agent Merchandise are in

compliance with all applicable federal, state or local product safety laws, rules and standards. All Additional Agent Merchandise shall be of like kind and no lesser quality to the Merchandise located in the Stores on the Sale Commencement Date.

11.3 Purchaser’s Representations, Warranties and Covenants. Each of the Purchasers hereby represents, warrants and covenants in favor of Merchant and Agent as follows:

(a) Purchasers: (i) are a limited liability company and a corporation duly and validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) have all requisite power and authority to carry on its business as presently conducted and to consummate the transactions contemplated hereby; (iii) is, and during the Sale Term will continue to be, duly authorized and qualified to do business and in good standing in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of Purchaser to execute and deliver this Agreement and perform fully its obligations hereunder.

(b) Purchasers have the right, power and authority to execute and deliver the Agency Documents to which it is a party and to perform fully its obligations thereunder. Purchasers have taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval is required on the part of Purchasers for Purchasers to enter into and deliver the Agency Documents, to perform its obligations thereunder and to consummate the Sale. Each of the Agency Documents has been duly executed and delivered by the Purchasers and constitutes the legal, valid and binding obligation of Purchasers enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is consider in a proceeding in equity or at law). No court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or impair, or is required for, Purchaser’s consummation of the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as provided herein. No contract or other agreement to which either of Purchasers is a party or by which either Purchasers is otherwise bound will prevent or impair the consummation of the transactions contemplated by this Agreement. (c) Purchaser agrees and covenants that it shall retain sufficient funds, or make other


29

arrangements satisfactory to Agent, to enable Purchaser to fully satisfy and perform its obligations under this Agreement and any obligations Merchant is unable to fulfull as a result of underfunding the Store Closing Account and Purchaser shall use those funds to fully satisfy and perform its obligations (and to the extent applicable, Merchant’s obligations) under this Agreement.

(d) No action, arbitration, suit, notice or legal administrative or other proceeding before any court or governmental body has been instituted by or against either of Purchasers, or has been settled or resolved or, to either of Purchasers knowledge, has been threatened against or affects either of Purchasers, which questions the validity of this Agreement or any action taken or to be taken by Purchasers in connection with this Agreement or which, if adversely determined, would have a material adverse effect upon either of Purchasers ability to perform its obligations under this Agreement.

Section 12. Insurance. 12.1 Merchant’s Liability Insurance. Merchant shall continue at its cost and

expense (subject to Section 4.1(x)) until the Sale Termination Date, in such amounts as it currently has in effect, all of its liability insurance policies, including, but not limited to, commercial general liability, products liability, comprehensive public liability, auto liability and umbrella liability insurance, covering injuries to persons and property in, or in connection with, Merchant’s operation of the Stores; and Merchant shall cause Agent to be named as additional insureds or loss payees (as its interest may appear) with respect to all such policies. Merchant shall deliver to Agent certificates evidencing such insurance setting forth the duration thereof and naming Agent as additional insureds or loss payees (as its interest may appear), in form reasonably satisfactory to Agent. All such policies shall require at least thirty (30) days’ prior notice to Agent of cancellation, non-renewal or material change. In the event of a claim under any such policies, Merchant shall be responsible for the payment of all deductibles, retentions or self- insured amounts thereunder, unless it is determined that liability arose by reason of the willful misconduct or grossly negligent acts or omissions of Agent, or Agent’s employees, independent contractors or agents. Merchant shall not make any change in the amount of any deductibles, retentions or self-insurance amounts prior to the Sale Termination Date without Agent’s prior written consent.

12.2 Merchant’s Casualty Insurance. Merchant shall provide, as an Expense,

throughout the Sale Term fire, flood, theft and extended coverage casualty insurance covering the Merchandise (and, if requested, at Agent’s expense not as an Expense hereunder, the Additional Agent Merchandise) in a total amount equal to no less than the retail value thereof. From and after the date of this Agreement until the Sale Termination Date, all such policies will also name Purchase and Agent as additional insureds or loss payees (as its interest may appear). In the event of a loss to the Merchandise on or after the date of this Agreement, the Proceeds of such insurance attributable to the Merchandise shall constitute Proceeds hereunder (net of any applicable deductible). Prior to the Sale Commencement Date, Merchant shall deliver to Agent certificates evidencing such insurance, setting forth the duration thereof and naming Agent as additional insureds or loss payees (as its interest may appear), in form and substance reasonably satisfactory to Agent. All such policies shall require at least thirty (30) days’ prior notice to the Agent of


30

cancellation, non-renewal or material change. Merchant shall not make any change in the amount of any deductibles or self-insurance amounts prior to the Sale Termination Date without Agent’s prior written consent.

12.3 Agent’s Insurance. Agent shall maintain as an Expense hereunder

throughout the Sale Term, in such amounts as it currently has in effect, commercial general liability policies covering injuries to persons and property in or in connection with Agent’s agency at the Stores, and shall cause Merchant to be named as an additional insured with respect to such policies. Agent shall deliver to Merchant certificates evidencing such insurance policies setting forth the duration thereof and naming Merchant as an additional insured, in form and substance reasonably satisfactory to Merchant. In the event of a claim under any such policies, Agent, as applicable, shall be responsible as an Expense hereunder for the payment of all deductibles, retentions or self-insured amounts thereunder, unless it is determined that liability arose by reason of the willful misconduct or grossly negligent acts or omissions of Merchant or Merchant’s employees, independent contractors or agents (other than Agent or Agent’s employees, agents or independent contractors). All such policies shall require at least thirty (30) days’ prior notice to the Merchant of cancellation, non-renewal or material change. Agent shall not make any change in the amount of any deductibles or self-insurance amounts prior to the Sale Termination Date without Merchant’s prior written consent.

12.4 Worker’s Compensation Insurance. Subject to approval by the Bankruptcy

Court, Merchant shall at all times during the Sale Term maintain in full force and effect workers’ compensation insurance (including employer liability insurance) covering all Retained Employees in compliance with all statutory requirements and in such amounts as it currently has in effect. Prior to the Sale Commencement Date, Merchant shall deliver to Agent certificates evidencing such insurance.

Section 13. Indemnification. 13.1 Merchant’s Indemnification. Merchant shall indemnify and hold Agent

harmless from and against all claims, causes of action, demands, penalties, losses, liability, damage, or other obligations, including, without limitation, reasonable attorneys’ fees and expenses, directly or indirectly asserted against, resulting from or related to: (i) Merchant’s material breach of or failure to comply with any of its agreements, covenants, representations or warranties contained in any Agency Document; (ii) subject to Agent’s compliance with its obligations under Section 8.3 hereof, any failure by Merchant to pay any Sales Taxes to the proper taxing authorities or to properly file with any taxing authorities any reports or documents required by applicable law to be filed in respect thereof; (iii) subject to Agent’s satisfaction of its obligations pursuant to Section 9 hereof, any failure of Merchant to pay to its employees any wages, salaries or benefits due to such employees during the Sale Term or other claims asserted against Agent by Merchant’s employees resulting from Merchant’s (and not Agent’s) treatment of its employees; (iv) any consumer warranty or products liability claims relating to Merchandise; (v) any liability or other claims asserted by customers, any of Merchant’s employees, or any other person against any Agent Indemnified Party (including, without limitation, claims by employees arising under collective bargaining agreements, worker’s compensation or under the WARN Act), other than any such matter arising from the willful misconduct or gross negligence of Agent or its officers, directors, employees, agents or supervisors; (vi) any harassment or any other unlawful, tortious, or otherwise actionable treatment of any customers, employees or agents of Agent by Merchant or any of its representatives; (vii) so long as Agent complies with its obligations under Sections 4.1 and 4.2, any failure of Merchant to pay any Occupancy Expenses


31

or Central Services Expenses during the Sale Term; (viii) the gross negligence (including omissions) or willful misconduct of the Merchant, its officers, directors, employees, agents (other than Agent) or representatives, in each case, except to the extent such Losses result from or are related to the gross negligence (including omissions), fraud or willful misconduct of Agent.

13.2 Agent Indemnification. Agent shall indemnify and hold the Merchant and

its officers, directors, employees, agents and representatives harmless from and against all claims, causes of action, demands, penalties, losses, liability, damage, or other obligations, including, without limitation, reasonable attorneys’ fees and expenses, directly or indirectly asserted against, resulting from, or related to: (i) Agent’s, as applicable, material breach of or failure to comply with any of its agreements, covenants, representations or warranties contained in any Agency Document; (ii) any claims by any party engaged by Agent, as applicable, as an employee or independent contractor arising out of such employment; (iii) any harassment or any other unlawful, tortious or otherwise actionable treatment of any customers, employees or agents of the Agent, as applicable, or any of its representatives; (iv) as set forth in Section 8.3 above; (v) any consumer warranty or product liability claims relating to Additional Agent Merchandise included by Agent; and (vi) the gross negligence (including omissions) or willful misconduct of Agent, as applicable, its officers, directors, employees, agents or representatives, in each case, except to the extent such Losses result from or are related to the gross negligence (including omissions), fraud or willful misconduct of Agent.

Section 14. Defaults. The following shall constitute “Events of Default”

hereunder: (a) After entry of the Approval Order, the Merchant, Purchaser or Agent shall

fail to perform any material obligation hereunder if such failure remains uncured five (5) days after receipt of written notice thereof to the defaulting party;

(b) Any representation or warranty made by the Merchant, Purchaser or Agent

proves untrue in any material respect as of the date made and, to the extent curable, continues uncured five (5) days after written notice to the defaulting party; or

(c) The granting of a motion by any party to covert the Merchant’s bankruptcy

case to a case under another chapter of the Bankruptcy Code (other than chapter 11) or to appoint a chapter 11 trustee.

(d) The Sale is terminated prior to the Sale Termination Date or materially

interrupted or impaired for any reason other than (i) an Event of Default by Agent, (ii) any other material breach or action by Agent not authorized hereunder or (iii) events or circumstances described in Section 8.8; provided that it shall be an Event of Default if the Sale is terminated prior to Sale Termination Date or materially interrupted or impaired at more than eight (8) Stores for a period of at least four (4) days at each such Store as a result of one or more events or circumstances described in Section 8.8).

Upon an Event of Default, the non-defaulting party (in the case of Section 14(a) or

(b) above), or Agent (in the case of Section 14(c) or (d) above) may in its discretion elect to terminate this Agreement, and any party’s damages or entitlement to equitable relief on account of an Event of Default shall (in addition to the right to terminate as provided above in this Section 14) be determined by the Bankruptcy Court.


32

Section 15. Agent’s Security Interest. (a) Effective upon payment by Agent of the Initial Guaranty Payment

Merchant hereby grants to Agent first priority (subject to Section 15(b) below), senior security interests in and liens upon: (i) the Merchandise a located at the Stores and the Distribution Center Merchandise; (ii) all Proceeds (including, without limitation, credit card Proceeds and the Designated Deposit Accounts) from the sale thereof; (iii) the Store Owned FF&E located at the Stores and the FF&E located at the Atlanta Distribution Center; (iv) all proceeds from the sale or other disposition of such Store Owned FF&E and the FF&E located at the Atlanta Distribution Center; (v) Agent’s commission regarding the sale or other disposition of Merchant’s Consignment Goods under Section 5.4 hereof at the Stores; and (vi) all “proceeds” (within the meaning of Section 9-102(a)(64) of the Code) of each of the foregoing (all of which are collectively referred to herein as the “Agent Collateral”), to secure the full payment and performance of all obligations of Merchant to Agent hereunder. Upon occurrence of all of the entry of the Approval Order, payment of the Initial Guaranty Payment, the security interests and liens granted to Agent and Purchaser hereunder shall be deemed properly perfected without the necessity of filing UCC-1 financing statements or any other documentation.

(b) Without any further act by or on behalf of Agent or any other party,

Agent’s security interests in and liens upon the Agent Collateral created hereunder are (i) validly created, (ii) effective upon the occurrence of all of the entry of the Approval Order, payment of the Initial Guaranty Payment, (iii) automatically perfected, and (iv) senior to all other liens and security interests. Merchant shall cooperate with Agent with respect to all filings (including (without limitation) UCC-1 financing statements) and other actions to the extent reasonably requested by Purchaser and Agent in connection with the security interests and liens granted under this Agreement.

(c) Merchant will not sell, grant, assign or transfer any security interest in, or

permit to exist any lien or encumbrance on, any of the Agent Collateral other than in favor of Agent, as applicable, and as set forth on Exhibit 11.1(c).

(d) In the event of an occurrence of an Event of Default by the Merchant

hereunder, in any jurisdiction where the enforcement of its rights hereunder is sought, Agent shall have, in addition to all other rights and remedies, the rights and remedies of a secured party under the Code.

(e) “Code” shall mean the Uniform Commercial Code as the same may be in

effect from time to time in the State of Delaware. Section 16. Termination. 16.1 Termination. This Agreement may be terminated prior to the Sale

Commencement Date as follows: (a) by mutual written agreement of Purchaser, Agent and Merchant; (b) by any of Purchaser, Agent or Merchant if there shall be in effect an

applicable law or order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby (it being understood that the lack of entry of the Approval Order shall not permit termination of this Agreement except as set forth in Section 16.1(g)); provided


33

that the right to terminate this Agreement under this Section 16.1(b) shall not be available to any party whose breach of this Agreement shall have been the cause of, or shall have resulted in such applicable law or order that restrains, enjoins or prohibits the consummation of the transactions contemplated hereby;

(c) by Purchaser or Agent (provided that such party is not then in material

breach of any representation, warranty, covenant, or other agreement contained herein), if there shall have been a material breach or misrepresentation of any of the representations or warranties or a material breach of any of the covenants set forth in this Agreement on the part of Merchant, which breach is not cured within seven (7) days following written notice to Merchant or which breach, by its nature, cannot be cured prior to the Sale Commencement Date;

(d) by Merchant (provided that Merchant is not then in material breach of any

representation, warranty, covenant, or other agreement contained herein), if there shall have been a material breach or misrepresentation of any of the representations or warranties or a material breach of any of the covenants set forth in this Agreement on the part of Purchaser or Agent, which breach is not cured within seven (7) days following written notice to Purchaser and Agent or which breach, by its nature, cannot be cured prior to the Sale Commencement Date;

(e) by Purchaser or Agent, upon an order of the Bankruptcy Court approving,

or the filing by or on behalf of Merchant of a motion or other request to approve, any financing, refinancing, acquisition, divestiture, public offering, recapitalization, business combination or reorganization of or involving all or a material portion of, collectively, the Merchandise and the Store Owned FF&E (other than any transaction with Agent or Purchaser or an affiliate of Agent or Purchaser) or any standalone plan of reorganization for Merchant involving the retention of all or a material portion of, collectively, the Merchandise and the Store Owned FF&E;

(f) by Purchaser or Agent, if the Approval Order shall not have been entered

by the Bankruptcy Court on or prior to June ____, 2019 (or by such later date as shall be mutually agreed to by Purchaser, Agent and Merchant in writing);

(g) by Agent, if the Sale Commencement Date shall not have occurred by June

____, 2019 (or by such later date as shall be mutually agreed to by Purchaser, Agent and Merchant in writing), provided that the right to terminate this Agreement under this Section 16.1(g) shall not be available to any party whose failure to fulfill any material obligation under this Agreement has been the cause of, or resulted in, the failure of the Sale Commencement Date to occur on or before such date;

(h) by Agent, in the event that the Bankruptcy Case is dismissed or converted

to a case or cases under Chapter 7 of the Bankruptcy Code, or if a trustee or examiner with expanded powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code is appointed in the Bankruptcy Case; and

(i) by any of Purchaser, Agent or Merchant if the APA is terminated in

accordance with its terms for any reason whatsoever. In the event that this Agreement is validly terminated as provided herein, then each

of the parties to this Agreement shall be relieved of its duties and obligations arising under this Agreement after the date of such termination; provided, however, that the provisions of Sections 15 and 16 shall survive any such termination and shall be enforceable hereunder; provided further,


34

however, that nothing in this Section 16.1 shall be deemed to release any party from liability for any breach of its obligations under this Agreement.

16.2 Termination. [This Agreement may be terminated prior to the Sale

Termination Date as follows: [DISCUSS WITH SCOTT WHETHER TO ADD MUTUAL BLANKET TERMINATION RIGHT THAT DOES NOT REQUIRE CAUSE]

Section 17. Miscellaneous.

17.1 Notices. All notices and communications provided for pursuant to this

Agreement shall be in writing and sent by email, by hand, by facsimile or by Federal Express or other recognized overnight delivery service, as follows:

(a) If to Agent:

Great American Group 21860 Burbank Blvd Woodland Hills, California 91367 Attn: Scott Carpenter, President GA Retail Alan N. Forman, EVP & GC Facsimile: (818) 746-9170 Email: [email protected] With a copy to, which shall not constitute notice: Burr & Forman LLP

1201 N. Market Street, Suite 1407 Wilmington, Delaware 19801 Attention: Richard A. Robinson Email: [email protected]

(b) If to Purchaser: (A) If to DBHI: DirectBuy Home Improvement, Inc. 8450 Broadway Merrillville, Indiana 46410 Attention: Justin Yoshimura, Preetam Shingavi E-mail: [email protected] E-mail: [email protected] With a copy to, which shall not constitute notice: Morgan Lewis & Bockius LLP 101 Park Ave. New York, New York 10178 Attention: Craig Wolfe, Rachel Mauceri E-mail: [email protected]

E-mail: [email protected]


mailto:[email protected]


35

(c) If to KKR Credit Advisors (US) LLC:

KKR Credit Advisors (US) LLC 555 California Street, 50th Floor San Francisco, California 94104 Attention: Scott Cullerton E-mail: [email protected]

With a copy to, which shall not constitute notice:

Proskauer Rose LLP Eleven Times Square New York, New York 10036 Attention: Vincent Indelicato, Chris Theodoridis E-mail: [email protected] E-mail: [email protected]

(d) If to Merchant:

Z Gallerie, LLC 1855 West 139th Street Gardena, California 90249 Attention: Mark Weinsten E-mail: [email protected] With a copy to, which shall not constitute notice: Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10022 Attention: Joshua A. Sussberg, P.C. Email: [email protected]

- and -

Kirkland & Ellis LLP 300 North LaSalle Chicago, Illinois 60654 Attention: Justin R. Bernbrock Email: [email protected]

- and -

Klehr Harrison Harvey Branzburg LLP 919 N. Market Street, Suite 1000, Wilmington, Delaware 19801, Attention: Domenic E. Pacitti, Michael W. Yurkewicz Email: [email protected] Email: [email protected]







36

17.2 Governing Law/Exclusive Jurisdiction. This Agreement shall be governed

by and interpreted in accordance with the laws of the State of New York, without reference to any conflict of laws provisions thereof, except where governed by the Bankruptcy Code. Each of the parties hereto irrevocably and unconditionally submits, for itself and its properties, to the exclusive jurisdiction of the Bankruptcy Court, in any action or proceeding arising out of or relating to this Agreement.

17.3 Amendments. This Agreement may not be modified except in a written

instrument executed by each of Merchant, Purchaser and Agent; provided, however, that no modification may be made to Sections 3.1, 3.2, 3.3 or 15 or this Section 17.3.

17.4 No Waiver. No consent or waiver by any party, express or implied, to or

of any breach or default by the other in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligation of such party. Failure on the part of any party to complain of any act or failure to act by the other party or to declare the other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder.

17.5 Currency. All reference to dollars in this Agreement and all schedules,

exhibits, and ancillary documents related to this Agreement shall refer to US dollars.

17.6 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of Agent, Purchaser and Merchant, including but not limited to any chapter 11 or chapter 7 trustee. No party to this Agreement shall be permitted to assign its obligations under this Agreement; provided that any entity comprising Agent may assign its rights and obligations under this Agreement to one or more persons affiliated with, or formed by, such entity without consent of any other party hereto (but with prior written notice to Merchant), provided such assigning entity shall remain obligated hereunder; provided, further, that any entity comprising Agent may assign its right to receive payments under this Agreement collaterally to its lender as security.

17.7 Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each such counterpart shall be deemed an original but all such counterparts together shall constitute one and the same agreement. This Agreement, to the extent signed and delivered by means of a facsimile machine, electronic mail or other electronic transmission in which the actual signature is evident, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto or thereto shall re-execute original forms hereof and deliver them to all other parties. No party hereto shall raise the use of a facsimile machine, electronic mail, or other electronic transmission in which the actual signature is evident to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine, electronic mail or other electronic transmission in which the actual signature is evident as a defense to the formation of a contract and each party forever waives such defense. In proving this Agreement, it shall not be necessary to produce or account for more than one such counterpart signed by the party against which enforcement is sought.

17.8 Section Headings. The headings of Sections of this Agreement are

inserted for convenience only and shall not be considered for the purpose of determining the


37

meaning or legal effect of any provisions hereof.

17.9 Wiring of Funds. All amounts required to be paid by Agent, Purchaser or the Merchant under any provision of this Agreement shall be made by wire transfer of immediately available funds which shall be wired by Agent, Purchaser or Merchant, as applicable, no later as 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent, Purchaser or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.

17.10 Nature of Remedies. Except to the extent expressly set forth herein, all

rights, remedies, powers, privilege and adjustments under Sections 3.1(b), 3.1(c), 3.4 and 11.1(o) shall be in addition to and not in limitation of those provided elsewhere in this Agreement or by applicable law. No failure to exercise and no delay in exercising, on the part of the Agent, any right, remedy, power, privilege or adjustment hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, privilege, or adjustment hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, privilege, or adjustment.

17.11 Further Assurances. From time to time, and without further

consideration, each of Merchant, Purchaser and Agent covenants and agrees that each such party shall execute and deliver, or shall cause to be executed and delivered, such other instruments of transfer and conveyance and other documents and take such other actions as the other party may reasonably request as necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement (including satisfaction of all closing conditions that are within the control of Merchant or Agent, as applicable, and reasonably cooperating with the Sale), and shall lend all reasonable assistance to the other party in conducting the Sale and otherwise in the carrying out of the intentions and purposes of this Agreement. Each of Merchant, Purchaser and Agent further covenants and agrees that it shall promptly deliver to the other party all such information and documents as such party shall reasonably request in connection with the Sale.

17.12 Entire Agreement. This Agreement, the APA and any separate

agreements between Agent and Purchaser (which separate agreements shall not in any way affect any of Merchant’s rights or expand its obligations hereunder) contain the entire agreement between the parties hereto with respect to the transactions contemplated hereby and supersedes and cancels all prior agreements, including, but not limited to, all proposals, letters of intent or representations, written or oral, with respect thereto.


38

IN WITNESS WHEREOF, the Agent, Purchaser and the Merchant hereby execute this Agreement by their duly authorized representatives as a sealed instrument as of the day and year first written above.

Z GALLERIE, LLC By: Name: Title:

[Signature Page to Agency Agreement]

Z GALLERIE HOLDING COMPANY, LLC By: Name: Title:

GREAT AMERICAN GROUP, LLC By: Name Title:

KKR CREDIT ADVISORS (US) LLC

By: Name Title:

DIRECTBUY HOME IMPROVEMENT, INC.

By: Name: Title:

ACKNOWLEDGED AND AGREED:


39

KEY BANK, N.A., on behalf of itself and the Lenders

By: Name: Title:


Exhibit G

Schedule of Additional Closing Stores


Tot l

27 Washington Prime Group ‐ Clay Terrace Partners, LLC Lease re: Store #73 (Clay Terrace), dated 10/15/2004

28 Westfield Corp. ‐ Annapolis Mall Owner LLC Lease re: Store #79 (Annapolis Mall), dated 11/11/2016

26 Town Center Lakeside ‐ Town Center Lakeside Ltd Lease re: Store #84 (Sugarland Town Square), dated 11/10/2005

25 TM Market ST ‐ TM Market Street LLC Lease re: Store #74 (Market St), dated 10/26/2002

24 The Irvine Company, LLC Lease re: Store #25 (Fashion Island), dated 11/1/1993

23 Taubman Centers, Inc. ‐ Davis Street Land Company of Tennessee LLC Lease re: Store #82 (Green Hills), dated 10/28/2005

22 Steiner & Assoc ‐ CBL & Associates Management Inc Lease re: Store #54 (Easton Gateway District), dated 8/1/2015

21 Skyview Drive LLC Lease re: Atlanta Distribution Center

19 Simon Property Group ‐ Shops at Sunset, LLC Lease re: Store #36 (The Shops at Sunset Place), dated 1/1/1999

20 Simon Property Group ‐ Woodfield Mall LLC Lease re: Store #30 (Woodfield Mall), dated 9/1/1995

18 Simon Property Group ‐ North George Premium Outlets Lease re: Store #6 (Georgia Premium Outlets), dated 4/28/2018

16 Simon Property Group ‐ Arboretum at Great Hills Lease re: Store #92 (Arboretum), dated 3/9/2012

17 Simon Property Group ‐ Del Amo Fashion Center Operating Company LLC Lease re: Store #94 (Del Amo Fashion Center), dated 10/9/2015

15 Shops At St. Johns LLC ‐ Shops at St. Johns Lease re: Store #22 (St Johns Town Center), dated 5/1/2018

14 Regency Galleria North Lease re: Store #42 (Dallas Galleria), dated 9/1/1999

13 Old Town De Lacey LLC Lease re: Store #8 (De Lacey Ave Pasadena), dated 4/28/2016

12 Macerich ‐ Macerich Arizona Partners LLC Lease re: Store #18 (Kierland Commons), dated 10/1/2000

10 Highland Village LTD Partnership ‐ Highland Village Holding, Inc. Lease re: Store #68 (Highland Village), dated 8/2/2003

11 Jones Lang LaSalle ‐ Perkins Rowe Associates II Lease re: Store #93 (Perkins Rowe), dated 10/26/2007

9 George P. Johnson Company ‐ Gardena Outlet Lease re: Store #12 (Gardena Outlet), dated 2/15/2009

8 General Growth Properties, Inc. ‐ Oakbrook Center Lease re: Store #40 (Oakbrook Center), dated 8/28/2014

7 Encinitas Town Center Assoc. ‐ Encinitas Town Center Associates I, LLC Lease re: Store #69 (Encinitas Ranch Town Center), dated 4/11/2015

6 Coventry II DDR/Trademark Montgomery Farm Lease re: Store #19 (Watters Creek), dated 6/1/2013

5 Clearfork Retail Venture Lease re: Store #17 (Shops at Clearfork), dated 9/14/2017

4 CBL & Associates ‐ JG North Raleigh LLC Lease re: Store #55 (Triangle Town Center), dated 8/14/2002

2 Beverly Drive Enterprises ‐ Beverly Drive Enterprises Lease re: Store #75 (Beverly Hills), dated 2/1/2005

3 BV Centercal, LLC Lease re: Store #76 (Bridgeport Village), dated 5/19/2005

1 119 Leawood LLC ‐ Town Center Crossing Lease re: Store #95 (Town Center Crossing), dated 7/2/2008

Z Gallerie



interest

Exhibit GSchedule of Additional Closing Stores


Date post:	04-Jul-2020
Category:	Documents
Upload:	others
View:	0 times
Download:	0 times