44512.00001

#4834-6336-7049v6

Dennis F. Dunne, Esq. (admitted pro hac vice) Michael A. Condyles, Esq. (VA 27807) 

Evan R. Fleck, Esq. (admitted pro hac vice) Peter J. Barrett, Esq. (VA 46179) 

Michael W. Price, Esq. (admitted pro hac vice) Jeremy S. Williams, Esq. (VA 77469) 

MILBANK LLP Brian H. Richardson, Esq. (VA 92477) 

55 Hudson Yards KUTAK ROCK LLP 

New York, New York 10001 901 East Byrd Street, Suite 1000 

Telephone: (212) 530-5000 Richmond, Virginia 23219-4071 

Facsimile: (212) 530-5219 Telephone: (804) 644-1700 

Facsimile: (804) 783-6192 

Co-Counsel for Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

) 

In re: ) Chapter 11 

) 

GYMBOREE GROUP, INC., et al.,1 ) Case No. 19-30258 (KLP) 

) 

Debtors. ) (Jointly Administered) 

) 

) 

ORDER (I) APPROVING THE SALE OF CERTAIN J&J ASSETS FREE AND 

CLEAR OF LIENS, CLAIMS, INTERESTS AND ENCUMBRANCES 

AND (II) APPROVING THE ASSUMPTION AND ASSIGNMENT 

OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN 

CONNECTION THEREWITH; AND (III) GRANTING RELATED RELIEF 

Upon the motion (the “Motion”),2 of the above-captioned debtors in possession 

(collectively, the “Debtors”), for entry of an order (this “Order”): (a)(i) approving Bidding 

Procedures, (ii) approving J&J Stalking Horse Agreement, (iii) scheduling an Auction and 

approving the form and manner of notice thereof, (iv) Approving Assumption and Assignment 

Procedures and (v) scheduling a Sale Hearing; (b) approving (i) the Sale(s), free and clear of 

1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification 

number, are: Gymboree Group, Inc. (6587); Gymboree Intermediate Corporation (1473); Gymboree 

Holding Corporation (0315); Gymboree Wholesale, Inc. (6588); Gym-Mark, Inc. (6459); Gymboree 

Operations, Inc. (6463); Gymboree Distribution, Inc. (8669); Gymboree Manufacturing, Inc. (6464); 

Gymboree Retail Stores, LLC (6461); Gym-Card, LLC (5720); and Gymboree Island, LLC (1215). The 

Debtors’ service address is 71 Stevenson Street, Suite 2200, San Francisco, California 94105. 

2 Capitalized terms not specifically defined herein shall have the meaning assigned to them in the Motion. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 1 of 105
2 

#4834-6336-7049v6

Encumbrances and (ii) assumption and assignment of executory contracts and unexpired leases; 

and (c) granting related relief, all as more fully set forth in the Motion; and upon the Declaration 

of Stephen Coulombe in Support of First Day Pleadings (the “First Day Declaration”), the 

Declaration of James Doak in support of the Motion that was attached thereto as Exhibit B (the 

“Initial Doak Declaration”), and the Supplemental Declaration of James Doak in support of the 

Motion [Docket No. 463] (the “Supplemental Doak Declaration”); and upon the Order 

(I)(A) Approving Bidding Procedures, (B) Approving J&J Stalking Horse Purchase Agreement, 

(C) Scheduling an Auction and Approving the Form and Manner of Notice Thereof, 

(D) Approving Assumption and Assignment Procedures and (E) Scheduling a Sale Hearing and 

Approving the Form and Manner of Notice Thereof and (II) Granting Related Relief [Docket No. 

76] (the “Bidding Procedures Order”); and an auction (the “Auction”) having been held on 

March 1, 2019 in accordance with the Bidding Procedures Order; and the Debtors having filed 

the Notice of Successful Bidders, Sale Hearing, and Adjournment of the Adequate Assurance 

Objection Deadline [Docket No. 455] and the Amended Notice of Successful Bidders, Sale 

Hearing, and Adjournment of the Adequate Assurance Objection Deadline [Docket No. 457], 

designating The Gap, Inc. (the “Purchaser”) as the Successful Bidder for the assets (the “JJ 

Assets”) purchased pursuant to (x) the Asset Purchase Agreement dated March 1, 2019 (the “JJ 

Purchase Agreement”) between certain of the Debtors and the Purchaser, which JJ Purchase 

Agreement is attached hereto as Exhibit 1 and (y) the Asset Purchase Agreement and Bill of Sale 

(the “Inventory Purchase Agreement and together with the JJ Purchase Agreement, the 

“Purchase Agreement”) by and among Gymboree Group, Inc., the Purchaser, and GA Retail, 

Inc., Tiger Capital Group, LLC, Gordon Brothers Retail Partners, LLC, and Hilco Merchant 

Resources, LLC (collectively, “Agent”), which Inventory Purchase Agreement is attached hereto 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 2 of 105
3 

#4834-6336-7049v6

as Exhibit 2; and the Sale Hearing having been held on March 4, 2019 to consider the remaining 

relief requested in the Motion and approval of the Purchase Agreement; and appearances of all 

interested parties having been noted on the record of the Sale Hearing; and upon all of the 

proceedings had before this Court (including the testimony and other evidence proffered or 

adduced at the Sale Hearing); and this Court having jurisdiction over this matter pursuant to 28 

U.S.C. §§ 157 and 1334 and the Standing Order of Reference from the United States District 

Court for the Eastern District of Virginia, dated July 10, 1984; and this Court having the 

authority to enter an order consistent with Article III of the United States Constitution; and this 

Court having found that venue of this proceeding and the Motion in this district is proper 

pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that the relief requested in 

the Motion is in the best interests of the Debtors’ estates, their creditors, and other parties in 

interest; and this Court having found that the Debtors’ notice of the Motion and opportunity for a 

hearing on the Motion were appropriate under the circumstances and no other notice need be 

provided; and this Court having reviewed the Motion and having heard the statements in support 

of the relief requested therein at a hearing before this Court; and this Court having determined 

that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for 

the relief granted herein; and upon all of the proceedings had before this Court; and after due 

deliberation and sufficient cause appearing therefor, 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 3 of 105
4 

#4834-6336-7049v6

IT IS HEREBY FOUND AND DETERMINED THAT:

3

A. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b). This 

matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). 

B. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. 

C. This Sale Order constitutes a final order within the meaning of 28 U.S.C. § 

158(a). 

D. The statutory predicates for the relief requested in the Motion are (i) Sections 

105(a), 363, and 365 of the Bankruptcy Code, (ii) Bankruptcy Rules 2002, 6004, 6006, 9007, 

9008 and 9014, and (iii) Local Bankruptcy Rules 2002-1 and 6004-2. 

E. Notice of the Motion and the hearing on the Bidding Procedures and the Sale 

Hearing was sufficient under the circumstances and no other or further notice need be provided 

except as set forth in the Bidding Procedures and the Assumption and Assignment Procedures. A 

reasonable opportunity to object and be heard regarding the relief requested in the Motion has 

been afforded to parties in interest. 

F. As demonstrated by (i) the First Day Declaration, the Initial Doak Declaration, 

and the Supplemental Doak Declaration; (ii) the testimony and other evidence proffered or 

adduced at the hearing with respect to the approval of the bidding procedures held on January 17, 

2019 (the “Bidding Procedures Hearing”) and the Sale Hearing; and (iii) the representations of 

counsel made on the record at the Bidding Procedures Hearing and the Sale Hearing, the Debtors 

and their advisors thoroughly marketed the JJ Assets and conducted the marketing and sale 

process as set forth in and in accordance with the Motion and the Bidding Procedures Order. 

3 The findings of fact and the conclusions of law stated herein shall constitute the Court’s findings of fact 

and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to 

Bankruptcy Rule 9014. To the extent any finding of fact shall be determined to be a conclusion of law, it 

shall be so deemed, and to the extent any conclusion of law shall be determined to be a finding of fact, it 

shall be so deemed. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 4 of 105
5 

#4834-6336-7049v6

Based upon the record of these proceedings, all creditors and other parties in interest and all 

prospective purchasers have been afforded a reasonable and fair opportunity to bid for the assets. 

G. Compliance with Bidding Procedures: The Debtors conducted a fair and open 

sale process in a manner reasonably calculated to produce the highest or otherwise best offer for 

the JJ Assets in compliance with the Bidding Procedures Order. The sale process and the 

Bidding Procedures were non-collusive, substantively and procedurally fair to all parties and to 

each person or entity that desired to participate in the Auction and afforded notice and a full, fair 

and reasonable opportunity for any person to make a higher or otherwise better offer for the 

assets. The Bidding Procedures have been complied with in all material respects by the Debtors 

and the Purchaser. 

H. Highest and Best Offer: After the conclusion of the Auction held on March 1, 

2019 and in accordance with the Bidding Procedures, the Debtors determined in a valid and 

sound exercise of their business judgment that the highest and best Qualified Bid for the JJ 

Assets was that of the Purchaser. The consideration provided by the Purchaser for the JJ Assets 

provides fair and reasonable consideration to the Debtors for the sale of the JJ Assets and the 

assumption of all Assumed Liabilities (as defined and limited in the Purchase Agreement), and 

the performance of the other covenants set forth in the Purchase Agreement will provide a 

greater recovery for Debtors’ estates than would have been provided by any other available 

alternative. 

I. Court Approval Required. Entry of an order approving and authorizing the 

Debtors’ entry into the Purchase Agreement and the Debtors’ performance of all the provisions 

thereof is a necessary condition precedent to the Purchaser’s consummation of the Sale. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 5 of 105
6 

#4834-6336-7049v6

J. Business Judgment: The Debtors’ decisions to (i) enter into the Purchase 

Agreement, (ii) perform under such Purchase Agreement and (iii) amend the Agency Agreement 

(as defined in the Inventory Purchase Agreement) through the amendment contained in the 

Inventory Purchase Agreement constitute reasonable exercises of the Debtors’ sound business 

judgment consistent with their fiduciary duties and is in the best interests of the Debtors, their 

estates, their creditors, and all other parties in interest. Good and sufficient reasons for the 

approval of the Purchase Agreement have been articulated by the Debtors. The Debtors have 

demonstrated compelling circumstances for the Sale outside: (i) the ordinary course of business, 

pursuant to section 363(b) of the Bankruptcy Code and (ii) a plan of reorganization, in that, 

among other things, the immediate consummation of the Sale is necessary and appropriate to 

preserve and maximize the value of the Debtors’ estates. To maximize the value of the JJ Assets 

and preserve the viability of the business to which the JJ Assets relate, it is essential that the Sale 

occur promptly. 

K. Time is of the Essence: Time is of the essence to implement the Purchase 

Agreement and to consummate the Sale contemplated thereby without interruption. Based on the 

record of the Sale Hearing, and for the reasons stated on the record at the Sale Hearing, in the 

First Day Declaration, the Initial Doak Declaration, and the Supplemental Doak Declaration, the 

Sale contemplated by the Purchase Agreement must be consummated as soon as possible 

following entry of this Sale Order, and in any event by the later of (i) March 15, 2019 and (ii) 5 

calendar days after all necessary and regulatory approvals are completed, to maximize the value 

that the Purchaser may realize from the Sale, and the value that the Debtors may realize from 

entering into the Purchase Agreement. Accordingly, cause exists to lift the stay to the extent 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 6 of 105
7 

#4834-6336-7049v6

necessary, as contemplated by Bankruptcy Rules 4001(a) and 6004(h), and permit the immediate 

effectiveness of this Sale Order. 

L. Sale Free and Clear: Except for liabilities assumed by the Purchaser pursuant to 

the Purchase Agreement, a sale of the JJ Assets other than one free and clear of liens, defenses 

(including rights of setoff and recoupment) and interests, including, without limitation, security 

interests of whatever kind or nature, all debts, obligations, mortgages, conditional sales or title 

retention agreements, pledges, deeds of trust, hypothecations, liens, encumbrances, assignments, 

preferences, debts, easements, charges, suits, licenses, options, rights-of-recovery, rights of first 

refusal, judgments, orders and decrees of any court or foreign or domestic governmental entity, 

taxes (including foreign, state and local taxes, including, without limitation, bulk sale taxes), 

licenses, covenants, restrictions, indentures, instruments, leases, options, off-sets, claims for 

reimbursement, contribution, indemnity or exoneration, successor, product, environmental, tax, 

labor, Employee Retirement Income Security Act of 1974 (“ERISA”), wages and benefits, 

Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et 

seq. (“CERCLA”), alter ego and other liabilities, causes of action, contract rights and claims, to 

the fullest extent of the law, in each case, of any kind or nature (including all “claims” as defined 

in section 101(5) of the Bankruptcy Code), known or unknown, whether prepetition or 

postpetition, secured or unsecured, choate or inchoate, filed or unfiled, scheduled or 

unscheduled, perfected or unperfected, liquidated or unliquidated, noticed or unnoticed, allowed 

or disallowed, recorded or unrecorded, contingent or non-contingent, material or non-material, 

statutory or non-statutory, matured or unmatured, legal or equitable, disputed or undisputed, 

whether arising prior to or subsequent to the commencement of these Cases, and whether 

imposed by agreement, understanding, law, equity or otherwise, including any and all such 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 7 of 105
8 

#4834-6336-7049v6

liabilities, causes of action, contract rights and claims arising out of Debtors’ continued 

operations following the Closing Date (as defined in the Purchase Agreement), (collectively, 

“Encumbrances”) and without the protections of this Sale Order would hinder the Debtors’ 

ability to obtain the consideration provided for in the Purchase Agreement and, thus, would 

impact materially and adversely the value that the Debtors’ estates would be able to obtain for 

the sale of such JJ Assets. But for the protections afforded to the Purchaser under the 

Bankruptcy Code and this Sale Order, the Purchaser would not have offered to pay the 

consideration contemplated in the Purchase Agreement. In addition, each entity with an 

Encumbrance upon the JJ Assets, (i) has consented to the Sale or is deemed to have consented to 

the Sale, (ii) could be compelled in a legal or equitable proceeding to accept money satisfaction 

of such interest, or (iii) otherwise falls within the provisions of section 363(f) of the Bankruptcy 

Code, and therefore, in each case, one or more of the standards set forth in section 363(f)(1)-(5) 

of the Bankruptcy Code has been satisfied. Those holders of Encumbrances who did not object, 

or who withdrew their objections, to the Motion are deemed to have consented pursuant to 

section 363(f)(2) of the Bankruptcy Code. All holders of Encumbrances are adequately 

protected—thus satisfying section 363(e) of the Bankruptcy Code—by having their 

Encumbrances, if any, attach to the proceeds of the Sale (other than proceeds constituting the 

J&J Option Payment), in the same order of priority and with the same validity, force and effect 

that such Encumbrances had before the Sale, subject to any rights, claims and defenses of the 

Debtors or their estates, as applicable, or as otherwise provided herein. Therefore, approval of 

the Purchase Agreement and the consummation of the Sale free and clear of Encumbrances is 

appropriate pursuant to section 363(f) of the Bankruptcy Code and is in the best interests of the 

Debtors’ estates, their creditors and other parties in interest. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 8 of 105
9 

#4834-6336-7049v6

M. The recitation, in the immediately preceding paragraph of this Sale Order, of 

specific agreements, plans or statutes is not intended, and shall not be construed, to limit the 

generality of the categories of liabilities, debts, commitments or obligations referred to as 

“Encumbrances” therein. 

N. In addition to the foregoing, the Court finds and concludes that the JJ Assets may 

be sold to the Purchaser free and clear of any mechanics’ or warehouse liens on the JJ Assets. 

O. The Purchaser would not have entered into the Purchase Agreement and would 

not consummate the sale of the JJ Assets, thus adversely affecting the Debtors, their estates, 

creditors, employees and other parties in interest, if such sale was not free and clear of all 

Encumbrances (other than Permitted Liens and Assumed Liabilities (each as defined in the 

Purchase Agreement)). A sale of the JJ Assets, other than one free and clear of all 

Encumbrances, would yield substantially less value for the Debtors’ estates, with less certainty 

than the Sale. 

P. Arms’-length Sale: The consideration to be paid by the Purchaser under the 

Purchase Agreement was negotiated at arm’s-length and constitutes reasonably equivalent value 

and fair and adequate consideration for the JJ Assets under the Bankruptcy Code, the Uniform 

Fraudulent Transfer Act, the Uniform Fraudulent Conveyance Act, the Uniform Voidable 

Transactions Act, and the laws of the United States, any state, territory, possession thereof or the 

District of Columbia. The terms and conditions set forth in the Purchase Agreement are fair and 

reasonable under these circumstances and were not entered into with the intent to nor for the 

purpose of, nor do they have the effect of, hindering, delaying or defrauding the Debtors or their 

creditors under any applicable laws. None of the Debtors or the Purchaser is entering into the 

Purchase Agreement or proposing to consummate the Sale through collusion or fraud (for the 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 9 of 105
10 

#4834-6336-7049v6

purpose of statutory or common law fraudulent conveyance or fraudulent transfer claims, 

whether under the Bankruptcy Code or under the laws of the United States, any state, territory, 

possession thereof or the District of Columbia or any other applicable jurisdiction). 

Q. Good Faith: The Debtors, their management and their boards of directors or 

equivalent governing bodies and the Purchaser and its officers, directors, employees, agents and 

representatives actively participated in the bidding process and respectively acted in good faith 

and without collusion. The Purchase Agreement was negotiated and entered into based upon 

arm’s-length bargaining, without collusion or fraud, and in good faith as that term is used in 

sections 363(m) and 364(e) of the Bankruptcy Code. The Purchaser is entering into the Sale in 

good faith and is a good faith purchaser within the meaning of section 363(m) of the Bankruptcy 

Code and the court decisions applying or interpreting such provision, and is therefore entitled to 

the full protection of sections 363(m) and 364(e) of the Bankruptcy Code with respect to all 

aspects of the transactions contemplated by the Purchase Agreement, including the acquisition of 

the JJ Assets, and otherwise has proceeded in good faith in all respects in connection with this 

proceeding. The Debtors were free to deal with any other party interested in buying or selling on 

behalf of the Debtors’ estate some or all of the JJ Assets. Neither the Debtors, the Purchaser, nor 

the Agent have engaged in any conduct that would cause or permit the Sale, the Purchase 

Agreement, or any related action or the transactions contemplated thereby to be avoided or 

subject to monetary damages under section 363(n) of the Bankruptcy Code, or that would 

prevent the application of sections 363(m) or 364(e) of the Bankruptcy Code. The Purchaser has 

not violated section 363(n) of the Bankruptcy Code by any action or inaction. Specifically, the 

Purchaser has not acted in a collusive manner with any person or entity nor was its bidding or 

participation in the Auction controlled by any agreement among bidders. The Purchaser’s 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 10 of 105
11 

#4834-6336-7049v6

prospective performance and payment of amounts owing under the Purchase Agreement will be 

undertaken in good faith and for valid business purposes and uses. 

R. Insider Status: The Purchaser is not an “insider” of any Debtor, as that term is 

defined in section 101(31) of the Bankruptcy Code. No common identity of directors or 

controlling stockholders exists between the Purchaser and the Debtors. 

S. Corporate Authority: Upon entry of this Order, the Debtors have (i) full corporate 

or other power to execute, deliver and perform their obligations under the Purchase Agreement 

and all other transactions contemplated thereby and entry into the Purchase Agreement has been 

duly and validly authorized by all necessary corporate or similar action, (ii) all of the corporate 

or other power and authority necessary to consummate the Sale, and (iii) taken all actions 

necessary to authorize and approve the Purchase Agreement and the Sale. No consents or 

approvals, other than those expressly provided for herein or in the Purchase Agreement, are 

required for the Debtors to consummate such transaction. 

T. The Purchaser shall have no obligations with respect to any Encumbrances 

against or in respect of any of the Debtors or the JJ Assets (other than Permitted Liens and 

Assumed Liabilities, each as defined in the Purchase Agreement). 

U. The consummation of the Sale is legal, valid and properly authorized under all 

applicable provisions of the Bankruptcy Code, including sections 105(a), 363(b), 363(f), 363(m) 

and 363(n) of the Bankruptcy Code and Rules 2002, 4001, 6004 and 9014 of the Bankruptcy 

Rules. 

V. The JJ Assets constitute property of the Debtors’ estates and title thereto is 

presently vested in the Debtors’ estates within the meaning of section 541(a) of the Bankruptcy 

Code. The Debtors are the sole and rightful owners of the JJ Assets, and no other person has any 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 11 of 105
12 

#4834-6336-7049v6

ownership right, title, or interest therein, except for the liens and claims described in that certain 

Final DIP Order4

 and the Interim DIP Order5 (collectively, the “DIP Orders”), as applicable and 

the interests of the Agent pursuant to the Agency Agreement and the Agency Agreement Order. 

The sale of the JJ Assets to the Purchaser will be, as of the Closing Date under the Purchase 

Agreement or such later date as such JJ Assets are transferred under the Purchase Agreement, a 

legal, valid and effective transfer of such assets, and each transfer and assignment vests or will 

vest the Purchaser with all right, title and interest of the Debtors to the JJ Assets free and clear of 

all Encumbrances (other than Permitted Liens and Assumed Liabilities).6

W. Assumption and Assignment of Contracts: The assumption and assignment of the 

Assumed Contracts (as defined in the Purchase Agreement) are an integral part of the Purchase 

Agreement and may be amended, supplemented or otherwise modified prior to assumption and 

assignment without further order of this Court with the consent of the Debtors, the applicable 

counterparty(s) and the Purchaser. The assumption and assignment of the Assumed Contracts 

does not constitute unfair discrimination, is in the best interests of the Debtors, their estates, their 

creditors and all other parties in interest, and represents the reasonable exercise of sound and 

prudent business judgment by the Debtors. 

4 The Final DIP Order shall mean that certain Final Order (I) Authorizing The Debtors To Obtain 

Postpetition Financing, (Ii) Authorizing The Debtors To Use Cash Collateral, (Iii) Granting Liens And 

Providing Superpriority Administrative Expense Status, (Iv) Granting Adequate Protection To The 

Prepetition Lenders, (V) Modifying Automatic Stay, And (Vi) Granting Related Relief [Docket No. 348] 

5 The Interim DIP Order shall mean that certain Amended Interim Order (I) Authorizing The Debtors To 

Obtain Postpetition Financing, (Ii) Authorizing The Debtors To Use Cash Collateral, (Iii) Granting Liens 

And Providing Superpriority Administrative Expense Status, (Iv) Granting Adequate Protection To The 

Prepetition Lenders, (V) Modifying Automatic Stay, (Vi) Scheduling A Final Hearing, And (Vii) Granting 

Related Relief [Docket No. 88]. 

6 For the avoidance of doubt, the occurrence of the Closing Date shall require the payment of the J&J Option 

Payment in accordance with the Agency Agreement (as amended by the Inventory Purchase Agreement) at 

which time the J&J Option shall have been exercised. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 12 of 105
13 

#4834-6336-7049v6

X. The Debtors have met all requirements of section 365(b) of the Bankruptcy Code 

for each of the Assumed Contracts. Pursuant to the Purchase Agreement, the Debtors, and, 

solely with respect to the assumed Cure Costs (as defined in the Purchase Agreement), the 

Purchaser, has (i) cured (or will cure with respect to any Cure Costs subject to a timely Cure 

Objection) any default existing prior to the assignment of the Assumed Contracts to the 

Purchaser in accordance with the terms of the Purchase Agreement, under each of the Assumed 

Contracts, within the meaning of section 365(b)(1)(A) of the Bankruptcy Code; and (ii) provided 

compensation or adequate assurance of compensation to any counterparty for actual pecuniary 

loss to such party resulting from a default prior to the assignment of any of the Assumed 

Contracts, within the meaning of section 365(b)(1)(B) of the Bankruptcy Code. Each of the 

Assumed Contracts shall be assumed and assigned to the Purchaser free and clear of all 

Encumbrances (other than the Permitted Liens and Assumed Liabilities or otherwise as set forth 

in the Purchase Agreement) against the Purchaser. 

Y. The Purchaser has demonstrated adequate assurance of its future performance 

under each Assumed Contract within the meaning of section 365(b)(1)(C) and 365(f)(2)(B) of 

the Bankruptcy Code. Pursuant to section 365(f) of the Bankruptcy Code, the Assumed 

Contracts to be assumed and assigned under the Purchase Agreement shall be assigned and 

transferred to, and remain in full force and effect for the benefit of, the Purchaser 

notwithstanding any provision in the Assumed Contracts or other restrictions prohibiting their 

assignment or transfer. 

Z. No monetary or non-monetary defaults exist in the Debtors’ performance under 

the Assumed Contracts as of the date of this Sale Order other than the failure to pay amounts 

equal to the Cure Costs (as defined below) or defaults that are not required to be cured as 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 13 of 105
14 

#4834-6336-7049v6

contemplated in section 365(b)(1)(A) of the Bankruptcy Code. In accordance with the terms set 

forth in the Purchase Agreement and this Sale Order, the Purchaser shall pay the Cure Costs for 

each of the Assumed Contracts. 

AA. No Successor Liability: No sale, transfer or other disposition of the JJ Assets 

pursuant to the Purchase Agreement or entry into the Purchase Agreement will subject the 

Purchaser or its affiliates, successors or assigns or any of their respective assets (including the JJ 

Assets) to any liability for claims, obligations or Encumbrances asserted against the Debtors or 

the Debtors’ interests in such JJ Assets by reason of such transfer under any laws, including, 

without limitation, any bulk-transfer laws or any theory of successor or transferee liability, 

antitrust, environmental, product line, derivative liability, vicarious liability, alter ego, de facto

merger or substantial continuity or similar theories. By virtue of the consummation of the Sale 

contemplated by the Purchase Agreement, (i) the Purchaser is not a continuation of the Debtors 

and their respective estates, there is no continuity or continuity of enterprise between Purchaser 

and the Debtors, there is no common identity between the Debtors and the Purchaser, (ii) the 

Purchaser is not holding itself out to the public as a continuation of the Debtors or their 

respective estates, and (iii) the Sale does not amount to a consolidation, merger or de facto

merger of Purchaser and the Debtors and/or the Debtors’ estates. Accordingly, the Purchaser and 

its affiliates, successors and assigns are not and shall not be deemed a successor to the Debtors or 

their respective estates as a result of the consummation of the Sale contemplated by the Purchase 

Agreement. 

BB. No Sub Rosa Plan: Entry into the Purchase Agreement and the transactions 

contemplated thereby neither impermissibly restructure the rights of the Debtors’ creditors, nor 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 14 of 105
15 

#4834-6336-7049v6

impermissibly dictate the terms of a chapter 11 plan of reorganization for the Debtors. Entry into 

the Purchase Agreement does not constitute a sub rosa chapter 11 plan. 

CC. Nothing in the Purchase Agreement creates any third party beneficiary rights in 

any entity not a party to the respective Purchase Agreement. 

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED 

THAT:

7

A. Motion Granted, Objections Overruled 

1. The relief requested in the Motion is GRANTED as set forth herein. Any 

remaining objections to the Motion or the relief requested therein that have not been withdrawn, 

waived, or settled, and all reservations of rights included in such objections are overruled on the 

merits with prejudice and denied. All parties and entities given notice of the Motion that failed 

to timely object thereto are deemed to consent to the relief sought therein. 

2. This Court’s findings of fact and conclusions of law in the Bidding 

Procedures Order and the record of the Bidding Procedures Hearing are incorporated herein by 

reference. 

B. The Purchase Agreement Is Approved and Authorized 

3. The Purchase Agreement is approved pursuant to sections 105 and 363 of 

the Bankruptcy Code and Rules 2002, 4001, 6004 and 9014 of the Bankruptcy Rules. The 

Debtors are hereby authorized and directed to perform under the Purchase Agreement (and each 

of the transactions contemplated thereby is hereby approved in its entirety and is incorporated 

herein by reference). The failure to include specifically any particular provision of the Purchase 

Agreement in this Sale Order shall not diminish or impair the effectiveness of such provisions, it 

being the intent of this Court that the Purchase Agreement, and all of its provisions and the 

7 To the extent any findings of fact constitute conclusions of law, they are adopted as such, and vice versa. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 15 of 105
16 

#4834-6336-7049v6

payments and transactions provided for therein shall be authorized and approved in their entirety, 

including the amendment of the Agency Agreement effected by the Inventory Purchase 

Agreement. Likewise, all of the provisions of this Sale Order are non-severable and mutually 

dependent. 

4. Subject to the provisions of this Sale Order, the Debtors and the Purchaser 

are hereby authorized, pursuant to sections 105(a) and 363(b)(1) of the Bankruptcy Code, to 

consummate the Sale in accordance with the Purchase Agreement, without any further order of 

this Court. 

5. Pursuant to section 363(b) of the Bankruptcy Code, and without any 

further order of this Court, corporate act or action under applicable law, regulation, order or rule 

or the vote, consent, authorization or approval of any entity , the Debtors, the Purchaser and each 

of their respective officers, employees and agents are hereby authorized and directed to fully 

perform under, consummate and implement the terms of the Purchase Agreement together with 

any and all additional instruments and documents that may be reasonably necessary or desirable 

to implement and effectuate the terms of the Purchase Agreement, this Sale Order and the Sale 

(including, without limitation, executing, delivering, filing, recording and issuing any notes, 

documents, or agreements in connection with this Sale Order and the Sale). 

6. The Debtors are hereby authorized and directed to instruct an escrow 

agent to (i) hold the Good Faith Deposit (as increased by the Incremental Deposit Amount (as 

defined in the Bidding Procedures), if applicable) funded by the Successful Bidder in accordance 

with the Purchase Agreement and release and deliver such Good Faith Deposit pursuant to the 

terms of such Purchase Agreement, and (b) hold the Good Faith Deposit (as increased by the 

Incremental Deposit Amount (as defined in the Bidding Procedures), if applicable) funded by 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 16 of 105
17 

#4834-6336-7049v6

any Backup Bidder, in accordance with the Bidding Procedures, and release and deliver such 

Good Faith Deposit upon the earlier of (i) three business days after the closing of a Sale with the 

Successful Bidder for the applicable Assets and (ii) 75 days after the date of the Sale Hearing. 

C. Sale and Transfer Free and Clear of Encumbrances 

7. Upon the Closing Date (as defined in the Purchase Agreement), all of the 

Debtors’ legal, equitable and beneficial right, title and interest in and to, and possession of, the JJ 

Assets shall be immediately vested in the Purchaser pursuant to sections 105(a), 363(b) 

and 363(f) of the Bankruptcy Code free and clear of Encumbrances (other than Permitted Liens 

and Assumed Liabilities); provided, however, that the proceeds of the Sale shall be applied as set 

forth herein and thereafter all remaining Encumbrances shall attach to the proceeds of the Sale 

(other than the proceeds constituting the J&J Option Payment, as to which no such 

Encumbrances shall attach) in the order of their priority, with the same validity, force and effect 

that they now have against the JJ Assets (subject with respect to such proceeds to any rights, 

claims and defenses the Debtors or any parties in interest may possess with respect thereto). On 

the Closing Date, this Sale Order shall be considered, and constitute for any and all purposes, a 

legal, valid, binding, effective and compete general assignment, conveyance and transfer of the 

JJ Assets and a bill of sale or assignment transferring indefeasible title in the JJ Assets to the 

Purchaser and shall vest Purchaser with good and marketable title to the JJ Assets. In connection 

with the Closing Date, the Purchaser shall pay the portion of the Purchase Price under the 

Inventory Purchase Agreement that constitutes the J&J Option Payment directly to the Agent and 

the Agent is authorized to accept such payment. 

8. Subject to the terms of the Purchase Agreement, the holders of claims 

related solely to the Permitted Liens and Assumed Liabilities shall have the right to seek 

payment directly from the Purchaser on account of the Permitted Liens and Assumed Liabilities; 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 17 of 105
18 

#4834-6336-7049v6

provided, however, that the Purchaser reserves any and all rights, defenses or objections with 

regard to such Permitted Liens and Assumed Liabilities, including the Purchaser’s rights 

hereunder and under the Purchase Agreement. 

D. Order Binding 

9. All (i) entities, including all filing agents, filing officers, title agents, title 

companies or title agents, recorders of mortgages, recorders of deeds, registrars of deeds, 

administrative agencies, governmental departments, secretaries of state, and federal, state and 

local officials, and (ii) other persons, in each case, who may be required by operation of law, the 

duties of their office, or contract to accept, file, register or otherwise record or release any 

documents or instruments, or who may be required to report or insure any title or state of title in 

or to the JJ Assets, shall be authorized and directed to take any such actions in connection with 

the Sale or this Sale Order, and this Sale Order shall be binding upon such entities or persons. 

All entities or persons described in this paragraph are authorized and specifically directed to 

strike all recorded Encumbrances against the JJ Assets from their records, official and otherwise. 

10. This Sale Order and the terms and provisions of the Purchase Agreement 

shall be binding on all of the Debtors’ creditors (whether known or unknown), the Debtors, the 

Purchaser, and each of their respective affiliates, successors and assigns, and any affected third 

parties, including all persons asserting an interest in the JJ Assets, notwithstanding any 

subsequent appointment of any trustee, party, entity or other fiduciary under any section of the 

Bankruptcy Code with respect to the forgoing parties, and as to such trustee, party, entity or 

other fiduciary, such terms and provisions likewise shall be binding. The provisions of this Sale 

Order and the terms and provisions of the Purchase Agreement, and any actions taken pursuant 

hereto or thereto shall survive the entry of any order, which may be entered confirming or 

consummating any plan(s) of the Debtors or converting these Cases from chapter 11 to chapter 7, 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 18 of 105
19 

#4834-6336-7049v6

and the terms and provisions of the Purchase Agreement, as well as the rights and interests 

granted pursuant to this Sale Order and the Purchase Agreement, shall continue in these or any 

superseding cases and shall be binding upon the Debtors, the Purchaser and their respective 

successors and permitted assigns. 

11. Except with respect to the Assumed Liabilities, all persons and entities 

(and their respective successors and assigns), including all debt security holders, equity security 

holders, affiliates, governmental, tax and regulatory authorities, lenders, customers, vendors, 

employees, trade creditors, litigation claimants and other creditors or other interest holders 

holding Encumbrances arising under or out of, in connection with, or in any way relating to, the 

Debtors, the JJ Assets, the ownership, sale or operation of the JJ Assets and the business prior to 

the Closing Date or the transfer of JJ Assets to Purchaser, are forever barred, estopped and 

permanently enjoined from asserting such Encumbrances against the Purchaser, its property or 

the JJ Assets. All persons and entities shall be precluded from asserting against the Purchaser, or 

its assets or properties, any Encumbrances based upon any act or omission, transaction or other 

activity of any kind or nature of the Debtors that occurred prior to or after the Closing Date. 

Following the Closing Date, no holder of any Encumbrance shall interfere with the Purchaser’s 

title to or use and enjoyment of the JJ Assets based on or related to any such Encumbrance, or 

based on any action the Debtors may take in these Cases. 

12. If any person or entity that has filed financing statements, mortgages, 

mechanic’s liens, lis pendens or other documents or agreements evidencing Encumbrances 

against or in the JJ Assets shall not have delivered to the Debtors prior to the Closing Date of the 

Sale(s) in proper form for filing and executed by the appropriate parties termination statements 

or instruments of satisfaction or release of all Encumbrances that such person or entity has with 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 19 of 105
20 

#4834-6336-7049v6

respect to such JJ Assets, then only with regard to the JJ Assets that are purchased by the 

Purchaser pursuant to the Purchase Agreement and this Sale Order, (a) the Debtors are hereby 

authorized and empowered to cause to be executed and filed such statements, instruments, 

releases and other documents on behalf of such person or entity with respect to the JJ Assets that 

are necessary or appropriate to effectuate the Sale, any related agreements and this Sale Order, 

including amended and restated certificates or articles of incorporation and by-laws or 

certificates or articles of amendment, and all such other actions, filings, or recordings as may be 

required under appropriate provisions of the applicable laws of all applicable governmental units 

or as any of the officers of the Debtors may determine are necessary or appropriate and (b) the 

Purchaser is hereby authorized and empowered to cause to be filed, registered or otherwise 

recorded a certified copy of this Sale Order, which, once filed, registered or otherwise recorded, 

shall constitute conclusive evidence of the release of all Encumbrances against the Purchaser and 

the applicable JJ Assets. This Sale Order is deemed to be in recordable form sufficient to be 

placed in the filing or recording system of each and every federal, state, or local government 

agency, department or office. 

E. Good Faith 

13. None of the Debtors, the Agent, or the Purchaser has engaged in any 

action or inaction that would cause or permit the Sale(s) to be avoided or costs or damages to be 

imposed under section 363(n) of the Bankruptcy Code. Entry into the Purchase Agreement is 

undertaken by the parties thereto, without collusion and in good faith, as that term is used in 

sections 363(m) and 364(e) of the Bankruptcy Code, and the Purchaser shall be entitled to all of 

the benefits of and protections under sections 363(m) and 364(e) of the Bankruptcy Code. 

Because the Purchaser has proceeded in good faith in all respects in connection with this 

proceeding, and is a “good faith purchaser” within the meaning of Section 363(m) of the 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 20 of 105
21 

#4834-6336-7049v6

Bankruptcy Code, the reversal or modification on appeal of the authorization provided herein to 

enter into the Purchase Agreement and consummate the Sale(s) shall not affect the validity of 

such Sale(s), unless such authorization is duly stayed pending such appeal. The Sale is not 

subject to avoidance pursuant to section 363(n) or chapter 5 of the Bankruptcy Code and the 

Purchaser is entitled to all the protections and immunities thereunder. 

F. No Successor or Transferee Liability; Release 

14. The Purchaser shall not be deemed, as a result of any action taken in 

connection with the Purchase Agreement, the consummation of the Sale, or the transfer, 

operation or use of the JJ Assets, to (a) be a legal successor, or otherwise be deemed a successor 

to the Debtors (other than, for the Purchaser, with respect to any obligations arising after the 

Closing Date as an assignee under the Assumed Contracts); (b) have, de facto or otherwise, 

merged with or into the Debtors; or (c) be an alter ego or a mere continuation or substantial 

continuation or successor in any respect of the Debtors, including within the meaning of any 

foreign, federal, state or local revenue, pension, antitrust, ERISA, tax, labor, employment, 

welfare and benefits, environmental or other law, rule or regulation (including filing 

requirements under any such laws, rules or regulations), or under any right or option to effect any 

forfeiture modification, right of first refusal, or termination of the Debtors’ or the Purchaser’s 

interest in the JJ Assets, or under any products liability law or doctrine with respect to the 

Debtors’ liability under such law, rule or regulation or doctrine. 

15. Except as expressly provided in the Purchase Agreement with respect to 

Assumed Liabilities, the Purchaser shall have no liability whatsoever with respect to the Debtors’ 

(or their predecessors or affiliates) respective businesses or operations or any of the Debtors’ (or 

their predecessors’ or affiliates’) obligations (as described below, “Successor or Transferee 

Liability”) based, in whole or part, directly or indirectly, on any theory of derivative, successor 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 21 of 105
22 

#4834-6336-7049v6

or vicarious liability of any kind or character, or based upon any theory of labor law, 

employment law, tax law, ERISA, welfare and benefits law, antitrust, environmental, successor 

or transferee liability, de facto merger, alter ego or mere or substantial continuity, labor and 

employment or products liability, whether known or unknown as of the Closing Date, now 

existing or hereafter arising, asserted or unasserted, fixed or contingent, liquidated or 

unliquidated, including any liabilities or non-monetary obligations on account of any settlement 

or injunction, or any taxes arising, accruing or payable under, out of, in connection with, or in 

any way relating to the operation of the JJ Assets or the business prior to the Closing Date or 

such later time as the Purchaser is assigned and assumes any Assumed Contract. Except to the 

extent expressly included in the Assumed Liabilities or otherwise provided for in the Purchase 

Agreement with respect to WARN liabilities, the Purchaser shall have no liability or obligation 

under the WARN Act (29 U.S.C. §§ 2101 et seq.), CERCLA or any foreign, federal, state or 

local labor, employment or environmental law, whether of similar import or otherwise, by virtue 

of the Purchaser’s purchase of the JJ Assets or assumption of the Assumed Liabilities. 

16. The Purchaser has given substantial consideration under the Purchase 

Agreement for the benefit of the holders of any Encumbrance. The consideration given by the 

Purchaser shall constitute valid and valuable consideration for the releases of any potential 

claims of Successor or Transferee Liability of the Purchaser, which releases shall be deemed to 

have been given in favor of the Purchaser by all holders of any Encumbrance. In addition, 

except as expressly provided in the Purchase Agreement or this Sale Order, and subject to and 

upon the closing of the Sale, the Debtors hereby waive any and all actions related to, and hereby 

release the Purchaser and, as applicable, its shareholders, controlling persons, directors, agents, 

officers, subsidiaries, affiliates, successors, assigns, managers, principals, officers, employees, 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 22 of 105
23 

#4834-6336-7049v6

investors, advisors, attorneys, professionals, representatives, accountants, investment bankers, 

and consultants, each in their respective capacity as such, and their respective property, from any 

and all claims and causes of action arising from, relating to or in connection with the Purchase 

Agreement and the Sale, whether known or unknown, now existing or hereafter arising, asserted 

or unasserted, mature or inchoate, contingent or non-contingent, liquidated or unliquidated, 

material or non-material, disputed or undisputed, and whether imposed by agreement, 

understanding, law, equity, or otherwise. 

17. Except as expressly provided in the Purchase Agreement with respect to 

the Assumed Liabilities, nothing in this Sale Order or the Purchase Agreement shall require the 

Purchaser to (a) continue or maintain in effect, or assume any liability in respect of any 

employee, pension, welfare, fringe benefit or any other benefit plan, trust arrangement or other 

agreements to which the Debtors or their affiliates are a party or have any responsibility therefor 

including medical, welfare and pension benefits payable after retirement or other termination of 

employment, or (b) assume any responsibility as a fiduciary, plan sponsor or otherwise, for 

making any contribution to, or in respect of the funding, investment or administration of any 

employee benefit plan, arrangement or agreement (including pension plans) or the termination of 

any such plan, arrangement or agreement. 

18. Effective upon the Closing Date, all persons and entities are forever 

prohibited, estopped and permanently enjoined from commencing or continuing in any matter 

any action or other proceeding, whether in law or equity, in any judicial, administrative, arbitral 

or other proceeding against the Purchaser, or its assets (including the JJ Assets), or its successors 

and assigns, with respect to any (a) Encumbrance or (b) Successor or Transferee Liability, 

including the following actions with respect to clauses (a) and (b): (i) commencing or continuing 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 23 of 105
24 

#4834-6336-7049v6

in any manner any action or other proceeding pending or threatened; (ii) enforcing, attaching, 

collecting or recovering in any manner any judgment, award, decree or other order; (iii) creating, 

perfecting or enforcing any Encumbrance; (iv) asserting any setoff, right of subrogation or 

recoupment of any kind; (v) commencing or continuing any action, in any manner or place, that 

does not comply with, or is inconsistent with, the provisions of this Sale Order or other orders of 

this Court, or the agreements or actions contemplated or taken in respect hereof; or (vi) revoking, 

terminating or failing or refusing to renew any license, permit or authorization to operate any of 

the JJ Assets or conduct any of the businesses operated with such assets. 

G. Assumption and Assignment of Contracts 

19. Pursuant to sections 105(a) and 365 of the Bankruptcy Code, the Debtors 

are authorized and directed to assume and assign the Initial Assumed Contracts (as defined 

below) and the Added Assumed Contracts (defined below) to the Purchaser, pursuant to the 

terms of the Purchase Agreement, free and clear of all Encumbrances. The payment of the cure 

costs due under each Initial Assumed Contract or Added Assumed Contract, as applicable, 

pursuant to section 365(b) of the Bankruptcy Code by the Purchaser under the Purchase 

Agreement (the “Cure Costs”) (a) shall cure all monetary defaults existing thereunder as of the 

assignment of the Assumed Contracts to the Purchaser in accordance with the terms of the 

Purchase Agreement; (b) shall compensate the applicable counterparties to the Assumed 

Contracts for any actual pecuniary loss resulting from such default; and (c) together with the 

assumption of the Assumed Contracts and by the Debtors and the assignment of the Assumed 

Contracts to the Purchaser shall constitute adequate assurance of future performance thereof. 

20. With respect to the counterparty to any Assumed Contract that was 

identified in the Notice of Possible Assumption and Assignment of Certain Executory Contracts 

and Unexpired Leases in Connection with Sale filed on January 25, 2019 [Docket No. 144] (the 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 24 of 105
25 

#4834-6336-7049v6

“Cure Notice” and any such Assumed Contract listed therein, an “Initial Assumed Contract”) 

who did not timely file and serve an objection (each a “Cure Objection”), the Cure Costs shall be 

in the amounts indicated by the Debtors in the Cure Notice or the Additional Cure Notice, as 

applicable. With respect to any Initial Assumed Contract for which a counterparty timely filed 

and served a Cure Objection to the Cure Notice, the Cure Cost shall be in the amount agreed by 

the parties or determined by this Court and all such Cure Objections are adjourned to the hearing 

on April 11, 2019 at 10:00 a.m. (Prevailing Eastern Time). 

21. The Debtors shall file and serve by not later than 5:00 p.m. (prevailing 

eastern time) a notice of proposed assumption and assignment of additional executory contracts 

and unexpired leases in connection with sale of the JJ assets (the “Additional Cure Notice”) to 

any counterparty to an Assumed Contract that was not identified on the Cure Notice (each an 

“Added Assumed Contract”). Any counterparty to an Added Assumed Contract shall have until 

5:00 p.m. (prevailing eastern time) on March 11, 2019 to file and serve an objection to the 

Debtors’ proposed cure amount as indicated in the Additional Cure Notice (each an “Added 

Assumed Contract Cure Objection”). With respect to any Added Assumed Contract for which a 

counterparty does not timely file and serve an Added Assumed Contract Cure Objection, the 

Cure Cost shall be in the amount indicated by the Debtors in the Additional Cure Notice. With 

respect to any Added Assumed Contract for which a counterparty timely files and serves an 

Added Assumed Contract Cure Objection, the Cure Cost shall be in the amount agreed by the 

parties or determined by this Court. 

22. With respect to any Initial Assumed Contract for which a counterparty 

timely filed and served a Cure Objection to the Cure Notice, and with respect to any Added 

Assumed Contract for which a counterparty timely files and serves an Added Assumed Contract 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 25 of 105
26 

#4834-6336-7049v6

Cure Objection, the Purchaser shall reserve funds in an amount sufficient to pay the disputed 

cure amounts set forth therein in full, and shall promptly pay the Cure Cost as are ultimately 

agreed by the parties or as determined by this Court. Notwithstanding anything to the contrary 

contained herein or in the Purchase Agreement, the Debtors are not at this time assuming, 

rejecting, or assuming and assigning the Co-Branding License Agreement dated April 5, 2018, 

by and between Aerin LLC, a Delaware limited liability company, and Gymboree Group, Inc., a 

Delaware corporation, and Gymboree Manufacturing, Inc., a California corporation (the “Aerin 

Agreement”), and the time for the Debtors to assume or reject or assume and assign the Aerin 

Agreement shall be extended to the April 11, 2019, provided that Purchaser shall attorn to the 

Debtors’ rights under such agreement from the Closing Date through the earlier of April 11, 

2019 or the date of the assumption or rejection or assumption and assignment of such agreement. 

23. The Purchaser has provided adequate assurance of future performance 

under the Assumed Contracts within the meaning of sections 365(b)(1)(c) and 365(f)(2)(B) of 

the Bankruptcy Code. Any Adequate Assurance Objections were required to state, with 

specificity, the legal and factual bases for the objection and were required to have been filed with 

the Court by, and served so as to be received on the Objection Recipients (as defined in the 

Bidding Procedures) by no later than March 4, 2019 at 11:00 a.m. (prevailing Eastern time) (the 

“Adequate Assurance Objection Deadline”). If no timely Adequate Assurance Objection with 

respect to an Assumed Contract was filed and served on the Objection Recipients by the 

Adequate Assurance Objection Deadline, (a) the applicable Assumed Contract is hereby deemed 

subject to assumption and assignment as proposed by the Debtors and the Successful Bidder and 

(b) the Successful Bidder will be deemed to have provided or to be able to provide adequate 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 26 of 105
27 

#4834-6336-7049v6

assurance of future performance of the applicable Assumed Contract in satisfaction of 

section 365(f)(2)(B) of the Bankruptcy Code. 

24. To the extent that any counterparty to an Initial Assumed Contract did not, 

or Added Assumed Contract does not, timely file a Cure Objection by the deadline to file a Cure 

Objection or Added Assumed Contract Cure Objection, such counterparty is deemed to have 

consented to the proposed Cure Cost set forth in Cure Notice or Additional Cure Notice, as 

applicable. The counterparties to the Assumed Contracts are forever bound by the applicable 

Cure Costs and, upon payment of such Cure Costs as provided for herein and in the Purchase 

Agreement, are hereby enjoined from taking any action against the Purchaser with respect to any 

claim for cure under the Assumed Contracts, except as set forth in the Purchase Agreement. 

25. Any provision in any Assumed Contract that prohibits, restricts or 

conditions the assignment of such Assumed Contract (including, without limitation, those of the 

type described in Sections 365(e)(1) and (f) of the Bankruptcy Code) or allows the counterparty 

to such Assumed Contract to impose any penalty, fee, increase in payment, profit sharing 

arrangement or other condition on renewal or extension, or to modify any term or condition upon 

the assignment of such Assumed Contract, constitutes an unenforceable anti-assignment 

provision that is void and of no force and effect in connection with the Sale. All other 

requirements and conditions under sections 363 and 365 of the Bankruptcy Code for the 

assumption by the Debtors and assignment to the Purchaser of the Assumed Contracts have been 

satisfied. Upon the Closing Date, in accordance with sections 363 and 365 of the Bankruptcy 

Code, the Purchaser shall be fully and irrevocably vested with all right, title and interest of the 

Debtors under the Assumed Contracts, and such Assumed Contracts shall remain in full force 

and effect for the benefit of the Purchaser. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 27 of 105
28 

#4834-6336-7049v6

26. Upon the assignment of the Assumed Contracts to the Purchaser in 

accordance with the terms of the Purchase Agreement (and subject to payment of the Cure Costs 

as provided in this Order), the Purchaser shall be deemed to be substituted for the Debtors as a 

party to the applicable Assumed Contract, and the Debtors and their estates shall be released, 

pursuant to section 365(k) of the Bankruptcy Code, from any liability under the Assumed 

Contract occurring after such assignment. The Purchaser shall pay any Cure Costs in accordance 

with the Purchase Agreement. There shall be no assignment fees, increases or any other fees 

charged to the Purchaser or the Debtors as a result of the assumption and assignment of the 

Assumed Contracts. The applicable Assumed Contract may be modified solely to identify 

Purchaser or its designee as the assignee of the Debtors’ thereunder. 

27. Except as otherwise provided for herein, each counterparty to an Assumed 

Contract is forever barred, estopped, and permanently enjoined from asserting against the 

Debtors or the Purchaser or their respective property in connection with the Sale (a) any 

assignment fee, acceleration, default, breach or claim or pecuniary loss, termination right, or 

condition to assignment existing, arising or accruing as of the Closing Date, including, any 

breach related to or arising out of a change-in-control resulting from the Sale of any provision of 

such Assumed Contract, or any purported written or oral modification to the Assumed Contract; 

or (b) any claim, counterclaim, defense, breach, default, condition, setoff or other claim asserted 

or capable of being asserted against the Debtors existing as of the Closing Date, provided, 

however, , Purchaser shall be responsible for all obligations arising or occurring under the 

Assumed Contracts after the Closing Date as provided in the Purchase Agreement, and for the 

payment of any and all accruing but unbilled obligations with respect to any year-end 

adjustments or reconciliations when billed in accordance with the terms of the Assumed 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 28 of 105
29 

#4834-6336-7049v6

Contracts (including for royalties, rents, utilities, taxes, insurance, fees, common area or other 

maintenance charges, promotional funds, and percentage rent) that become due and owing after 

the Closing Date (irrespective of whether such obligations accrued or relate to the period before, 

on, or after the Closing Date); provided, further, without relieving Purchaser of its obligations 

under this Order or the Purchase Agreement, nothing in this Order or the Purchase Agreement 

shall relieve the Debtors of their obligations under Section 365(d)(3) of the Bankruptcy Code 

prior to the assumption and assignment or rejection of any Assumed Contract; provided further, 

however, that a landlord may seek to recover from the Debtors (but not the Purchaser) 

indemnification obligations, if any, arising from third-party claims asserted with respect to or 

arising from the Debtors’ use and occupancy prior to the Closing of real property subject to a 

lease or sublease that is an Assumed Contract prior to the Closing for which the Debtors had a 

duty to indemnify such landlord pursuant to an Assumed Contract, solely with respect to 

available insurance coverage that survives the Closing, if any; provided, further, that the 

Purchaser shall not under any circumstances have any obligations to reimburse or indemnify the 

landlords, the Debtors, or the Debtors’ insurer for any obligations arising from third-party claims 

asserted with respect to or arising from the Debtors’ use and occupancy prior to the Closing of 

real property subject to a lease or sublease that is an Assumed Contract. 

28. The failure of the Debtors or Purchaser to enforce at any time one or more 

terms or conditions of any Assumed Contract shall not be a waiver of such terms or conditions, 

or of the Debtors’ or Purchaser’s rights to enforce every term and condition of the Assumed 

Contract. 

29. Other than the Assumed Contracts, the Purchaser shall assume none of the 

Debtors’ other contracts or leases and shall have no liability whatsoever thereunder. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 29 of 105
30 

#4834-6336-7049v6

H. Other Provisions 

30. Release of Avoidance Actions. All avoidance claims or causes of 

action of the Debtors arising under sections 544, 547, 548, 549 and 550 of the Bankruptcy 

Code and any similar state law and all other claims or causes of action under any other 

provision of the Bankruptcy Code or applicable Laws, in each case relating to vendors, 

landlords and service providers used in the Business (as defined in the Purchase Agreement) are 

and shall be deemed waived as of the Closing Date. 

31. No Alteration of Prepetition ABL Agent and DIP Agent/DIP Lender 

Claims or Liens.8 Notwithstanding anything contained in this Sale Order to the contrary, nothing 

in the Purchase Agreement or this Sale Order shall be deemed to amend, modify, or limit the 

rights (including, without limitation, the liens, security interests or superpriority claims (if any)) 

of the Prepetition ABL Agent, the DIP Agent and/or the DIP Lender pursuant to the Prepetition 

Documents, the DIP Orders, or the DIP Documents, or in respect of the Prepetition Secured 

Obligations, the DIP Obligations, or the liens, security interests, or superpriority claims (if any) 

of the Prepetition ABL Agent, the DIP Agent, and the DIP Lender, until the Closing Date. For 

the avoidance of doubt, this order is without prejudice to the rights of any party under paragraph 

69 of the Final DIP Order; provided, that the rights of (if any) of Deutsche Bank Trust Company 

Americas, Former Indenture Trustee for the 9.125% Senior Notes Due 2018 (the “Former IT”) 

thereunder shall not attach to the JJ Assets and the Former IT shall not have recourse against the 

JJ Assets or the Purchaser. 

8 Capitalized terms used in this paragraph but not otherwise defined have the meanings given to them in the 

Final DIP Order. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 30 of 105
31 

#4834-6336-7049v6

32. No Alteration of Obligations Owed Under Prepetition Documents.9

Nothing in the Purchase Agreement or this Sale Order shall be deemed to amend, modify, or 

limit the rights and claims of the any Prepetition Secured Party pursuant to the DIP Orders or the 

Prepetition Documents, provided, however, nothing in this Paragraph 32 shall be construed to 

limit the ability of Purchaser to purchase the JJ Assets free and clear of Encumbrances, including 

any Encumbrances under the DIP Orders or the Prepetition Documents. In connection with entry 

of this Sale Order and the consummation of the Sale, the Debtors and the DIP Agent intend to 

enter into a new Budget (as defined in the Final DIP Order). The Debtors, the DIP Agent and the 

DIP Lenders stipulate and acknowledge that the continued funding and administration of these 

Cases requires the use of proceeds of Prepetition ABL Priority Collateral (as defined in the Final 

DIP Order). The DIP Agent and DIP Lenders further acknowledge and agree that, in exchange 

for the Prepetition ABL Agent’s consent to the use of these proceeds, they shall indemnify the 

Prepetition ABL Agent against any claims that may be asserted by (i) the Agent (as defined in 

the Agency Agreement) in connection with any clawback asserted under the Agency Agreement 

or (ii) the Former IT in connection with, related to, or arising from the transactions described in 

the Motion of Deutsche Bank Trust Company Americas, Former Indenture Trustee for the 

9.125% Senior Notes Due 2018, for Entry of an Order Authorizing the Examination of Certain 

Parties Pursuant to Rule 2004 of the Federal Rules of Bankruptcy Procedure [Docket No. 404] 

(the “2004 Motion”). The DIP Agent shall be entitled to assume the defense of any action or 

claim brought by the Former IT against the Prepetition ABL Agent, subject to the consent of the 

Prepetition ABL Agent (which consent shall not be unreasonably withheld); provided that the 

compromise or settlement of any claim or action shall not contain an admission of any liability 

9 Capitalized terms used in this paragraph but not otherwise defined have the meanings given to them in the 

Final DIP Order. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 31 of 105
32 

#4834-6336-7049v6

on the part of the Prepetition ABL Agent and shall include a full release and discharge in favor 

of the Prepetition ABL Agent. In addition, the Debtors hereby acknowledge and agree that the 

Prepetition ABL Agent shall be entitled to apply amounts in the Prepetition ABL Indemnity 

Reserve against any costs, expenses, and other amounts (including reasonable attorneys’ fees) 

incurred by the Prepetition ABL Agent in connection with or responding to formal or informal 

inquiries and/or discovery requests, any adversary proceeding, cause of action, objection, claim, 

defense, or other challenge in connection with, or arising from the transactions described in the 

2004 Motion. 

33. No Alteration of Agent’s Rights Under the Agency Agreement10. Except 

as expressly contemplated by the Inventory Purchase Agreement with respect to the exercise of 

the J&J Option and the amendments to the Agency Agreement pursuant thereto, nothing in the 

Purchase Agreement or this Sale Order shall be deemed to amend, modify, or limit the rights 

(including, without limitation, the liens, security interests and charges) of the Agent pursuant to 

the Agency Agreement and Amended Order (I) Authorizing Entry into the Agency Agreement, 

(II) Authorizing and Approving the Conduct of the Store Closing Sales, and (III) Granting 

Certain Related Relief [Docket No. 104] (the “Agency Agreement Order”). Without limiting the 

foregoing, nothing in the Purchase Agreement or this Sale Order shall affect or limit in any 

manner the continued conduct of the Sale (as defined in and as contemplated by the Agency 

Agreement) with respect to the remaining Stores and Merchandise, other than the J&J Stores and 

J&J Merchandise subject to the Sale (as defined herein) to the Purchaser. 

34. Excluded Liabilities. All persons, all Governmental Units (as defined in 

sections 101(27) and 101(41) of the Bankruptcy Code) and all holders of Encumbrances, based 

10 Capitalized terms used in this paragraph but not otherwise defined have the meanings given to them in the 

Agency Agreement. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 32 of 105
33 

#4834-6336-7049v6

upon or arising out of the Excluded Liabilities (as defined in the Purchase Agreement) are hereby 

barred and estopped from taking any action against the Purchaser or the JJ Assets to recover 

property on account of any claims or causes of action against the Debtors or on account of any 

liabilities of the Debtors other than Assumed Liabilities pursuant to the Purchase Agreement. 

All persons holding or asserting any Encumbrances with respect to the Excluded Assets are 

hereby estopped, permanently enjoined and forever barred from asserting or prosecuting such 

Encumbrances against the Purchaser or the JJ Assets for any Liability whatsoever associated 

with the Excluded Assets. 

35. No Bulk Sales; No Brokers. No bulk sales law or any similar law of any 

state or other jurisdiction shall apply in any way to the Sale(s). Other than the professionals 

retained by the Debtors pursuant to orders of this Court, no brokers were involved in 

consummating the Sale(s), and no brokers’ commissions shall be due to any person or entity in 

connection with the Sale(s). The Purchaser is not obligated to pay any fee or commission or like 

payment to any broker, finder, or financial advisor as a result of the consummation of the Sale. 

Notwithstanding the foregoing, the Debtors may be obligated to pay their financial advisor or 

investment banker for services rendered in connection with the sale in accordance with other 

orders of this Court. 

36. Failure to Specify Provisions; Conflicts. The failure specifically to 

mention any particular provisions of the Purchase Agreement or any related agreements in this 

Sale Order shall not diminish or impair the effectiveness of such provision, it being the intent of 

this Court, the Debtors, and the Purchaser that the Purchase Agreement and any related 

agreements are authorized and approved in their entirety with such amendments thereto as may 

be made by the parties thereto in accordance with this Sale Order. In the event there is a direct 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 33 of 105
34 

#4834-6336-7049v6

conflict between the terms of this Sale Order and the terms of the Purchase Agreement, the terms 

of this Sale Order shall control. 

37. Allocation of Consideration. All rights of the respective Debtors’ estates 

with respect to the allocation of consideration received from the Purchaser in connection with the 

Sale are expressly reserved for later determination by this Court and, to the extent consideration 

is received by any Debtor that is determined to be allocable to another Debtor, such other Debtor 

shall have a claim against the recipient Debtor with the status of an expense of administration in 

the case of the recipient Debtor under section 503(b) of the Bankruptcy Code. 

38. Subsequent Plan Provisions. Nothing contained in any chapter 11 plan to 

be confirmed in these Cases or any order to be entered in these Cases (including any order 

entered after conversion of these chapter 11 cases to cases under chapter 7 of the Bankruptcy 

Code) shall alter, conflict with, or derogate from, the provisions of the Purchase Agreement or 

this Sale Order. In the event there is a direct conflict between the terms of this Sale Order and 

the terms of any subsequent chapter 11 plan or any order to be entered in these Cases (including 

any order entered after conversion of these Cases to cases under chapter 7 of the Bankruptcy 

Code), the terms of this Sale Order shall control. 

39. Further Assurances. From time to time, as and when requested, all parties 

to the Sale(s) shall execute and deliver, or cause to be executed and delivered, all such 

documents, statements and instruments and shall take, or cause to be taken, all such further or 

other actions as the requesting party may reasonably deem necessary or desirable to consummate 

the Sale, including such actions as may be reasonably necessary to vest, perfect, or confirm or 

record or otherwise in the Purchaser its right, title and interest in and to the JJ Assets. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 34 of 105
35 

#4834-6336-7049v6

40. Governing Terms. To the extent this Sale Order is inconsistent with any 

prior order or pleading in these Cases, the terms of this Sale Order shall govern. To the extent 

there is any inconsistency between the terms of this Sale Order and the terms of the Purchase 

Agreement (including all ancillary documents executed in connection therewith), the terms of 

this Sale Order shall govern. 

41. Modifications. The Purchase Agreement and any related agreements, 

documents or other instruments may be modified, amended or supplemented by the parties 

thereto and in accordance with the terms thereof, without further order of this Court; provided 

that any such modification, amendment or supplement does not have a material adverse effect on 

the Debtors’ estates. 

42. Automatic Stay. The automatic stay pursuant to section 362 of the 

Bankruptcy Code is hereby modified with respect to the Debtors to the extent necessary, without 

further order of this Court, to allow the Purchaser to deliver any notice provided for in the 

Purchase Agreement and allow the Purchaser to take any and all actions permitted or required 

under the Purchase Agreement in accordance with the terms and conditions thereof. The 

Purchaser shall not be required to seek or obtain any further relief from the automatic stay under 

section 362 of the Bankruptcy Code to enforce any of its remedies under the Purchase 

Agreement or any other sale-related document. 

43. No Stay of Order. Notwithstanding Bankruptcy Rules 6004(h), 6006(d) 

and 7062, this Sale Order shall be effective and enforceable immediately upon entry and its 

provisions shall be self-executing. Neither the Debtors nor the Purchaser shall be required to 

execute or file releases, termination statements, assignments, consents, or other instruments in 

order to effectuate, consummate and implement the provisions of this Sale Order. Any party 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 35 of 105
36 

#4834-6336-7049v6

objecting to this Sale Order must exercise due diligence in filing an appeal and obtaining a stay 

prior to the Closing Date or risk its appeal being foreclosed as moot. 

44. Servers and IT Equipment. Upon consummation of the Sale, and to the 

extent applicable, the Debtors shall retain originals or copies of, and preserve in accordance with 

their discovery obligations, all hard copy documents and data and information that constitute 

Assets and any other document, data or information stored on or in servers, backup devices, 

mobile devices, electronic storage devices, or miscellaneous IT equipment, in each case, that 

constitutes Assets, currently in the Debtors’ possession, custody, or control pertaining to pending 

or threatened litigation or necessary to administer these Cases (including, without limitation, 

necessary to allow the Debtors and the Agent to conduct the Sale (as defined in and in the 

manner contemplated by, the Agency Agreement). 

45. Notice of Sale Closing Date. Within one (1) business day of the 

occurrence of the Closing Date of the Sale, the Debtors shall file and serve a notice of same, 

substantially in the form attached hereto as Exhibit 3 (the “Notice of Sale Closing Date”). 

46. Retention of Jurisdiction. This Court shall retain jurisdiction to interpret, 

implement, and enforce the terms and provisions of this Sale Order, the Bidding Procedures 

Order, and the Purchase Agreement, including all amendments thereto and any waivers and 

consents thereunder and each of the agreements executed in connection therewith, and decide 

any issues or disputes concerning this Sale Order and the Purchase Agreement or the rights and 

duties of the parties hereunder or thereunder, including the interpretation of the terms, 

conditions, and provisions hereof and thereof, the status, nature, and extent of the JJ Assets. 

47. Nothing in this Order, the Purchase Agreement, or any transition services 

agreement thereunder shall authorize (1) the transfer of any Oracle America, Inc. or Oracle 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 36 of 105
37 

#4834-6336-7049v6

Credit Corporation (together, “Oracle”) license agreement to any third party; or (2) use of any 

Oracle license agreement that is inconsistent with the relevant license grant including, but not 

limited to, exceeding the number of authorized users, shared use or license splitting, absent 

Oracle’s express prior written consent. 

48. The Purchaser (and the Agent, solely with respect to terms that relate to 

the Agency Agreement, the J&J Option, and/or the J&J Option Payment) has standing to seek to 

enforce the terms of this Order. 

49. The Debtors are authorized to take all actions necessary or appropriate to 

effectuate the relief granted pursuant to this Order. 

50. The requirements set forth in Bankruptcy Rule 6004(a) are satisfied. 

51. All time periods set forth in this Order shall be calculated in accordance 

with Bankruptcy Rule 9006(a). 

Dated: 

Richmond, Virginia UNITED STATES BANKRUPTCY JUDGE 

Mar 4 2019 /s/ Keith L. Phillips

Entered on Docket: Mar 4 2019

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 37 of 105
38 

#4834-6336-7049v6

WE ASK FOR THIS: 

/s/ Brian H. Richardson 

Michael A. Condyles, Esq. (VA 27807) 

Peter J. Barrett, Esq. (VA 46179) 

Jeremy S. Williams, Esq. (VA 77469) 

Brian H. Richardson, Esq. (VA 92477) 

KUTAK ROCK LLP 

901 East Byrd Street, Suite 1000 

Richmond, Virginia 23219-4071 

Telephone: (804) 644-1700 

Facsimile: (804) 783-6192 

- and - 

Dennis F. Dunne, Esq. (admitted pro hac vice) 

Evan R. Fleck, Esq. (admitted pro hac vice) 

Michael W. Price, Esq. (admitted pro hac vice) 

MILBANK LLP

55 Hudson Yards

New York, New York 10001 

Telephone: (212) 530-5000 

Facsimile: (212) 530-5219 

Co-Counsel for Debtors in Possession 

CERTIFICATION OF ENDORSEMENT 

UNDER LOCAL BANKRUPTCY RULE 9022-1(C)

Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing 

proposed order has been endorsed by or served upon all necessary parties. 

/s/ Brian H. Richardson

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 38 of 105
 

([KLELW

 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 39 of 105
EXECUTION VERSION 

#4839-7420-7369v7 

ASSET PURCHASE AGREEMENT 

dated as of March 1, 2019 

by and among 

THE GAP, INC., 

as Buyer, 

and 

GYMBOREE GROUP, INC. 

and 

ITS SUBSIDIARIES SIGNATORY HERETO, 

as Sellers 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 6 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 40 of 105
TABLE OF CONTENTS

Page

#4839-7420-7369v7 -iARTICLE 1 DEFINITIONS ......................................................................................................................... 1 

1.1 Defined Terms .................................................................................................................... 1 

1.2 Interpretation ..................................................................................................................... 13 

ARTICLE 2 TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES .................................... 14 

2.1 Assets to be Acquired ....................................................................................................... 14 

2.2 Excluded Assets ................................................................................................................ 17 

2.3 Liabilities to be Assumed by Buyer .................................................................................. 18 

2.4 Excluded Liabilities .......................................................................................................... 19 

2.5 [Reserved] ......................................................................................................................... 20 

2.6 Non-Assignment of Assumed Contracts ........................................................................... 20 

2.7 Assumption and Assignment of Executory Contracts ...................................................... 21 

ARTICLE 3 CLOSING; PURCHASE PRICE ........................................................................................... 21 

3.1 Closing; Transfer of Possession; Certain Deliveries......................................................... 21 

3.2 Consideration .................................................................................................................... 22 

3.3 Allocation of Purchase Price ............................................................................................. 22 

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLERS .............................................. 23 

4.1 Organization...................................................................................................................... 23 

4.2 Due Authorization, Execution and Delivery; Enforceability ............................................ 23 

4.3 Governmental Consents .................................................................................................... 23 

4.4 No Conflicts ...................................................................................................................... 23 

4.5 Title to Acquired Assets ................................................................................................... 24 

4.6 Litigation; Orders .............................................................................................................. 24 

4.7 Employment and ERISA Matters ..................................................................................... 25 

4.8 Environmental ................................................................................................................... 26 

4.9 Taxes ................................................................................................................................. 26 

4.10 Compliance with Laws; Permits ....................................................................................... 27 

4.11 Contracts ........................................................................................................................... 27 

4.12 Insurance Claims ............................................................................................................... 27 

4.13 Intellectual Property .......................................................................................................... 27 

4.14 Anti-Corruption and Sanctions ......................................................................................... 28

4.15 Data Privacy ...................................................................................................................... 28 

4.16 Sufficiency ........................................................................................................................ 29 

4.17 Exclusive Representations and Warranties ....................................................................... 29 

ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER ................................................. 29 

5.1 Organization...................................................................................................................... 29 

5.2 Due Authorization, Execution and Delivery; Enforceability ............................................ 29 

5.3 Governmental Approvals .................................................................................................. 30 

5.4 No Conflicts ...................................................................................................................... 30 

5.5 Availability of Funds and Financial Capability ................................................................ 30 

5.6 Adequate Assurances Regarding Executory Contracts ..................................................... 30 

5.7 Condition and Location of Acquired Assets ..................................................................... 30 

5.8 Exclusive Representations and Warranties ....................................................................... 30 

5.9 No Other Representations or Warranties of Sellers; Disclaimers ..................................... 31 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 7 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 41 of 105
TABLE OF CONTENTS

(continued) 

Page

#4839-7420-7369v7 -iiARTICLE 6 COVENANTS OF THE PARTIES ....................................................................................... 32 

6.1 Conduct of Jewel Business Pending the Closing .............................................................. 32 

6.2 Back-Up Bidder ................................................................................................................ 33 

6.3 Access ............................................................................................................................... 33 

6.4 Public Announcements ..................................................................................................... 33 

6.5 Tax Matters ....................................................................................................................... 34 

6.6 Approvals; Reasonable Best Efforts; Notification; Consent ............................................. 34 

6.7 Employee Matters ............................................................................................................. 35 

6.8 Further Assurances ........................................................................................................... 37 

6.9 Bankruptcy Court Filings .................................................................................................. 37 

6.10 Cure Costs ......................................................................................................................... 37 

6.11 Preservation of Books and Records .................................................................................. 37 

6.12 Bulk Transfer Laws .......................................................................................................... 38 

6.13 Overhead and Shared Services; Transition Services......................................................... 38 

6.14 Payments from Third Parties After Closing ...................................................................... 38 

6.15 Letters of Credit ................................................................................................................ 39 

6.16 Notification of Certain Matters ......................................................................................... 39 

6.17 Confidentiality .................................................................................................................. 40 

6.18 Communication With Other Bidders ................................................................................ 40 

6.19 Personally Identifiable Information .................................................................................. 40 

6.20 Sell-Off of Inventory ........................................................................................................ 40 

6.21 Asset Identification ........................................................................................................... 41 

ARTICLE 7 CONDITIONS TO OBLIGATIONS OF THE PARTIES ..................................................... 41 

7.1 Conditions Precedent to Obligations of Buyer ................................................................. 41 

7.2 Conditions Precedent to the Obligations of Sellers .......................................................... 42 

7.3 Frustration of Conditions Precedent ................................................................................. 43 

ARTICLE 8 TERMINATION .................................................................................................................... 43 

8.1 Termination of Agreement ................................................................................................ 43 

8.2 Consequences of Termination........................................................................................... 44 

ARTICLE 9 MISCELLANEOUS .............................................................................................................. 44 

9.1 Expenses ........................................................................................................................... 44 

9.2 Assignment ....................................................................................................................... 44 

9.3 Parties in Interest .............................................................................................................. 44 

9.4 Releases ............................................................................................................................ 45 

9.5 Notices .............................................................................................................................. 45 

9.6 Choice of Law ................................................................................................................... 46 

9.7 Entire Agreement; Amendments and Waivers.................................................................. 46 

9.8 Counterparts; Facsimile and Electronic Signatures .......................................................... 46 

9.9 Severability ....................................................................................................................... 46 

9.10 Headings ........................................................................................................................... 46 

9.11 Exclusive Jurisdiction and Specific Performance ............................................................. 47 

9.12 WAIVER OF RIGHT TO TRIAL BY JURY ................................................................... 47 

9.13 Survival ............................................................................................................................. 47 

9.14 Computation of Time ........................................................................................................ 48 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 8 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 42 of 105
TABLE OF CONTENTS

(continued) 

Page

#4839-7420-7369v7 -iii9.15 Time of Essence ................................................................................................................ 48 

9.16 Non-Recourse ................................................................................................................... 48 

9.17 Disclosure Schedules ........................................................................................................ 48 

9.18 Sellers’ Representative; Dealings Among Sellers ............................................................ 48 

9.19 Mutual Drafting ................................................................................................................ 49 

9.20 Fiduciary Obligations ....................................................................................................... 49 

EXHIBITS 

Exhibit A Form of Sale Order 

Exhibit B Form of Transition Services Agreement 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 9 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 43 of 105
#4839-7420-7369v7 

ASSET PURCHASE AGREEMENT 

This ASSET PURCHASE AGREEMENT, dated as of March 1, 2019 (the “Agreement Date”), is 

made and entered into by and among Gymboree Group, Inc., a Delaware corporation (“Gemstone”), and 

each of Gemstone’s Subsidiaries listed on the signature page hereto (together with Gemstone, “Sellers” and 

each, a “Seller”), and The Gap, Inc., a Delaware corporation (“Buyer”). Each Seller and Buyer are referred 

to herein individually as a “Party” and collectively as the “Parties”.

WITNESSETH: 

WHEREAS, Sellers are currently engaged in the Jewel Business; 

WHEREAS, on January 17, 2019, Gemstone and certain other Sellers filed a voluntary petition 

and commence a case (collectively, the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States 

Code (the “Bankruptcy Code”) in the Bankruptcy Court (the date of such filing, the “Petition Date”); 

WHEREAS, the Chapter 11 Cases are being jointly administered by the Bankruptcy Court under 

case number 19-30258 (KLP) and are titled In re: Gymboree Group, Inc., et al., Debtors; and 

WHEREAS, on the terms and subject to the conditions set forth herein and subject to the approval 

of the Bankruptcy Court, (a) Sellers wish to sell to Buyer, and Buyer wishes to purchase from Sellers, the 

Acquired Assets as of the Closing, and (b) Buyer is willing to assume from Sellers the Assumed Liabilities 

as of the Closing. 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and 

agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of 

which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as 

follows: 

ARTICLE 1 

DEFINITIONS 

1.1 Defined Terms. As used herein, the terms below shall have the following respective 

meanings: 

“Acquired Assets” shall have the meaning specified in Section 2.1. 

“Acquired Business Information” shall mean all books, financial information, records, files, 

ledgers, documentation, instruments, research, papers, data, marketing materials and information, sales or 

technical literature or similar information that, in each case, is in the possession or control of any Seller 

and, in each case, is Relating to the Jewel Business or primarily or exclusively related to the Acquired 

Assets, including, for the avoidance of doubt, (i) files and assignment documentation pertaining to 

existence, availability, registrability or ownership of any of the Transferred Intellectual Property and 

documentation of the development, conception or reduction to practice thereof and (ii) all information and 

documentation pertaining to product history, historical financial performance records, including SKU 

levels, and other product information with respect to all products related to the Jewel Business. 

“Additional Assets” shall have the meaning specified in Section 6.21. 

“Additional Lease” shall have the meaning specified in Section 2.1(e). 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 10 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 44 of 105
#4839-7420-7369v7 2 

“Affiliate” shall, with respect to any Person, mean any other Person that directly, or indirectly 

through one or more intermediaries, controls, or is controlled by, or is under common control with, the 

Person specified, where “control” means the possession, directly or indirectly, of the power to direct or 

cause the direction of the management policies of a Person, through ownership of voting securities or rights, 

by contract, as trustee, executor or otherwise. 

“Agreement” shall mean this Asset Purchase Agreement, together with the exhibits and the 

Disclosure Schedules, in each case as amended, restated, supplemented or otherwise modified from time to 

time. 

“Agreement Date” shall have the meaning specified in the preamble.

“Allocation” shall have the meaning specified in Section 3.3. 

“Alternative Transaction” shall mean (i) any investment in, financing of, capital contribution or 

loan to, or restructuring or recapitalization of a Seller or any Affiliate of a Seller (including any exchange 

of all or a substantial portion of a Seller’s or its Affiliates’ outstanding debt obligations for equity securities 

of one or more Sellers or their respective Affiliates), (ii) any merger, consolidation, share exchange or other 

similar transaction to which a Seller or any of its Affiliates is a party that has the effect of transferring, 

directly or indirectly, all or a substantial portion of the assets of, or any issuance, sale or transfer of equity 

interests in, a Seller, the Acquired Assets or the Jewel Business, (iii) any direct or indirect sale of all or a 

substantial portion of the assets of, or any issuance, sale or transfer of equity interests in, a Seller, the 

Acquired Assets or the Jewel Business or (iv) any other transaction, including a plan of liquidation or 

reorganization (in any jurisdiction, whether domestic, foreign, international or otherwise), in each instance 

(A) that transfers or vests ownership of, economic rights to, or benefits in all or a substantial portion of the 

Acquired Assets or the Jewel Business to any party other than Buyer and (B) whether or not such 

transactions are entered into in connection with any bankruptcy, insolvency or similar Proceedings; 

provided, however, that notwithstanding the foregoing, any investment in, financing of, capital contribution 

or loan to, or any sale of assets of, a Seller or any Affiliate of a Seller that would not reasonably be expected 

to, individually or in the aggregate, interfere with or impede the Transactions, interfere with, limit or modify 

any of Buyer’s rights or privileges hereunder or result in the imposition of any liabilities or costs on Buyer 

or any of its Affiliates shall not be considered an “Alternative Transaction”.

“Anti-Corruption Laws” shall mean applicable laws enacted to prohibit bribery and corruption, 

including the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the UK Bribery Act 2010, and 

applicable laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in 

International Business Transactions. 

“Anti-Corruption Prohibited Activity” shall mean (a) using funds in violation of Anti-Corruption 

Laws for unlawful contributions, gifts, or entertainment, or other unlawful expenses relating to political 

activity, or (b) making or taking an act in furtherance of an offer, promise, or authorization of any bribe, 

rebate, payoff, influence payment, kickback or other similar payment, whether directly or indirectly to any 

Governmental Entity or to any private commercial entity for the purpose of either gaining an improper 

business advantage or encouraging the recipient to violate the policies of his or her employer or to breach 

an obligation of good faith or loyalty in violation of Anti-Corruption Laws. 

“Anti-Money Laundering Laws” shall mean applicable laws relating to money laundering and 

terrorism financing, including the USA PATRIOT Act of 2001, the U.S. Money Laundering Control Act 

of 1986, as amended; the applicable financial recordkeeping and reporting requirements of the U.S. 

Currency and Foreign Transaction Reporting Act of 1970, as amended; the EU Anti-Money Laundering 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 11 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 45 of 105
#4839-7420-7369v7 3 

Directives and any laws, decrees, administrative orders, circulars, or instructions implementing or 

interpreting the same; and other similar applicable laws and regulations. 

“Approved Budget” shall have the meaning specified in the DIP Facility.

“Assignment and Assumption Agreement” shall mean one or more assignment and assumption 

agreements to be entered into by Sellers and Buyer concurrently with the Closing in a form mutually agreed 

to by the Parties. 

“Assumed Contracts” shall have the meaning specified in Section 2.1(e). 

“Assumed Liabilities” shall have the meaning specified in Section 2.3. 

“Auction” shall have the meaning specified in the Bidding Procedures.

“Avoidance Actions” shall mean any and all claims for relief of any Seller under chapter 5 of the 

Bankruptcy Code. 

“Back-Up Bidder” shall have the meaning specified in Section 6.2. 

“Bankruptcy Code” shall have the meaning specified in the recitals.

“Bankruptcy Court” shall mean the United States Bankruptcy Court for the Eastern District of 

Virginia (Richmond Division). 

“Bankruptcy Rules” shall mean the Federal Rules of Bankruptcy Procedure as promulgated by the 

United States Supreme Court under section 2075 of title 28 of the United States Code, 28 U.S.C. § 2075, 

as applicable to the Chapter 11 Cases, and the general, local and chambers rules of the Bankruptcy Court. 

“Benefit Plan” shall mean any employee benefit plan (as defined in Section 3(3) of ERISA) or any 

deferred compensation, bonus, pension, retirement, profit sharing, savings, incentive compensation, stock 

purchase, stock option or other equity or equity-linked compensation, disability, death benefit, 

hospitalization, medical, dental, life, employment, retention, change in control, termination, severance, 

separation, vacation, sick leave, holiday pay, paid time off, leave of absence, fringe benefit, compensation, 

incentive, insurance, welfare or any similar plan, program, policy, practice, agreement or arrangement 

(including any funding mechanism therefor), written or oral, whether or not subject to ERISA, and whether 

funded or unfunded, in each case that is adopted, sponsored, maintained, entered into, contributed to, or 

required to be maintained or contributed to, by any Seller or any Subsidiary of any Seller for the benefit of 

any Employee, or pursuant to or in connection with which any Seller or any Subsidiary of any Seller could 

have any Liabilities in respect of any Employee or beneficiary of any Employee. 

“Bidding Procedures” shall mean the bid procedures in the form annexed as Exhibit 1 to the Bidding 

Procedures Order. 

“Bidding Procedures Order” shall mean the Order of the Bankruptcy Court dated January 17, 2019, 

and appearing as item number 76 on the docket of the Bankruptcy Court in the Chapter 11 Cases. 

“Business Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which 

banking institutions in the State of New York are not required to open. 

“Buyer” shall have the meaning specified in the preamble.

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 12 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 46 of 105
#4839-7420-7369v7 4 

“Buyer Material Adverse Effect” shall mean a material adverse effect on the ability of Buyer to 

consummate the Transactions. 

“Buyer Released Parties” shall have the meaning specified in Section 9.4. 

“Chapter 11 Cases” shall have the meaning specified in the recitals.

“Claim” shall mean all actions, claims, counterclaims, suits, proceedings, rights of action, causes 

of action, Liabilities, losses, damages, remedies, penalties, judgments, settlements, costs, expenses, fines, 

disbursements, demands, reasonable costs, fees and expenses of counsel, including in respect of 

investigation, interest, demands and actions of any nature or any kind whatsoever, known or unknown, 

disclosed or undisclosed, accrued or unaccrued, matured or unmatured, choate or inchoate, legal or 

equitable, and arising in tort, contract or otherwise, including any “claim” as defined in the Bankruptcy 

Code. 

“Closing” shall have the meaning specified in Section 3.1(a). 

“Closing Date” shall have the meaning specified in Section 3.1(a). 

“Code” shall mean the Internal Revenue Code of 1986, as amended. 

“Contract” shall mean any contract, agreement, indenture, note, bond, loan, instrument, lease, 

conditional sales contract, purchase order, mortgage, license, franchise, insurance policy, letter of credit, 

commitment or other binding arrangement or commitment, whether or not in written form, that is binding 

upon a Person or any of its property. 

“Credit Agreement” shall mean that certain Credit Agreement, dated as of September 29, 2017, by 

and among Gemstone, as lead borrower, Gymboree Intermediate Corporation, as a guarantor, Goldman 

Sachs Specialty Lending Group, Inc., in its capacity as Administrative Agent, and the lenders and other 

parties party thereto. 

“Cure Costs” shall mean all cure costs that must be paid pursuant to section 365 of the Bankruptcy 

Code in connection with the assumption and assignment of the Assumed Contracts as finally determined 

by the Bankruptcy Court. 

“Designated Purchasers” shall have the meaning specified in Section 2.1. 

“DIP Facility” shall mean that certain Superpriority Secured Debtor-in-Possession Credit 

Agreement, dated as of January 18, 2019, by and among Gemstone, the other Borrowers (as defined therein) 

party thereto from time to time, Gymboree Intermediate Corporation, a Delaware corporation, the other 

Guarantors (as defined therein) party thereto from time to time, each a debtor and debtor-in-possession in 

cases pending under chapter 11 of the Bankruptcy Code, the Lenders (as defined therein) and Special 

Situations Investing Group, Inc., a Delaware corporation, as Administrative Agent and Collateral Agent. 

“Disclosure Schedules” shall mean the disclosure schedules, delivered by Sellers and Buyer 

concurrently with the execution and delivery of this Agreement, as amended from time to time in 

accordance with and subject to the terms hereof. 

“E-Commerce Platform” shall mean the series of software and hardware applications including 

computer hardware and cloud servers, that are integrated into, and through which Sellers sell inventory to 

consumers who place orders for such inventory through, the www.JanieandJack.com (and similar 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 13 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 47 of 105
#4839-7420-7369v7 5 

permutations thereof) websites, including the Contracts pursuant to which such software and hardware 

applications are owned or licensed by Sellers. 

“Employees” shall mean all individuals, as of the date hereof, whether or not actively at work as of 

the date hereof, who (i) are employed by any of the Sellers or their Subsidiaries, (ii) provide services in 

connection with the Jewel Business, and (iii) are listed on Schedule 6.7(a), together with individuals who 

are hired in respect of the Jewel Business after the date hereof and prior to the Closing. 

“Employee List” shall have the meaning specified in Section 6.7(a). 

“Employee Offer List” shall have the meaning specified in Section 6.7(a). 

“Employment Offer” shall have the meaning specified in Section 6.7(b). 

“Environmental Laws” shall mean all Laws relating to pollution, storage, transport, release of, 

contamination by, or exposure to Hazardous Materials, or protection of the environment, natural resources, 

human safety, or human health (to the extent related to exposure to Hazardous Materials). 

“Equipment” shall have the meaning specified in Section 2.1(f). 

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended. 

“ERISA Affiliate” shall mean any Person that, by reason of its relationship with any Seller, is 

aggregated with such Seller under Section 414 of the Code. 

“Excluded Assets” shall have the meaning specified in Section 2.2. 

“Excluded Contracts” shall mean all Contracts other than Assumed Contracts.

“Excluded Information” shall mean (i) any personnel records, books, files or other documentation 

relating to any employees; provided that any personnel records (including without limitation those 

pertaining to training, performance, salary, compensation, benefits, visa status, and I-9 information) relating 

to the Transferred Employees shall not be Excluded Information to the extent that Sellers can provide such 

records to Buyer in compliance with Law, (ii) any Tax records, (iii) any books, records, files, ledgers, 

documentation or similar information that any Seller is required by Law (including Laws relating to 

privilege or privacy) or by any Contract to retain and/or not to disclose; provided that to the extent any such 

information described in this clause (iii) relates to the Jewel Business, Sellers will disclose the existence of 

such confidential information and the applicable contract or agreement to which it relates and Sellers will 

use their respective commercially reasonable efforts to seek waivers from the relevant third party in order 

to provide Buyer such information and (iv) all records and reports prepared by or for any Seller or its 

Affiliates or Representatives in connection with the sale of Sellers, any of their Affiliates or any of their 

respective businesses or any portion thereof (including the Jewel Business), including all analyses relating 

thereto so prepared or received, all confidentiality agreements with prospective purchasers thereof and all 

bids and expressions of interest received from third parties with respect thereto; provided that this clause 

(iv) will not exclude any diligence information regarding the Acquired Assets, the Assumed Liabilities or 

the Jewel Business that was provided or made available to other bidders or potential bidders in connection 

with the Auction process. 

“Excluded Liabilities” shall have the meaning specified in Section 2.4. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 14 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 48 of 105
#4839-7420-7369v7 6 

“Export Control and Customs Laws” shall mean applicable export control laws and regulations, 

including the EC Regulation 428/2009 and the implementing laws and regulations of the EU member states; 

the U.S. Export Administration Act, U.S. Export Administration Regulations, U.S. Arms Export Control 

Act, U.S. International Traffic in Arms Regulations, and their respective implementing rules and 

regulations; the U.K. Export Control Act 2002 (as amended and extended by the Export Control Order 

2008); and all import laws administered by all applicable Governmental Entities, including the Tariff Act 

of 1930, as amended, the Trade Act of 1974, the Trade Expansion Act of 1962, and other Laws and 

programs administered or enforced by the U.S. Department of Commerce, U.S. International Trade 

Commission, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement and 

their predecessor agencies. 

“Facilities” shall mean all buildings and fixtures owned or leased by Sellers, located on the Leased 

Real Property and Relating to the Jewel Business, but excluding for the avoidance of doubt (i) power lines, 

pipelines, telephone lines and other improvements and fixtures owned by public utilities furnishing utilities 

to the Leased Real Property, and (ii) rail lines, pipelines and other improvements and fixtures owned by 

third parties and located on existing easements for such purpose which encumber the Leased Real Property. 

“FIRPTA Affidavit” shall mean an affidavit of each Seller (or, if such Seller is a disregarded entity 

for U.S. federal income tax purposes, its regarded owner) that is a U.S. Person, sworn to under penalty of 

perjury, setting forth such Seller’s (or, if applicable, regarded owner’s) name, address and U.S. federal tax 

identification number and stating that such Seller (or, if applicable, regarded owner) is not a “foreign 

person” within the meaning of Section 1445 of the Code and otherwise complying with the Treasury 

Regulations issued pursuant to Section 1445 of the Code. 

“Fraud” shall mean an actual and intentional misrepresentation of material facts with respect to 

(i) the making of any representation or warranty of Sellers set forth in Article 4 or in any other Transaction 

Document or (ii) the certifications of Sellers set forth in the certificates delivered by Sellers pursuant to 

Section 7.1(c), in each case which satisfies all of the elements of common law fraud under applicable Law. 

“GAAP” shall mean generally accepted accounting principles as in effect from time to time in the 

United States. 

“Gemstone” shall have the meaning specified in the preamble.

“Good Faith Deposit” shall have the meaning specified in the Bidding Procedures. 

“Governmental Entity” shall mean any federal, state, provincial, local, municipal, foreign, 

multinational, international or other (a) government, (b) governmental or quasi-governmental authority of 

any nature (including any governmental agency, branch, department, official, or entity and any court or 

other tribunal), or (c) body exercising, or entitled to exercise, any administrative, executive, judicial, 

legislative, police, regulatory, or taxing authority or power of any nature, including any arbitration tribunal 

or stock exchange. 

“Hazardous Material” shall mean any material, substance or waste defined, listed or regulated as a 

“contaminant” or “pollutant” or as “hazardous” or “toxic” (or words of similar meaning or intent) under 

any applicable Environmental Law, including materials exhibiting the characteristics of ignitability, 

corrosivity, reactivity or toxicity, as such terms are defined in connection with hazardous materials, 

hazardous wastes or hazardous or toxic substances in any applicable Environmental Law and including 

asbestos, petroleum and petroleum breakdown constituents and polychlorinated biphenyls. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 15 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 49 of 105
#4839-7420-7369v7 7 

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 

and any successor law and the rules and regulations thereunder or under any successor law. 

“Incremental Deposit Amount” shall have the meaning specified in the Bidding Procedures. 

“Indebtedness” of any Person shall mean, without duplication: (i) the principal of and premium (if 

any) in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by 

notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible 

or liable; (ii) all obligations of such Person issued or assumed as the deferred purchase price of property, 

all conditional sale obligations of such Person and all obligations of such Person under any title retention 

agreement (but excluding trade accounts payable and other accrued current liabilities arising in the Ordinary 

Course of Business); (iii) all obligations of such Person under leases required to be capitalized in accordance 

with GAAP; (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, 

banker’s acceptance or similar credit transaction; (v) all obligations of the type referred to in clauses (i) 

through (iv) of any Persons for the payment of which such Person is responsible or liable, directly or 

indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (vi) all 

obligations of the type referred to in clauses (i) through (v) of other Persons secured by any Lien on any 

property or asset of such Person (whether or not such obligation is assumed by such Person). 

“Intellectual Property” shall mean any and all worldwide rights in and to all intellectual property 

rights or assets (whether arising under statutory or common law, contract or otherwise), which include all 

of the following items: (i) inventions, discoveries, processes, designs, tools, molds, techniques, 

developments and related improvements whether or not patentable; (ii) patents, patent applications, 

industrial design registrations and applications therefor, divisions, divisionals, continuations, continuationsin-part, reissues, substitutes, renewals, registrations, confirmations, re-examinations, extensions and any 

provisional applications, requests for continuing examinations or continuing prosecution applications, or 

any such patents or patent applications, and any foreign or international equivalent of any of the foregoing; 

(iii) trademarks (whether registered, unregistered or pending), historical trademark files, trade dress, service 

marks, service names, trade names, brand names, product names, logos, distinguishing guises and indicia, 

domain names, internet rights (including IP Addresses and AS numbers), social media addresses and 

accounts, corporate names, fictitious names, other names, symbols (including business symbols), slogans, 

translations of any of the foregoing and any foreign or international equivalent of any of the foregoing and 

all goodwill associated therewith and (to the extent transferable by Law) any applications and/or 

registrations in connection with the foregoing and all advertising and marketing collateral including any of 

the foregoing (“Trademarks”); (iv) work specifications, tech specifications, databases and artwork; 

(v) technical scientific and other know-how and information (including promotional material), trade secrets, 

confidential information, methods, processes, practices, formulas, designs, design rights, patterns, assembly 

procedures, and specifications; (vi) drawings, prototypes, molds, models, tech packs, artwork, archival 

materials and advertising materials, copy, commercials, images, artwork and samples; (vii) rights 

associated with works of authorship including copyrights, moral rights, design rights, rights in databases, 

copyright applications, copyright registrations, rights existing under any copyright laws and rights to 

prepare derivative works; (viii) work for hire; (ix) all tangible embodiments of, and all intangible rights in, 

the foregoing; (x) the right to sue for infringement and other remedies against infringement of any of the 

foregoing, including the right to sue and collect for past infringement; and (xi) rights to protection of 

interests in the foregoing under the laws of all jurisdictions. 

“Interim Period” shall have the meaning specified in Section 6.1. 

“Inventory” shall mean any inventories of finished goods, children’s clothing and apparel and 

packaging and supplies. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 16 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 50 of 105
#4839-7420-7369v7 8 

“Inventory Purchase Agreement” shall mean that certain Asset Purchase Agreement and Bill of 

Sale, dated on or about March 1, 2019 by and among Gemstone, Buyer and, solely with respect to 

paragraphs 1 and 2 (e) thereof, GA Retail, Inc., Tiger Capital Group, LLC, Gordon Brothers Retail Partners, 

LLC, and Hilco Merchant Resources, LLC. 

“Jewel Brick and Mortar Business” shall mean Sellers’ business of operating brick-and-mortar 

retail stores under the “Janie and Jack®” brand name and selling children’s clothing and apparel under the 

“Janie and Jack®” brand name or related Trademarks included in the Transferred Trademarks at such retail 

store locations. 

“Jewel Business” shall mean the “Janie and Jack®” business as conducted as of the Agreement 

Date, including (i) the Jewel E-Commerce Business, (ii) the Jewel Brick and Mortar Business and 

(iii) designing, sourcing, importing, marketing, advertising, promoting, distributing and selling children’s 

clothing and apparel under the brand name “Janie and Jack®” through distribution and sales to domestic 

and international customers and distributors and through the Jewel Brick and Mortar Business and/or the 

Jewel E-Commerce Business; provided that, in each case, if the context expressly refers to the conduct of 

the Jewel Business following the Closing, then the “Jewel Business” shall refer to such business as 

conducted by Buyer and its Affiliates following the Closing. 

“Jewel E-Commerce Business” shall mean Sellers’ businesses of (i) owning, exploiting, and

licensing the brand name “Janie and Jack®” (and certain other Trademarks included in the Transferred 

Intellectual Property, including under the Assumed Contracts) and (ii) distributing and selling children’s 

clothing and apparel under the brand name “Janie and Jack®” through the E-Commerce Platform; provided 

that, in each case, if the context expressly refers to the conduct of the Jewel E-Commerce Business 

following the Closing, then the “Jewel E-Commerce Business” shall refer to such business as conducted by

Buyer and its Affiliates following the Closing. 

“Jewel Inventory” shall mean any Inventory under the “Janie and Jack®” brand name or related 

Trademarks included in the Transferred Trademarks utilized in the conduct of the Jewel Business. 

“Knowledge” shall mean, with respect to Sellers, the actual knowledge of the Chief Executive 

Officer, Chief Financial Officer or General Counsel of Gemstone after due inquiry. 

“Law” shall mean any federal, state, provincial, local, foreign, international or multinational 

constitution, statute, law, ordinance, regulation, rule, code, Order, principle of common law, or decree 

enacted, promulgated, issued, enforced or entered by any Governmental Entity, or court of competent 

jurisdiction, or other requirement or rule of law. 

“Leased Real Property” shall have the meaning specified in Section 2.1(e). 

“Liabilities” shall mean, as to any Person, all debts, adverse Claims, liabilities, commitments, 

responsibilities, and obligations of any kind or nature whatsoever, direct or indirect, absolute or contingent, 

whether accrued or unaccrued, vested or otherwise, liquidated or unliquidated, whether known or unknown, 

and whether or not actually reflected, or required to be reflected, in such Person’s balance sheet or other 

books and records. 

“Lien” shall have the meaning specified in section 101(37) of the Bankruptcy Code and shall 

include any pledge, option, charge, lien, debentures, trust deeds, hypothecation, easement, security interest, 

right-of-way, encroachment, mortgage, deed of trust, defect of title, restriction on transferability, restriction 

on use or other encumbrance, in each case whether imposed by agreement, law, equity or otherwise. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 17 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 51 of 105
#4839-7420-7369v7 9 

“Liquidation Agreement” shall mean that certain Agency Agreement, dated as of the Agreement 

Date, by and among Gemstone and its Subsidiaries party thereto, on the one hand, and GA Retail, Inc., 

Tiger Capital Group, LLC, Gordon Brothers Retail Partners, LLC, and Hilco Merchant Resources, LLC 

(collectively, the “Agent”), on the other hand, approved by the Bankruptcy Court.

“Local Bankruptcy Rules” shall mean the Local Bankruptcy Rules for the Eastern District of 

Virginia (Richmond Division) applicable to all cases in such district governed by the Bankruptcy Code. 

“Multiemployer Plan” shall mean a “multiemployer plan” as defined in Section 3(37) of ERISA. 

“Necessary Consent” shall have the meaning specified in Section 2.6. 

“Neutral Accountant” shall mean a national independent accounting firm selected by Buyer and 

reasonably acceptable to Sellers. 

“Notices” shall have the meaning specified in Section 9.5. 

“Order” shall mean any judgment, order, injunction, writ, ruling, decree, stipulation, determination, 

decision, verdict, or award of any Governmental Entity. 

“Ordinary Course of Business” shall mean that an action taken by a Person will be deemed to have 

been taken in the “Ordinary Course of Business” only if that action is taken in the ordinary course of 

business of such Person, consistent with past practices, recognizing that Sellers have filed the Chapter 11 

Cases. 

“Outside Back-Up Date” shall mean the date that is sixty (60) days after the date of the Sale Hearing 

(as defined in the Bidding Procedures). 

“Overhead and Shared Services” shall mean the ancillary, corporate or other shared services or 

processes that are provided by Gemstone or its Affiliates to (i) the Jewel Business and (ii) any Retained 

Business, including services and processes relating to: travel; meeting management and entertainment; 

labor; office supplies (including copiers and faxes); personal telecommunications (including e-mail); 

computer/telecommunications maintenance and support; software application and data hosting services; 

energy/utilities; procurement and supply arrangements; advertising and marketing; treasury; public 

relations, legal and regulatory matters; risk management (including workers’ compensation); payroll; 

procurement cards and travel cards; telephone/data connectivity; disaster recovery; accounting; tax; internal 

audit; executive management; quality control and oversight; product design and engineering; human 

resources and employee relations management; employee benefits; credit, collections and accounts payable; 

property management; facility management; site security; asset management; supply chain and 

manufacturing; global trade compliance; and customs and excise matters; provided, however, that for the 

avoidance of doubt, Overhead and Shared Services shall not include any Acquired Assets. 

“Owned Equipment” shall have the meaning specified in Section 2.1(f). 

“Party” or “Parties” shall have the meaning specified in the preamble. 

“Permits” shall mean permits, licenses, registrations, certificates of occupancy, approvals, 

consents, clearances and other authorizations issued by any Governmental Entity. 

“Permitted Liens” shall mean: (a) Liens for Taxes not yet due and payable or which are being 

contested in good faith by appropriate proceedings; (b) statutory liens of landlords, carriers, warehousemen, 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 18 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 52 of 105
#4839-7420-7369v7 10 

mechanics, and materialmen incurred in the Ordinary Course of Business for sums not yet due; (c) liens 

incurred or deposits made in the Ordinary Course of Business in connection with workers’ compensation, 

unemployment insurance and other types of social security; (d) applicable zoning, subdivision, building 

and other land use Laws and other land use restrictions that do not impair the present use of the subject 

Real Property; (e) liens or encumbrances that arise solely by reason of acts of Buyer or its successors and 

assigns or otherwise consented to by Buyer in accordance with the terms of this Agreement; (f) easements, 

covenants, conditions, restrictions and other similar encumbrances on Real Property that arise in the 

Ordinary Course of Business; (g) non-exclusive licenses granted in the Ordinary Course of Business; or (h) 

any Lien that will be removed or released by operation of the Sale Order or any other Order of the 

Bankruptcy Court, including, without limitation, any Lien granted or incurred in connection with an Order 

of the Bankruptcy Court and any Lien granted or incurred in connection with the Credit Agreement, the 

DIP Facility or that certain Credit Agreement, dated as of September 29, 2017, by among Gemstone and 

certain of its affiliates, as the loan parties thereunder, Bank of America, N.A., as administrative agent and 

collateral agent thereunder, and the lenders from time to time party thereto. 

“Person” shall mean an individual, a partnership, a joint venture, a corporation, a business trust, a 

limited liability company, a trust, an unincorporated organization, a joint stock company, a labor union, an 

estate, a Governmental Entity or any other entity. 

“Personal Information” shall have the meaning specified in Section 4.15. 

“Petition Date” shall have the meaning specified in the recitals. 

“PII” shall have the meaning specified in Section 6.19. 

“Post-Closing Covenant” shall have the meaning specified in Section 9.13. 

“Proceeding” shall mean any action, arbitration, audit, known investigation (including a notice of 

preliminary investigation or formal investigation), notice of violation, hearing, litigation or suit (whether 

civil, criminal or administrative), other than the Chapter 11 Cases, commenced, brought, conducted or heard 

by or before any Governmental Entity, including but not limited to any and all such actions related to 

restitution or remission in criminal proceedings and civil forfeiture and confiscation proceedings under the 

Law of any jurisdiction. 

“Properties” shall have the meaning specified in Section 4.8(a). 

“Property Taxes” shall mean all Real Property Taxes, personal property Taxes and similar ad 

valorem Taxes. 

“Purchase Price” shall have the meaning specified in Section 3.2. 

“Real Property” shall mean any real estate, land, building, structure, improvement or other real 

property of any kind or nature whatsoever owned, leased or occupied by any Person, and all appurtenant 

and ancillary rights thereto, including easements, covenants, water rights, sewer rights and utility rights. 

“Registered IP” shall have the meaning specified in Section 4.13(a). 

“Relating to the Jewel Business” shall mean used primarily or exclusively in the operation or 

conduct of the Jewel Business as conducted as of the date hereof. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 19 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 53 of 105
#4839-7420-7369v7 11 

“Representative” shall mean, with respect to any Person, such Person’s officers, directors, 

managers, employees, agents, representatives and financing sources (including any investment banker, 

financial advisor, accountant, legal counsel, consultant, other advisor, agent, representative or expert 

retained by or acting on behalf of such Person or its Subsidiaries). 

“Restricted Party” shall mean (a) any Person or government that is the subject of Sanctions, (b) any 

Person resident in or organized under the laws of any country or territory that is the subject of country- or 

territory-wide Sanctions (including Cuba, Iran, North Korea, Syria, or the Crimea region) or (c) owned or 

controlled by a Person or Persons described in clause (a) or (b). 

“Retained Business” shall mean, collectively, any and all businesses and operations conducted by 

any Seller and/or any of its Affiliates other than the Jewel Business provided that “Retained Business” does 

not include the Transferred Intellectual Property. 

“Sale Hearing” shall mean the hearing conducted by the Bankruptcy Court to approve the 

Transactions pursuant to the Sale Order. 

“Sale Motion” shall mean the motion filed by Seller in the Bankruptcy Court dated January 17, 

2019, and an appearing as item number 26 on the docket of the Bankruptcy Court in the Chapter 11 Cases. 

“Sale Order” shall mean the Order of the Bankruptcy Court in the form attached hereto as Exhibit 

A, as may be modified with Buyer’s consent (such consent not to be unreasonably withheld).

“Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered, 

or enforced from time to time by (a) the U.S. government (including the U.S. Department of State and the 

Office of Foreign Assets Control of the U.S. Department of the Treasury), (b) the United Nations Security 

Council, (c) the European Union, (d) Her Majesty’s Treasury of the United Kingdom, or (e) other relevant 

sanctions authority with jurisdiction over any Party. 

“Seller” or “Sellers” shall have the meaning specified in the preamble.

“Seller Fundamental Representations” shall have the meaning specified in Section 7.1(a). 

“Sellers Material Adverse Effect” shall mean any change, effect, event, occurrence, circumstance, 

state of facts or development that, individually or in the aggregate (taking into account all other such 

changes, effects, events, occurrences, circumstances, states of facts or developments), (a) has had, or would 

reasonably be expected to have, a material adverse effect on the ability of Sellers to consummate the 

Transactions or (b) has had, or would reasonably be expected to have, a material adverse effect on the Jewel 

Business, including the Acquired Assets and the Assumed Liabilities, taken as a whole; provided, however, 

that with respect to clause (b) only, the term “material adverse effect” shall not include any change, effect, 

event, occurrence, circumstance, state of facts or development that, directly or indirectly, alone or taken 

together, arising out of or attributable to: (i) any change generally affecting the international, national or 

regional markets applicable to the Jewel Business; (ii) any changes in, or effects arising from or relating to, 

national or international political or social conditions, including the engagement by the United States or 

any other country in hostilities or the escalation thereof, whether or not pursuant to the declaration of a 

national emergency or war, or the occurrence or the escalation of any military, cyber or terrorist attack upon 

the United States or any other country, or any of its territories, possessions, or diplomatic or consular offices 

or upon any military installation, asset, equipment or personnel of the United States; (iii) changes in, or 

effects arising from or relating to, financial, banking, or securities markets (including (A) any disruption of 

any of the foregoing markets, (B) any change in currency exchange rates, (C) any decline or rise in the price 

of any security, commodity, contract or index and (D) any increased cost, or decreased availability, of 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 20 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 54 of 105
#4839-7420-7369v7 12 

capital or pricing or terms related to any financing for the transactions contemplated by this Agreement); 

(iv) changes in Law, GAAP or official interpretations of the foregoing; (v) acts of nature, including 

outbreaks of illness or health emergencies, hurricanes, storms, floods, earthquakes and other natural 

disasters or force majeure events; (vi) the effect of any action contemplated by, or failure to take any action 

prohibited by, this Agreement; (vii) the pendency of the Chapter 11 Cases or the financial condition of 

Sellers; (viii) any failure, in and of itself, to achieve any budgets, projections, forecasts, estimates, plans, 

predictions, performance metrics or operating statistics or the inputs into such items (but, for the avoidance 

of doubt, not the underlying causes of any such failure to the extent such underlying cause is not otherwise 

excluded from the definition of Sellers Material Adverse Effect); (ix) changes or effects that arise from any 

seasonal fluctuations in the Jewel Business; (x) any matters arising out of the Chapter 11 Cases, including 

changes arising from, or effects of, any motion, application, pleading or Order filed under or in connection 

with, the Chapter 11 Cases and any objections in the Bankruptcy Court to (A) this Agreement and the other 

Transaction Documents and the transactions contemplated hereby and thereby, (B) the reorganization of 

Sellers and any related plan of reorganization or disclosure statement, or (C) the Bidding Procedures or the 

Sale Motion; (xi) the departure of officers or directors of any Seller after the Agreement Date; (xii) the 

execution and delivery of this Agreement or the announcement thereof or consummation of the 

Transactions or the identity, nature or ownership of Buyer, including the impact thereof on the relationships, 

contractual or otherwise, of the Jewel Business with employees, customers, lessors, suppliers, vendors or 

other commercial partners; and (xiii) any action taken by any Seller at the request of, or with the consent 

of, Buyer; which, in the case of any of the foregoing clauses (i) through (v) does not disproportionately 

affect the Jewel Business relative to other companies that participate in the markets and industries 

applicable to the Jewel Business. 

“Sellers Released Parties” shall have the meaning specified in Section 9.4. 

“Sellers’ Representative” shall have the meaning specified in Section 9.18. 

“Shared Contract” shall mean any Contract (other than any Assumed Contract) to which any Seller 

or any other Subsidiary of a Seller is a party and that inures to the benefit or burden of, or otherwise relates 

to, both (i) the Jewel Business and (ii) any other business of any Seller or any of their Subsidiaries 

(including any Retained Business). 

“Subsidiary” shall mean, with respect to any Person (a) a corporation, a majority of whose capital 

stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, 

owned by such Person, by a subsidiary of such Person, or by such Person and one or more subsidiaries of 

such Person, (b) a partnership in which such Person or a subsidiary of such Person is, at the date of 

determination, a general partner of such partnership, or (c) any other Person (other than a corporation) in 

which such Person, a subsidiary of such Person or such Person and one or more subsidiaries of such Person, 

directly or indirectly, at the date of determination thereof, has (i) at least a majority ownership interest 

thereof or (ii) the power to elect or direct the election of a majority of the directors or other governing body 

of such Person. 

“Successful Bidder” shall mean, if an Auction is conducted, the prevailing party with respect to the 

Acquired Assets at the conclusion of such Auction. 

“Tax” or “Taxes” shall mean any and all taxes, assessments, levies, duties or other governmental 

charge imposed by any Governmental Entity, including any income, alternative or add-on minimum, 

accumulated earnings, franchise, capital stock, environmental, profits, windfall profits, gross receipts, sales, 

use, value added, transfer, registration, stamp, premium, excise, customs duties, severance, Real Property, 

personal property, ad valorem, occupancy, license, occupation, employment, payroll, social security, 

disability, unemployment, withholding, corporation, inheritance, value added, stamp duty reserve, 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 21 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 55 of 105
#4839-7420-7369v7 13 

estimated or other tax, assessment, levy, duty (including duties of customs and excise) or other 

governmental charge of any kind whatsoever, including any payments in lieu of taxes or other similar 

payments, chargeable by any Tax Authority together with all penalties, interest and additions thereto, 

whether disputed or not. 

“Tax Authority” shall mean any taxing or other authority (whether within or outside the U.S.) 

competent to impose Tax. 

“Tax Return” shall mean any and all returns, declarations, reports, documents, Claims for refund, 

or information returns, statements or filings which are supplied or required to be supplied to any Tax 

Authority or any other Person, including any schedule or attachment thereto, and including any amendments 

thereof. 

“Transaction Documents” shall mean this Agreement and any agreement, instrument or other 

document entered into pursuant to the terms hereof, including the Transition Services Agreement and the 

Assignment and Assumption Agreement. 

“Transactions” shall mean the transactions contemplated by this Agreement to be consummated at 

the Closing, including the purchase and sale of the Acquired Assets and the assumption of the Assumed 

Liabilities as provided for in this Agreement. 

“Transfer Tax” or “Transfer Taxes” shall mean any sales, use, transfer, conveyance, documentary 

transfer, stamp, recording or other similar Tax imposed upon the sale, transfer or assignment of property or 

any interest therein or the recording thereof, and any penalty, addition to Tax or interest with respect thereto, 

but such term shall not include any Tax on, based upon or measured by, the net income, gains or profits 

from such sale, transfer or assignment of the property or any interest therein. 

“Transferable Permits” shall have the meaning specified in Section 2.1(j). 

“Transferred Employee” shall have the meaning specified in Section 6.7(b). 

“Transferred Intellectual Property” shall have the meaning specified in Section 2.1(a). 

“Transferred Trademarks” shall have the meaning specified in Section 2.1(a)(iii). 

“Transition Services Agreement” shall mean that certain Transition Services Agreement in the form 

attached hereto as Exhibit B. 

“U.S. Person” shall mean any Person that is a “United States person” as defined in 

Section 7701(a)(30) of the Code. 

“WARN Act” shall mean the Worker Adjustment and Retraining Notification Act of 1988 and any 

similar Law, including any other Law of any jurisdiction relating to plant closings or mass layoffs. 

1.2 Interpretation. 

(a) Whenever the words “include,” “includes” or “including” are used in this 

Agreement they shall be deemed to be followed by the words “without limitation.”

(b) Words denoting any gender shall include all genders. Where a word or phrase is 

defined herein, each of its other grammatical forms shall have a corresponding meaning. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 22 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 56 of 105
#4839-7420-7369v7 14 

(c) A reference to any Party to this Agreement or any other agreement or document 

shall include such Party’s successors and permitted assigns.

(d) A reference to any legislation or to any provision of any legislation shall include 

any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations 

and statutory instruments issued thereunder or pursuant thereto. 

(e) All references to “$” and dollars shall be deemed to refer to United States currency.

(f) All references to any financial or accounting terms shall be defined in accordance 

with GAAP. 

(g) The words “hereof,” “herein” and “hereunder” and words of similar import when 

used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this 

Agreement, and Section, Disclosure Schedule and exhibit references are to this Agreement unless otherwise 

specified. All article, section, paragraph, schedule and exhibit references used in this Agreement are to 

articles, sections and paragraphs of, and schedules and exhibits to, this Agreement unless otherwise 

specified. 

(h) The meanings given to terms defined herein shall be equally applicable to both 

singular and plural forms of such terms. 

(i) When calculating the period of time before which, within which or following 

which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in 

calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in 

question shall end on the next succeeding Business Day. All references herein to time are references to New 

York City time, unless otherwise specified herein. 

(j) If a word or phrase is defined, its other grammatical forms have a corresponding 

meaning. 

(k) A reference to any agreement or document (including a reference to this 

Agreement) is to the agreement or document as amended or supplemented, except to the extent prohibited 

by this Agreement or that other agreement or document. 

(l) Exhibits, Schedules and Annexes to this Agreement are hereby incorporated and 

made a part hereof and are an integral part of this Agreement. Any capitalized terms used in any Schedule 

or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement. 

ARTICLE 2 

TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES 

2.1 Assets to be Acquired. Subject to the entry of the Sale Order, and the terms and conditions 

of this Agreement and the Sale Order, at the Closing, Sellers shall sell, convey, assign, transfer and deliver 

to Buyer (or one or more Persons (including any Affiliates of Buyer), as designated by Buyer in writing to 

Gemstone prior to the Sale Hearing (each, a “Designated Purchaser”), which such writing shall indicate 

which Acquired Asset shall be purchased, acquired and accepted by each such Person), and Buyer or 

Designated Purchasers, as applicable, shall purchase, acquire and accept, all of the right, title and interest, 

free and clear of all Liens (other than Liens included in the Assumed Liabilities and Permitted Liens or as 

otherwise set forth in the Sale Order), of Sellers in each and all of the Acquired Assets. “Acquired Assets” 

shall mean all properties, assets, interests and rights of every nature, tangible and intangible, of Sellers, real 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 23 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 57 of 105
#4839-7420-7369v7 15 

or personal, now existing or hereafter acquired, whether or not reflected on the books or financial statements 

of Sellers as the same shall exist on the Closing Date Relating to the Jewel Business (other than the 

Excluded Assets), and in any event, including the following assets: 

(a) all Intellectual Property Relating to the Jewel Business owned by Sellers, or in 

which Sellers have any interest or right, including (all such Intellectual Property in this Section 2.1(a), 

collectively, the “Transferred Intellectual Property”):

(i) the copyright registrations set forth in Schedule 2.1(a)(i); 

(ii) the internet domain name registrations and social media accounts set forth 

in Schedule 2.1(a)(ii) as well as all content, graphics, and artistic works displayed on the 

websites and social media sites and all copyrights therein; 

(iii) the Trademark applications and registrations set forth in 

Schedule 2.1(a)(iii) (the “Transferred Trademarks”), including the historical trademark 

files and any common law rights available anywhere in the world that are the subject of 

such registrations, together with all goodwill associated therewith, including the right to 

sue and collect for past infringement, and all common law rights to the trademarks that are 

the subject of such Transferred Trademarks; 

(iv) any and all of Sellers’ right, title and interest to the name “Janie and Jack”, 

or any derivation thereof; 

(v) any and all agreements where Seller has acquired a license from a third 

party for use of the third party trademarks in the Jewel Business and that are set forth in 

Schedule 2.1(a)(v); and 

(vi) any software and mobile applications (and copyrights therein) and 

licenses, maintenance service agreements, current statements of work and any amendments 

thereto, customizations, custom codes and extensions related thereto (whether done by any 

Seller or a third party on behalf of any Seller) and all master service agreements related to 

information technology services, in each case, used in the operation of the Jewel Business, 

including as set forth in Schedule 2.1(a)(vi); 

(b) subject to Section 8.11 of the Liquidation Agreement, the E-Commerce Platform, 

including all information technology hardware, software and data collection systems used in connection 

therewith that are owned, leased or licensed by Sellers or any of their Subsidiaries and all copyright rights 

therein; 

(c) all goodwill associated with the Jewel Business, the Acquired Assets and the 

Assumed Liabilities (excluding, for the avoidance of doubt, any and all goodwill to the extent associated 

with the Excluded Assets); 

(d) except as set forth in Section 2.2(c) and Section 2.2(e), and subject to the right of 

Sellers to retain copies (at their expense and subject to Section 6.17 and only to the extent and for the 

purposes expressly set forth in Section 2.2(c) and Section 2.2(e)), all Acquired Business Information in the 

possession or reasonable control of any Seller and whether in hard or electronic format; 

(e) (i) those leases and other Contracts (together with all of Sellers’ deposits 

thereunder, and all of Sellers’ rights and interests in on-order and undelivered goods associated therewith) 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 24 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 58 of 105
#4839-7420-7369v7 16 

entered into by any Seller and Relating to the Jewel Business listed on Schedule 2.1(e)(i) (collectively with 

all other Contracts contemplated by this Section 2.1, the “Assumed Contracts”), and (ii) all right, title and 

leasehold interest of Sellers in the real property set forth on Schedule 2.1(e)(ii), together with all right, title 

and leasehold interest of Sellers in the buildings, structures, fixtures and improvements erected thereon, 

including the Facilities, and all rights, privileges, easements, licenses and other appurtenances relating 

thereto (collectively, the “Leased Real Property”);

(f) all (i) Sellers’ owned equipment, machinery, furniture, spare parts, fixtures and 

improvements Relating to the Jewel Business (the “Owned Equipment”), (ii) rights of Sellers to the 

equipment, machinery, furniture, spare parts, fixtures and improvements which are leased pursuant to an 

Assumed Contract (collectively with the Owned Equipment, the “Equipment”), and (iii) rights of Sellers to 

the warranties, express or implied, and licenses received from manufacturers and sellers of the Equipment; 

(g) except with respect to any Avoidance Action or Unperfected Commercial Tort 

Claims (as defined in the Order of the Bankruptcy Court approving the DIP Facility), all Claims of any 

Seller (including for royalties, fees or other income, past, present or future infringement, misappropriation 

or violation of, any of the Transferred Intellectual Property) to the extent arising from or relating to or in 

connection with the Acquired Assets or the Assumed Liabilities (regardless of whether or not asserted by 

any Seller), all of the proceeds from the foregoing which are accrued and unpaid as of the Closing, all rights 

of indemnity, warranty rights, guaranties received from vendors, suppliers or manufacturers, rights of 

contribution, rights to refunds, rights of reimbursement and other rights of recovery possessed by any Seller 

against other Persons and the prosecution files of Sellers related thereto, in each case, to the extent related 

to the Acquired Assets or the Assumed Liabilities (regardless of whether such rights are currently 

exercisable); 

(h) all data and information relating to, or derived from, identified or identifiable 

customers, including purchase files and branded loyalty promotion programs and other similar information 

related to customer purchases and other engagement with the Jewel Business, including personal 

information (such as name, address, telephone number, e-mail address, device and advertising identifiers, 

customer or email keys or other persistent identifiers, browsing information, preferences, badges, segments 

and any other database information) and customer purchase history at a transaction level (including dollar 

amounts, dates, and items purchased, but excluding from the foregoing any non-tokenized credit card 

numbers or related customer payment source, social security numbers, or other information to the extent 

prohibited by Law) relating to customers of, or collected through or used in the operation of (i) the Jewel 

Business, (ii) the E-Commerce Platform or any similar e-commerce platform owned, operated or controlled 

by Sellers, (iii) any catalog sales, other online or print mailing or similar distribution channels, (iv) partner 

e-commerce platforms or retail stores or (v) any customer lists, in each case, in the possession or reasonable 

control of the Sellers; provided that, with respect to clauses (ii), (iii), (iv) and (v) of this Section 2.1(h), 

solely to the extent Relating to the Jewel Business; 

(i) all rights to insurance proceeds Relating to the Jewel Business; 

(j) all Permits Relating to the Jewel Business, but only if and to the extent that such 

Permits are transferable by Sellers to Buyer or Designated Purchaser, as the case may be, by assignment or 

otherwise (including upon request or application to a Governmental Entity or any third party, or which will 

pass to Buyer or Designated Purchaser, as the case may be, as successor in title to the Acquired Assets by 

operation of Law) (the “Transferable Permits”);

(k) all current assets Relating to the Jewel Business as of immediately prior to the 

Closing, excluding accounts receivable; 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 25 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 59 of 105
#4839-7420-7369v7 17 

(l) all deposits and prepaid expenses of Sellers relating to any of the Assumed 

Contracts, including (i) security deposits with third party suppliers, vendors, service providers or landlord 

and lease and rental payments, (ii) tenant reimbursements, (iii) prepaid Property Taxes and (iv) prepayments, but excluding any deposits or other amounts paid by or on behalf of Sellers to vendors with 

respect to purchase orders for Inventory; 

(m) all Real Property Relating to the Jewel Business (other than the Leased Real 

Property, which is the subject of Section 2.1(e)(ii)) and any buildings, improvements and fixtures thereon 

and furniture thereat; 

(n) all Jewel Inventory in Sellers’ possession; and

(o) those personnel records (including without limitation those pertaining to training, 

performance, salary, compensation, benefits, visa status, and I-9 information) relating to the Transferred 

Employees that can be transferred to Buyer, Designated Purchaser or one of their respective Affiliates under 

applicable Law. 

2.2 Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the 

Acquired Assets do not include, and in no event shall Sellers be deemed to sell, transfer, assign, convey or 

deliver and Sellers shall retain, all right, title and interest to, Sellers’ right, title or interest in or to any of 

the following properties, interests, rights and assets of Sellers (collectively, the “Excluded Assets”):

(a) each Seller’s rights under this Agreement or any of the Transaction Documents 

(including the right to receive the Purchase Price); 

(b) all of Sellers’ or any of their respective Affiliates’ certificates of incorporation and 

other organizational documents, qualifications to conduct business as a foreign entity, arrangements with 

registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute 

books, stock transfer books, stock certificates and other documents relating to the organization, 

maintenance and existence of any Seller or any of its Affiliates as a corporation, limited liability company 

or other entity; 

(c) all books and records related to Taxes paid or payable by any Seller or any of its 

Affiliates; provided that Buyer shall be entitled to copies of Tax Returns in respect of Property Taxes 

relating to the Acquired Assets or copies of any portions of such documents relating to the Acquired Assets; 

(d) all shares of capital stock or other equity interests of any Seller or any of its 

Affiliates or securities convertible into or exchangeable or exercisable for shares of capital stock or other 

equity interests of any Seller or any of its Affiliates, including the entities listed on Schedule 2.2(d); 

(e) any (i) personnel records pertaining to any employees of Sellers or any of their 

respective Affiliates other than Transferred Employees, and any personnel records for Transferred 

Employees that cannot be transferred to Buyer or one of its Affiliates under applicable Law, (ii) copies of 

any book, record, literature, list and any other written or recorded information constituting Acquired 

Business Information that has been provided to Buyer and to which Sellers and their respective Affiliates 

in good faith determine they are reasonably likely to need access for bona fide business, tax or legal 

purposes (including, for the avoidance of doubt, the provision of services under the Transition Services 

Agreement), (iii) Excluded Information or (iv) other books and records, in either case, that Sellers and their 

respective Affiliates are required by Law to retain, including Tax Returns, taxpayer and other identification 

numbers, financial statements and corporate or other entity filings; provided that, to the extent permitted by 

applicable Law, Buyer shall have the right to obtain copies of any portions of such retained books and 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 26 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 60 of 105
#4839-7420-7369v7 18 

records to the extent that such portions relate to the Jewel Business or any Acquired Asset or are otherwise 

necessary for Buyer to comply with applicable Law; 

(f) (i) all assets, properties, interests and other rights of every nature in respect of the 

Benefit Plans and any other compensation or benefit plans, programs, arrangements, or agreements of 

Sellers or any of their Subsidiaries, in each case including all associated funding media, assets, reserves, 

credits and service agreements, and all documents created, filed or maintained in connection therewith, 

together with any applicable insurance policies related thereto, (ii) all employment, personnel and 

compensation records relating to any current or former employee of any Seller or any Subsidiary of any 

Seller who is not, and does not become, a Transferred Employee, and (iii) those portions of employment, 

personnel and compensation records relating to the Transferred Employees that cannot be transferred to 

Buyer or one of its Affiliates under applicable Law; 

(g) all Permits and pending applications therefor to the extent not Relating to the Jewel 

Business; 

(h) all Claims that Sellers or any of their respective Affiliates may have against any 

third Person with respect to any Excluded Assets or Excluded Liabilities; 

(i) all cash and cash equivalents, securities, security entitlements, instruments and 

other investments of Sellers and all bank accounts and security accounts, including any cash collateral that 

is collateralizing any letters of credit; 

(j) all Excluded Contracts and all prepaid expenses related thereto; 

(k) except as set forth in Section 2.1(i), all insurance policies and rights to proceeds 

thereof (and Buyer acknowledges that, as of the Closing, the Acquired Assets and the Jewel Business shall 

cease to be insured by any insurance policies of any Seller or any of their Subsidiaries); 

(l) all Inventory that is not Jewel Inventory; 

(m) any documents and agreements relating to the Chapter 11 Cases or to the sale or 

other disposition of the Jewel Business, the Acquired Assets or any other asset of any Seller or any of its 

Affiliates other than those to be delivered to Buyer in accordance with this Agreement; 

(n) all prepayments, good faith and other bid deposits submitted by any third party 

under the terms of the Bidding Procedures Order; 

(o) all Avoidance Actions and all other avoidance actions, including fraud, selfdealing, fraudulent transfer, or similar claims against any officer or director of any Seller or any of its 

Affiliates and all Unperfected Commercial Tort Claims (as defined in the Order of the Bankruptcy Court 

approving the DIP Facility); and 

(p) all assets, properties, interests and rights of any Seller used primarily or exclusively 

in the operation or conduct of the Retained Business as conducted as of the date hereof, except for any such 

assets, properties, interests and rights described or identified in Section 2.1 or on Schedule 2.1. 

2.3 Liabilities to be Assumed by Buyer. Subject to the terms and conditions of this Agreement, 

at the Closing, Sellers shall assign to Buyer or Designated Purchasers, as applicable, and Buyer or 

Designated Purchasers, as applicable, shall assume from Sellers and pay when due, perform and discharge, 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 27 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 61 of 105
#4839-7420-7369v7 19 

in due course, without duplication, each of the Assumed Liabilities. “Assumed Liabilities” shall mean solely 

the following Liabilities: 

(a) all Liabilities of Sellers under each of the Assumed Contracts that become due 

from and after the Closing Date; 

(b) all Cure Costs; 

(c) all Liabilities (i) related to the Transferred Employees arising on or after the date 

such applicable Employee becomes a Transferred Employee, including under the WARN Act; (ii) in respect 

of accrued and unpaid vacation or personal time off related to the Transferred Employees, and (iii) in respect 

of accrued base salary, store bonuses or other wages related to the Transferred Employees; 

(d) all Transfer Taxes; 

(e) all Liabilities related to Property Taxes imposed upon or assessed directly against 

the Acquired Assets attributable to the period commencing on the Closing Date; and 

(f) all Liabilities incurred from or after and arising from or after the Closing with 

respect to or relating to the ownership or operation of any of the Acquired Assets or Relating to the Jewel 

Business. 

Notwithstanding the foregoing and for the avoidance of doubt, Assumed Liabilities shall not include any 

Liability relating to or arising out of any violation of Law by, or any Claim against, any Seller or any breach, 

default or violation by any Seller of or under any Assumed Contracts, other than the Cure Costs. 

2.4 Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer 

shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, 

perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers, whether 

existing on the Closing Date or arising thereafter, other than the Assumed Liabilities, including those 

relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):

(a) all costs and expenses incurred or to be incurred by Sellers in connection with this 

Agreement and the consummation of the Transactions, except as otherwise provided in the Transition 

Services Agreement; 

(b) all Liabilities (i) related to any current or former employee of any Seller or of any 

Subsidiary of any Seller (other than all Liabilities related to the Transferred Employees arising on or after 

the date such applicable Employee becomes a Transferred Employee, including under the WARN Act) and 

(ii) under any Benefit Plan (including all assets, trusts, insurance policies and administration service 

contracts related thereto); 

(c) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers 

for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision 

of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for 

which Buyer or Designated Purchaser is liable pursuant to Section 2.3(d), Section 2.3(e) and/or 

Section 2.3(f); 

(d) all Liabilities under the corporate headquarters lease for the Retained Business; 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 28 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 62 of 105
#4839-7420-7369v7 20 

(e) all Liabilities arising out of, relating to or with respect to any and all Employees, 

and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing; 

(f) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s 

fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement 

for which any Seller or its Affiliates are responsible; 

(g) all Liabilities, or corrective or remedial obligations with respect to Facilities or 

operation of the Jewel Business (including any related offsite disposal locations) which arises under or 

relates to any Environmental Laws (including without limitation any relating to exposure to Hazardous 

Materials) except to the extent the facts or conditions underlying such Liability or obligation are caused 

after Closing; and 

(h) all Liabilities arising out of, concerning, in connection with, or relating to the Real 

Property (other than the Leased Real Property), the Retained Business or the Proceedings listed on Schedule 

4.6; 

provided that in the event of any conflict between Section 2.3 and this Section 2.4, Section 2.4 will control. 

2.5 [Reserved] 

2.6 Non-Assignment of Assumed Contracts. 

(a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall 

not constitute an agreement to assign any Assumed Contract which, after giving effect to the provisions of 

Section 365 of the Bankruptcy Code, is not assignable or transferable without the consent of any Person, 

other than the Sellers, any of their respective Affiliates or Buyer, to the extent that such consent shall not 

have been given prior to the Closing; provided, however, that (i) the Sellers shall use, whether before or 

after the Closing, its commercially reasonable efforts to obtain all necessary consents (each, a “Necessary 

Consent”) to the assignment and transfer thereof, it being understood that, to the extent the foregoing shall 

require any action by the Sellers that would, or would continue to, have an adverse effect on the business 

of Buyer or any of its Affiliates after the Closing, such action shall require the prior written consent of 

Buyer, and (ii) in the event that any Assumed Contract is deemed not to be assigned pursuant to clause (i) 

of this Section 2.6(a), the Sellers shall (A) use commercially reasonable efforts to obtain such necessary 

consents as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and 

commercially reasonable arrangement reasonably proposed by Buyer, including subcontracting, licensing 

or sublicensing to Buyer any or all of any Seller’s rights and obligations with respect to any such Assumed 

Contract, under which Buyer shall obtain (without infringing upon the legal rights of such third party or 

violating any Law) the economic rights and benefits under such Assumed Contract with respect to which 

such Necessary Consent has not been obtained. Upon satisfying any requisite consent requirement 

applicable to such Assumed Contract after the Closing, such Assumed Contract shall promptly be 

transferred and assigned to Buyer in accordance with the terms of this Agreement. These commercially 

reasonable efforts shall not require any material payment or other material consideration from the Sellers 

or Buyer (other than the Cure Costs, which shall be the responsibility of Buyer), and any such consent shall 

contain terms and conditions reasonably acceptable to the Parties. For the avoidance of doubt, the term 

“material” in the prior sentence means material in the context of the relevant Assumed Contract. 

(b) Subject to Section 2.6(a), if after the Closing (i) Buyer or any of its Affiliates holds 

any Excluded Assets or Excluded Liabilities or (ii) any Seller or any of their Affiliates holds any Acquired 

Assets or Assumed Liabilities, Buyer or the applicable Seller, will promptly transfer (or cause to be 

transferred) such assets or assume (or cause to be assumed) such Liabilities to or from (as the case may be) 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 29 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 63 of 105
#4839-7420-7369v7 21 

the other party. Prior to any such transfer, the party receiving or possessing any such asset will hold it in 

trust for such other party. 

2.7 Assumption and Assignment of Executory Contracts. Sellers shall provide timely and 

proper written notice of the motion seeking entry of the Sale Order to all parties to any executory Contracts 

to which any Seller is a party that are Assumed Contracts and take all other actions necessary to cause such 

Contracts to be assumed by Sellers and assigned to Buyer pursuant to Section 365 of the Bankruptcy Code, 

as applicable, to the extent that such Contracts are Assumed Contracts. At the Closing, Sellers shall, 

pursuant to the Sale Order and the Assignment and Assumption Agreement, assume and assign to Buyer 

(the consideration for which is included in the Purchase Price), all Assumed Contracts that may be assigned 

by any such Seller to Buyer pursuant to Sections 363 and 365 of the Bankruptcy Code, as applicable, subject 

to provision by Buyer of adequate assurance as may be required under Section 365 of the Bankruptcy Code 

and payment by Buyer of the Cure Costs in respect of Assumed Contracts pursuant to and in accordance 

with Section 365 of the Bankruptcy Code, as applicable, and the Sale Order. At the Closing, Buyer shall 

assume, and thereafter in due course and in accordance with its respective terms pay, fully satisfy, discharge 

and perform all of the obligations under each Assumed Contract (other than in respect of the Cure Costs, 

the payment of which shall be the responsibility of Buyer) pursuant to Section 365 of the Bankruptcy Code, 

as applicable. 

ARTICLE 3 

CLOSING; PURCHASE PRICE 

3.1 Closing; Transfer of Possession; Certain Deliveries. 

(a) The consummation of the Transactions (the “Closing”) shall take place on the 

second Business Day after the satisfaction of all of the conditions set forth in Article 7 (or the waiver thereof 

by the Party entitled to waive that condition) or on such other date as the Parties hereto shall mutually agree. 

The Closing shall be held at the offices of Milbank LLP, 55 Hudson Yards, New York NY 10001, at 10:00 

a.m., local time, unless the Parties hereto otherwise agree. The actual date of the Closing is herein called 

the “Closing Date”.

(b) At the Closing, Sellers shall deliver to Buyer: 

(i) an officer’s certificate, dated as of the Closing Date, executed by a duly 

authorized officer of Gemstone certifying that the conditions set forth in Section 7.1(a) and Section 7.1(b) 

have been satisfied; 

(ii) an electronic copy of the information required under Section 2.1(b), 

Section 2.1(d) and Section 2.1(h), except with respect to e-mails, which Buyer may retrieve from Sellers at 

its sole cost and expense upon reasonable prior request and in a commercially reasonable manner (it being 

understood that Sellers shall cooperate and work with Buyer in good faith in connection with any such 

request); 

(iii) a duly executed bill of sale, in a form mutually agreed to by the Parties, 

transferring the Acquired Assets to Buyer; 

(iv) the duly executed Transition Services Agreement; 

(v) the duly executed Assignment and Assumption Agreement; 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 30 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 64 of 105
#4839-7420-7369v7 22 

(vi) for each Seller (or if any Seller is a disregarded entity for U.S. federal 

income tax purposes, its regarded owner) that is a U.S. Person, a duly executed FIRPTA Affidavit from 

each such Seller (or, if such Seller is a disregarded entity for U.S. federal income tax purposes, its regarded 

owner); and 

(vii) duly executed lease assignments in a form reasonably satisfactory to 

Sellers and Buyer, or Sale Order(s) of the Bankruptcy Court, as shall be required to convey to Buyer all of 

Sellers’ interests in respect of the Leased Real Property, which lease assignments shall be in recordable 

form, duly executed and acknowledged. 

(c) At the Closing, Buyer shall deliver to Sellers: 

(i) the Closing Consideration (as defined below) by wire transfer of 

immediately available funds to an account designated in writing by Sellers; 

(ii) an officer’s certificate, dated as of the Closing Date, executed by a duly 

authorized officer of Buyer certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have 

been satisfied; 

(iii) the duly executed Transition Services Agreement; and 

(iv) the duly executed Assignment and Assumption Agreement. 

3.2 Consideration. The aggregate consideration for the Acquired Assets shall be (i) 

$35,000,000 (the “Purchase Price”) and (ii) the assumption of the Assumed Liabilities. The consideration 

payable to the Sellers by Buyer at Closing shall equal the Purchase Price minus the Good Faith Deposit 

minus the Incremental Deposit Amount paid by Buyer before the Closing (if any) (the “Closing 

Consideration”). 

3.3 Allocation of Purchase Price. (i) The sum of the Purchase Price and the amount of the 

Assumed Liabilities (to the extent properly taken into account under the Code) shall be allocated between 

Sellers and (ii) the amount allocated to the Acquired Assets sold by each such Seller shall be further 

allocated among such Acquired Assets in accordance with Section 1060 of the Code and the Treasury 

Regulations promulgated thereunder (the “Allocation”). The Allocation shall be delivered by Buyer to 

Sellers within ninety (90) days after the Closing. Sellers will have the right to raise reasonable objections 

to the Allocation within thirty (30) days after Buyer’s delivery thereof, in which event Buyer and Sellers 

will negotiate in good faith to resolve such dispute. If Buyer and Sellers cannot resolve such dispute within 

fifteen (15) days after Sellers notify Buyer of such objections, such dispute with respect to the Allocation 

shall be resolved promptly by the Neutral Accountant, the costs of which shall be shared in equal amounts 

by Buyer, on the one hand, and Sellers, on the other hand. The decision of the Neutral Accountant in respect 

of the Allocation shall be final and binding upon Buyer and Sellers. Buyer and Sellers shall file all Tax 

Returns (including, but not limited to, Internal Revenue Service Form 8594) consistent with the Allocation 

absent a change in Law; provided, however, that nothing contained herein shall prevent Buyer or any Seller 

from settling any proposed deficiency or adjustment by any Tax Authority based upon or arising out of the 

Allocation, and neither Buyer nor any Seller shall be required to litigate before any court any proposed 

deficiency or adjustment by any Tax Authority challenging such Allocation. Buyer and Sellers shall 

promptly notify and provide the other with reasonable assistance in the event of an examination, audit, or 

other proceeding relating to Taxes regarding the Allocation of the Purchase Price and the amount of the 

Assumed Liabilities pursuant to this Section 3.3. Notwithstanding any other provisions of this Agreement, 

the foregoing agreement shall survive the Closing Date without limitation. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 31 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 65 of 105
#4839-7420-7369v7 23 

ARTICLE 4 

REPRESENTATIONS AND WARRANTIES OF SELLERS 

Except as set forth in the Disclosure Schedules, Sellers jointly and severally hereby represent and 

warrant to Buyer, as of the Agreement Date and the Closing Date as follows: 

4.1 Organization. 

(a) Each Seller is duly organized, validly existing and in good standing under the Laws 

of the jurisdiction of its organization and has all requisite corporate power and authority to own, lease, 

develop and operate the Acquired Assets and to carry on the Jewel Business as now being conducted. 

(b) Each Seller (i) is duly qualified or licensed to do business as a foreign corporation 

or limited liability company, as applicable, and is in good standing under the Laws of each jurisdiction 

where the nature of the property owned or leased by it or the nature of the Jewel Business makes such 

qualification or license necessary, except where any such failure to be so qualified or licensed, individually 

in the aggregate, would not result in a Sellers Material Adverse Effect, and (ii) pursuant to Sections 1107 

and 1108 of the Bankruptcy Code and the Orders of the Bankruptcy Court, has all necessary corporate or 

limited liability company power and authority to own and operate its properties, to lease the property it 

operates under lease and to conduct the Jewel Business as debtor-in-possession. 

4.2 Due Authorization, Execution and Delivery; Enforceability. Each Seller has all requisite 

corporate or limited liability company power and authority to execute and deliver this Agreement and the 

other Transaction Documents to which it is (or will become at Closing) a party and to perform its obligations 

hereunder and thereunder (subject, in the case of the obligation to consummate the Transactions, to the 

entry of the Sale Order). The execution, delivery and performance by each of Sellers of this Agreement and 

the other Transaction Documents to which it is (or will become at Closing) a party and the consummation 

of the Transactions have been duly and validly authorized by all requisite corporate or limited liability 

company action, as applicable, on the part of each such Seller and no other corporate or limited liability 

company action, as applicable, on the part of each such Seller is necessary to authorize this Agreement and 

such other Transaction Documents and to consummate the Transactions (subject, in the case of the 

obligation to consummate the Transactions, to the entry of the Sale Order). This Agreement and the other 

Transaction Documents to which each of Sellers is (or will become at Closing) party have been (or will be) 

duly and validly executed and delivered by each such Seller and (assuming the due authorization, execution 

and delivery by all parties hereto and thereto, other than such Seller) constitute (or will constitute) valid 

and binding obligations of each such Seller enforceable against each such Seller in accordance with their 

terms (subject to the entry of the Bidding Procedures Order and, in the case of the obligation to consummate 

the Transactions, to the entry of the Sale Order). 

4.3 Governmental Consents. No notice to, consent, approval or authorization of or designation, 

declaration or filing with any Governmental Entity is required by any Seller with respect to such Sellers’ 

execution, delivery and performance of any Transaction Document to which it is (or will become at Closing) 

a party or the consummation of the Transactions, except (a) as may be required under the HSR Act, (b) the 

Sale Order having been entered by the Bankruptcy Court, (c) notices, filings and consents required in 

connection with the Chapter 11 Cases and (d) any consent, approval or authorization of or designation, 

declaration or filing with any Governmental Entity the failure of which to be made or obtained would not, 

individually or in the aggregate, be, or reasonably be expected to be, material to the Acquired Assets taken 

as a whole. 

4.4 No Conflicts. Subject to the receipt of the Necessary Consents set forth on Schedule 4.4 

and the Sale Order having been entered by the Bankruptcy Court, the execution, delivery and performance 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 32 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 66 of 105
#4839-7420-7369v7 24 

by such Seller of any Transaction Document to which such Seller is (or will become at Closing) a party, 

and the consummation of the Transactions, does not and will not (a) conflict with or result in any breach of 

any provision of its certificate of incorporation or bylaws or comparable governing documents, (b) without 

giving effect to Section 2.6, conflict with or result in the breach of the terms, conditions or provisions of or 

constitute a default (or an event which with notice or lapse of time or both would become a default) under, 

or give rise to any right of termination, acceleration or cancellation of any right or obligation or to a loss of 

any benefit under any provision of any Assumed Contract, (c) result in a violation of any Law or Order 

applicable to it or (d) result in the creation or imposition of any Lien on any Acquired Asset other than 

Permitted Liens, except, in the case of clauses (b), (c) and/or (d), as would not, individually or in the 

aggregate, be, or reasonably be expected to be, material to the Acquired Assets, taken as a whole. 

4.5 Title to Acquired Assets. 

(a) Except for Permitted Liens, Sellers have good and valid title to the material 

Acquired Assets (other than the Leased Real Property, which is addressed in Section 4.5(b)). No 

Subsidiaries or Affiliates of Gemstone, other than Sellers, hold any material assets, other than Excluded 

Assets, Relating to the Jewel Business. 

(b) Each lease, ground lease, sublease, license, option or other agreement related to 

the Leased Real Property to which any Seller is a party is a legal, valid, binding and enforceable obligation 

of the applicable Seller and each such lease, ground lease, sublease, license, option or other agreement is in 

full force and effect, except as would not, individually or in the aggregate, be, or, reasonably expected to 

be, material to the Acquired Assets, taken a as a whole. 

(c) Sellers are not in default under any such leases, ground leases, subleases, licenses, 

options or other agreements, and no condition exists which (with notice or lapse of time or both) would 

constitute a default by any Seller thereunder or, to the Knowledge of Sellers, by the other parties thereto, 

except as would not, individually or in the aggregate, be, or, reasonably be expected to be, material to the 

Acquired Assets, taken a as a whole. 

(d) Except (i) as set forth in the Liquidation Agreement and (ii) as otherwise provided 

in this Section 4.5, the Leased Real Property is (A) subject to no Liens, other than Permitted Liens and (B) 

not subject to any statutory liens of landlords, carriers, warehousemen, mechanics, and materialmen, except 

as set forth in the applicable lease, ground lease, sublease, license, option or other agreement related to the 

Leased Real Property. 

(e) Sellers have delivered to or made available to Buyer via the “Project Jewel” virtual 

data room maintained by Intralinks Inc. 

(https://services.intralinks.com/web/index.html?#workspace/6333625/) true, accurate and complete copies 

of (i) each lease, ground lease or sublease, and each material license option or other agreement related to 

the Leased Real Property, (ii) all material easements, covenants, conditions, restrictions and other similar 

encumbrances on the Leased Real Property, and (iii) each material non-exclusive license related to the 

Leased Real Property. 

4.6 Litigation; Orders. Except for the Chapter 11 Cases and any adversary proceedings or 

contested motions commenced in connection therewith, or as set forth on Schedule 4.6, (a) there is no 

Claim, Proceeding or Order pending, outstanding or, to any Seller’s Knowledge, threatened against any 

Seller or any of their respective Affiliates (i) that would reasonably be expected to be material to the Jewel 

Business, the Employees, contractors of Sellers or the Acquired Assets or (ii) that seeks to restrain or 

prohibit or otherwise challenge the consummation, legality or validity of the transactions contemplated 

hereby and (b) as of the Agreement Date, there is no Proceeding by any Seller or any of their respective 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 33 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 67 of 105
#4839-7420-7369v7 25 

Affiliates pending, or which a Seller or any such Affiliate has commenced preparations to initiate, against 

any other Person relating to or affecting the Jewel Business or the Acquired Assets. 

4.7 Employment and ERISA Matters. 

(a) All Employees of Sellers and their Subsidiaries are “at will” employees. Sellers 

and their Subsidiaries have not employed or engaged any employee or independent contractor who cannot 

be dismissed whether currently or immediately after the transactions contemplated by this Agreement, 

without cause, without payment of severance or other compensation, and without further liability other than 

Claims addressed in Section 4.7(d). 

(b) No Employee is or within the past three (3) years has been covered by a collective 

bargaining or similar labor agreement with any union or employee organization representing or purporting 

to represent employees of Seller or any Subsidiary of any Seller. 

(c) Except as set forth on Schedule 4.7(c), in the three (3) years prior to the Closing 

(i) with respect to the Jewel Business, no Seller or any Subsidiary of any Seller has experienced any labor 

strike, work stoppage, slowdown, lockout, concerted refusal to work overtime or other similar labor 

disruption against any Seller or any Subsidiary of any Seller and, to the Knowledge of Sellers, none of the 

foregoing is currently pending or threatened; (ii) no Seller or any Subsidiary of any Seller has received 

written notice from any Governmental Entity of any charge, complaint or Proceeding pending or threatened 

before or by the National Labor Relations Board, the Equal Employment Opportunity Commission, or any 

other Governmental Entity in connection with the Jewel Business; (iii) to the Knowledge of Sellers, no 

union organizational campaign is pending or threatened with respect to any Employee; and (iv) to the 

Knowledge of Sellers, there have not been any activities or proceedings by any labor union to represent any 

Employee except, in the case of each of clauses (i)-(iv) that have not had and would not reasonably be 

expected to have, individually or in the aggregate, a Sellers Material Adverse Effect. 

(d) Except as set forth on Schedule 4.7(d), with respect to the Jewel Business, each 

Seller and each Subsidiary of each Seller is, and has been at all times since January 17, 2016, in compliance 

in all material respects with all applicable Laws pertaining to labor and employment, including Laws 

pertaining to terms and conditions of employment, collective bargaining, wages, hours of work, 

discrimination, retaliation, employee privacy, and occupational safety and health. Sellers and their 

Subsidiaries have paid and/or properly accrued all wages and other compensation due to all current and 

former employees and independent contractors including without limitation all overtime pay, 

vacations/PTO or vacation/PTO pay, holidays or holiday pay, sick days or sick pay, commissions, bonuses, 

and incentive compensation. All current and former employees of Sellers and their Subsidiaries who have 

been classified as exempt under the FLSA or any state wage and hour Laws have been properly classified 

and treated as such and properly compensated for all time worked in accordance with the FLSA and state 

wage and hour Laws. All individuals who have provided services to Sellers and their Subsidiaries as 

independent contractors have been properly classified as independent contractors, rather than as employees, 

for purposes of all applicable Laws and Employee Benefit Plans. All employees of Sellers and their 

Subsidiaries who work in the United States are legally authorized to work in the United States. 

(e) Neither Sellers nor their Subsidiaries is a party to, or otherwise bound by, any 

Order, consent decree with, or citation by, any Governmental Entity relating to employees or employment 

practices. Neither Sellers nor their Subsidiaries have received within the past three years any notice of intent 

by any government agency responsible for the enforcement of labor or employment laws to conduct an 

audit or investigation relating to any of them. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 34 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 68 of 105
#4839-7420-7369v7 26 

(f) No Seller, no Subsidiary of any Seller and no ERISA Affiliate contributes to or 

within the past six years has had an obligation to contribute to: (i) a plan subject to Title IV of ERISA or 

the minimum funding standards of Section 302 of ERISA or Section 412 of the Code; (ii) a Multiemployer 

Plan; (iii) a multiple employer plan (within the meaning of Section 4063 or 4064 of ERISA or Section 

413(c) of the Code); or (iv) a multiple employer welfare arrangement (within the meaning of Section 3(40) 

of ERISA), in each case that could result in any material Liability to Buyer. 

(g) Except as set forth on Schedule 4.7(g), neither the entry into this Agreement nor 

the consummation of the Transactions would be reasonably expected to: (i) result in the payment or 

provision to any Employee who is or becomes a Transferred Employee of any material payment or benefit 

in the nature of compensation from any Seller or any Subsidiary of any Seller, or any increase in any of the 

foregoing or (ii) accelerate the vesting or payment timing of any compensatory rights or benefits to any 

Employee who is or becomes a Transferred Employee. 

4.8 Environmental. Except as would not, individually or in the aggregate, be, or would 

reasonably be expected to be, material to the Acquired Assets taken as a whole: 

(a) None of the Real Property currently or formerly owned, leased or operated by or 

on behalf of any Seller (including soil and groundwater under such Real Property) (the “Properties”) that 

are part of the Jewel Business is the subject of any pending or, to the Knowledge of Sellers, threatened 

Proceeding by any Governmental Entity or any other Person regarding a release of any Hazardous 

Materials; 

(b) To the Knowledge of Sellers, Hazardous Materials have not been stored, used, or 

released by any Seller or in a quantity or manner at, from or on any Property or at any off-site location, 

which, individually or in the aggregate, would reasonably be expected to result in any Liability of any Seller 

with respect to the Acquired Assets to pay for or perform any remedial action; 

(c) Sellers, with respect to the Jewel Business, have not received any written notice 

from any Governmental Entity or any other Person regarding any pending or threatened Proceedings or 

other Liability regarding the release or disposal of Hazardous Materials or any actual or alleged violation 

of or other Liability under Environmental Laws; and 

(d) Sellers have delivered or made available to Buyer copies of all material 

environmental reports, audits, and assessments prepared by or for Sellers or their Affiliates that are in 

Sellers’ possession or reasonable control, as well as all material correspondence with Governmental Entities 

or other Persons relating to material environmental conditions or other material environmental matters at 

any Property or otherwise concerning the operation of the Jewel Business. 

Notwithstanding anything to the contrary contained in this Agreement, the representations and warranties 

in this Section 4.8 are the sole representations and warranties of Sellers relating to environmental matters 

or Environmental Laws. 

4.9 Taxes. 

(a) There are no material Liens on any of the Acquired Assets that arose in connection 

with, or are attributable to, any Seller’s failure to pay any Tax.

(b) Except as set forth on Schedule 4.9(b), there is no material dispute or claim 

concerning any Tax Liability of any Seller, with respect to the Jewel Business or the Acquired Assets, 

claimed, raised, or threatened by any Governmental Entity in writing. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 35 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 69 of 105
#4839-7420-7369v7 27 

(c) Except as set forth on Schedule 4.9(c), each Seller has timely filed all material 

U.S. federal, State and other Tax Returns that it was required to file under applicable Law with respect to 

the Jewel Business or the Acquired Assets, and (i) all such Tax Returns are true, correct, and complete in 

all material respects, and (ii) all material Taxes with respect to the Jewel Business or the Acquired Assets 

due (whether or not shown on such Tax Returns) have been fully and timely paid (other than any Taxes not 

due as of the date of the filing of the Chapter 11 Cases as to which subsequent payment was prohibited by 

reason of the Chapter 11 Cases and any Taxes that are the subject of a Permitted Lien). 

4.10 Compliance with Laws; Permits. The Jewel Business has been operated in compliance with 

all applicable Laws, and no Seller has received any written notice of any alleged material violation of 

applicable Law from any Governmental Entity or other Person Relating to the Jewel Business, in either 

case except as would not, individually or in the aggregate be, or would reasonably be expected to be, 

material to the Acquired Assets taken as a whole. Sellers hold all material Permits necessary or required 

pursuant to applicable Law for the operation of the Jewel Business as presently conducted and for the 

ownership, lease or operation of the Jewel Business and the construction of any material improvements 

currently under construction on the Leased Real Property. To Sellers’ Knowledge, (a) no Seller has received 

written notice of any material default under any Permit Relating to the Jewel Business and (b) no violations 

exist in respect of such Permits, except for such non-compliance and such facts, conditions or 

circumstances, the existence of which would not, individually or in the aggregate, be, or would reasonably 

be expected to be, material to the Acquired Assets taken as a whole. 

4.11 Contracts. Subject to receipt of the Necessary Consents and compliance with Section 6.10, 

(i) subject to the entry of the Sale Order, each of the Assumed Contracts is in full force and effect and 

constitutes a valid and binding obligation of the applicable Seller, and, to the Knowledge of Sellers, each 

other party thereto, and (ii) no Seller is in breach or default in any material respect under any of the Assumed 

Contracts and, to the Knowledge of Sellers, the other parties to such Contracts are not in breach or default 

in any material respect thereunder (and in each such case no event exists that with the passage of time or 

the giving of notice would constitute such material breach or default in any material respect, result in a loss 

of material rights, result in the payment of any damages or penalties or result in the creation of any Liens 

thereunder or pursuant thereto other than Permitted Liens). To Sellers’ Knowledge, none of the Assumed 

Contracts have been cancelled or otherwise terminated by Sellers or any counterparty thereto, and neither 

Sellers nor any counterparty has delivered any written notice to the other party to such Assumed Contract 

regarding any such cancellation or termination of an Assumed Contract. 

4.12 Insurance Claims. Schedule 4.12 contains a true, correct and complete list of all insurances 

policies as of the Agreement Date (including the names and insurers and policy numbers) that are owned 

by any Seller or name any Seller as an insured or loss payee and that are Relating to the Jewel Business and 

a description of all material pending claims under each of such insurance policies pertaining to the 

ownership and operation of the Jewel Business or the Acquired Assets. Sellers have within the past three 

(3) years reported all known material Claims or incidents to the respective insurers that have issued current 

and prior insurance policies insuring the Jewel Business to the extent that any such Claims or incidents 

would reasonably be expected to create a covered event under the terms and conditions of such policies and 

Sellers were required to report them pursuant to the terms of the policies. 

4.13 Intellectual Property. 

(a) Schedule 4.13(a) sets forth a true, correct and complete list of all material 

Intellectual Property that is, as of the Agreement Date, issued, registered, or subject to an application for 

registration that is Transferred Intellectual Property (the “Registered IP”).

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 36 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 70 of 105
#4839-7420-7369v7 28 

(b) Sellers own all Registered IP and all Transferred Intellectual Property free and 

clear of all Liens (other than Permitted Liens), and such Registered IP remains pending or in full force and 

effect and has not expired or been cancelled, in each case except as would not, individually or in the 

aggregate, be, or reasonably be expected to be, material to the Acquired Assets taken as a whole. 

(c) To the Knowledge of Sellers, (i) the Registered IP is valid and enforceable except 

as enforceability may be limited by applicable bankruptcy, insolvency or similar Laws affecting the 

enforcement of creditors’ rights generally or by equitable principles relating to enforceability and (ii) the 

past three (3) years of use and current use by Sellers of the Transferred Intellectual Property owned by or 

licensed to Sellers does not infringe or otherwise violate any Intellectual Property of any other Person 

except as would not, individually or in the aggregate, be, or reasonably be expected to be, material to the 

Acquired Assets taken as a whole. Except as provided for in Schedule 4.13(c), there is no Proceeding 

pending or, to the Knowledge of Sellers, threatened, alleging any such infringement or violation of any 

Seller’s rights in or to the Registered IP or other Transferred Intellectual Property owned by Sellers, except 

as would not, individually or in the aggregate, be, or reasonably be expected to be, material to the Acquired 

Assets taken as a whole. Except as provided for in Schedule 4.13(c), to the Knowledge of Sellers, no Person 

is infringing or otherwise violating the Registered IP or other Transferred Intellectual Property owned by 

Sellers. 

4.14 Anti-Corruption and Sanctions. 

(a) Each Seller and each of such Seller’s Subsidiaries, and, to the Knowledge of 

Sellers, all of their respective directors, officers, agents or employees, has been for the past five (5) years 

and currently is in compliance in all material respects with, Anti-Corruption Laws and Sanctions, 

Anti-Money Laundering Laws and Export Control and Customs Laws. 

(b) None of Sellers or any of their Subsidiaries, or, to the Knowledge of Sellers, any 

directors, officers, agents or employees or Affiliates of Sellers or any of their Subsidiaries, or any other 

Person acting on their behalf has, (i) directly or indirectly, engaged in any Anti-Corruption Prohibited 

Activity, (ii) directly or indirectly engaged in any transaction or other business with a Restricted Party in 

violation of applicable Sanctions, or (iii) been or is the subject of any investigation by any Governmental 

Entity concerning compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, Export Control 

and Customs Laws, or Sanctions. None of Sellers or any of their Subsidiaries, nor to the Knowledge of 

Sellers any of their respective officers, directors, employees, Affiliates or agents acting on their behalf, is a 

Restricted Party. 

4.15 Data Privacy. In connection with its collection, storage, transfer (including transfer across 

national borders) and/or use of any personally identifiable information from any individuals, including any 

customers, prospective customers, employees and/or other third parties (collectively “Personal 

Information”), to the Knowledge of Sellers, each Seller is and, during the last four (4) years, has been in 

compliance with all applicable Laws in all relevant jurisdictions except as would not, individually or in the 

aggregate, be, or would reasonably be expected to be, material to the Acquired Assets taken as a whole and 

has obtained all necessary rights from the individuals and other third parties and complied in all material 

respects with all other requirements under applicable Laws to enable the use of such Personal Information 

for the purposes of the Jewel Business (as is customary in the retail and e-commerce industries) following 

Closing. Each Seller has commercially reasonable physical, technical, organizational and administrative 

security measures in place to protect all Personal Information collected by it or on its behalf from and 

against unauthorized access, use and/or disclosure in accordance with applicable Laws and to the 

Knowledge of the Sellers there have been no security incidents which have resulted in the accidental or 

unlawful destruction, loss, alteration or unauthorized disclosure of or access to Personal Information during 

the last four (4) years. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 37 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 71 of 105
#4839-7420-7369v7 29 

4.16 Sufficiency. Except as set forth on Schedule 4.16, the Acquired Assets constitute all of the 

material assets, properties, rights and interests sufficient for the operation of the Jewel Business in 

substantially the same manner as operated as of the Agreement Date. As of the date hereof, Sellers do not 

own, hold or have any interest in the Jewel Inventory. 

4.17 Exclusive Representations and Warranties. Except for the representations and warranties 

contained in this Article 4 (as modified by the Disclosure Schedules) and the other Transaction Documents, 

none of Sellers nor their respective Affiliates, nor any of their respective Representatives, makes or has 

made any other representation or warranty on behalf of Sellers or otherwise in respect of Sellers or the 

Jewel Business. Except for the representations and warranties contained in this Article 4 (as modified by 

the Disclosure Schedules) and the other Transaction Documents, each Seller (a) expressly disclaims and 

negates any representation or warranty, expressed or implied, at common law, by statute, or otherwise, 

relating to the condition of the Acquired Assets (including any implied or expressed warranty of 

merchantability or fitness for a particular purpose, or of conformity to models or samples of materials) and 

(b) disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement, 

or information made, communicated, or furnished (orally or in writing) to Buyer or its Affiliates or 

Representatives (including any opinion, information, projection, or advice that may have been or may be 

provided to Buyer by any Representative of Sellers or any of their respective Affiliates). Sellers make no 

representations or warranties to Buyer regarding the probable success or profitability of the Jewel Business. 

The disclosure of any matter or item in any schedule hereto will not be deemed to constitute an 

acknowledgment that any such matter is required to be disclosed or is material or that such matter would 

result in a Sellers Material Adverse Effect. 

ARTICLE 5 

REPRESENTATIONS AND WARRANTIES OF BUYER 

Buyer hereby represent and warrant to Sellers, as of the Agreement Date, except as set forth on the 

Disclosure Schedules, as follows: 

5.1 Organization. Buyer is duly organized, validly existing and in good standing under the 

Laws of the jurisdiction of its organization. Buyer has all necessary corporate power and authority to own 

and operate its properties, to lease the property it operates under lease and to conduct its business. 

5.2 Due Authorization, Execution and Delivery; Enforceability. Buyer has all requisite 

corporate power and authority to execute and deliver this Agreement and the other Transaction Documents 

to which it is (or will become at Closing) a party and to perform its obligations hereunder and thereunder. 

The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents 

to which it is (or will become at Closing) a party and the consummation of the Transactions have been duly 

and validly authorized by all requisite corporate action on the part of Buyer and no other corporate action 

on the part of Buyer is necessary to authorize this Agreement and such other Transaction Documents and 

to consummate the Transactions (subject, in the case of the obligation to consummate the Transactions, to 

the entry of the Sale Order). This Agreement and the other Transaction Documents to which Buyer is (or 

will become at Closing) party have been (or will be) duly and validly executed and delivered by Buyer and 

(assuming the due authorization, execution and delivery by all parties hereto and thereto, other than Buyer) 

constitute (or will constitute) valid and binding obligations of Buyer enforceable against Buyer in 

accordance with their terms (subject to the entry of the Bidding Procedures Order and, in the case of the 

obligation to consummate the Transactions, to the entry of the Sale Order), in each case except as 

enforceability may be limited by applicable bankruptcy, insolvency or similar Laws affecting the 

enforcement of creditors’ rights generally or by equitable principles relating to enforceability.

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 38 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 72 of 105
#4839-7420-7369v7 30 

5.3 Governmental Approvals. No notice to, consent, approval or authorization of or 

designation, declaration or filing with any Governmental Entity is required by Buyer with respect to Buyer’s 

execution and delivery of any Transaction Document to which it is (or will become at Closing) a party or 

the consummation of the Transactions, except (a) as may be required under the HSR Act, (b) the Sale Order 

having been entered by the Bankruptcy Court, and (c) any consent, approval or authorization of or 

designation, declaration or filing with any Governmental Entity the failure of which to be made or obtained 

would not, individually or in the aggregate, be reasonably expected to result in a Buyer Material Adverse 

Effect. 

5.4 No Conflicts. The execution, delivery and performance by Buyer of any Transaction 

Document to which Buyer is (or will become at Closing) a party and the consummation of the Transactions, 

does not and will not (a) conflict with or result in any breach of any provision of its certificate of 

incorporation or bylaws or comparable governing documents, (b) conflict with or result in the breach of the 

terms, conditions or provisions of or constitute a default (or an event which with notice or lapse of time or 

both would become a default) under, or give rise to any right of termination, acceleration or cancellation 

under, any material Contract of Buyer, or (c) result in a violation of any Law or Order applicable to it, 

except, in the case of clauses (b) and (c), as would not, individually or in the aggregate, result in a Buyer 

Material Adverse Effect. 

5.5 Availability of Funds and Financial Capability. To the extent that any portion of the 

Purchase Price is payable in cash, Buyer, as of the Closing, will have sufficient funds available to it to pay 

the cash portion of the Purchase Price on the Closing Date and to enable Buyer to perform all of its 

obligations under this Agreement. Immediately after giving effect to the consummation of the Transactions: 

(a) the fair saleable value (determined on a going concern basis) of the assets of Buyer will be greater than 

the total amount of its Liabilities; (b) Buyer will be solvent and able to pay its respective debts and 

obligations in the Ordinary Course of Business as they become due; (c) no transfer of property is being 

made and no obligation is being incurred in connection with the Transactions with the intent to hinder, 

delay or defraud either present or future creditors of Buyer in connection with the Transactions; (d) Buyer 

has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured; 

and (e) Buyer will have adequate capital to carry on the Jewel Business and all businesses in which it is 

about to engage. 

5.6 Adequate Assurances Regarding Executory Contracts. Buyer (or such of Buyer’s Affiliates 

which will be assuming any Assumed Contract in connection with the assumption and assignment of the 

Assumed Contracts by the Sellers) is and will be capable of providing adequate assurance of future 

performance of such Assumed Contract as required by the provisions of the Bankruptcy Code. 

5.7 Condition and Location of Acquired Assets. Except as otherwise expressly set forth in this 

Agreement, Buyer understands and agrees that the Acquired Assets are furnished “as is”, “where is” and, 

subject only to the representations and warranties contained in Article 4, with all faults, limitations and 

defects (hidden and apparent) and, subject to the representations and warranties contained in Article 4, 

without any other representation or warranty of any nature whatsoever and without any guarantee or 

warranty (whether express or implied) as to their title, quality, merchantability or their fitness for Buyer’s 

intended use or a particular purpose or any use or purpose whatsoever. 

5.8 Exclusive Representations and Warranties. Except for the representations and warranties 

contained in this Article 5 (as modified by the Disclosure Schedules), none of Buyer, its Affiliates, nor any 

of their respective Representatives, makes or has made any other representation or warranty on behalf of 

Buyer. Except for the representations and warranties contained in this Article 5 (as modified by the 

Disclosure Schedules), Buyer disclaims all liability and responsibility for any representation, warranty, 

projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 39 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 73 of 105
#4839-7420-7369v7 31 

Sellers or their respective Affiliates or Representatives (including any opinion, information, projection, or 

advice that may have been or may be provided to Sellers by any Representative of Buyer or any of their 

respective Affiliates). The disclosure of any matter or item in any schedule hereto will not be deemed to 

constitute an acknowledgment that any such matter is required to be disclosed or is material or that such 

matter would result in a Buyer Material Adverse Effect. 

5.9 No Other Representations or Warranties of Sellers; Disclaimers. 

(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN 

THIS AGREEMENT, EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS 

AGREEMENT AND IN THE TRANSACTION DOCUMENTS, BUYER ACKNOWLEDGES AND 

AFFIRMS THAT SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, 

AND DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, 

WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN 

WRITING) TO BUYER (INCLUDING ANY OPINION, INFORMATION, OR ADVICE THAT MAY 

HAVE BEEN PROVIDED TO BUYER BY ANY RESPECTIVE AFFILIATE OR REPRESENTATIVE 

OF SELLERS OR BY ANY INVESTMENT BANK OR INVESTMENT BANKING FIRM, SELLERS’ 

COUNSEL, OR ANY OTHER AGENT, CONSULTANT, OR REPRESENTATIVE OF SELLERS). 

OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION DOCUMENTS, 

BUYER FURTHER ACKNOWLEDGES AND AFFIRMS THAT SELLERS MAKE NO 

REPRESENTATION, COVENANT OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE 

ACCURACY OR COMPLETENESS OF ANY FILES, RECORDS OR DATA HERETOFORE OR 

HEREAFTER FURNISHED IN CONNECTION WITH THE ACQUIRED ASSETS (INCLUDING 

WITHOUT LIMITATION IN ANY CONFIDENTIAL INFORMATION STATEMENT OR 

MEMORANDUM, MANAGEMENT PRESENTATION, OR DOCUMENT MADE AVAILABLE IN A 

DATAROOM). OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION 

DOCUMENTS, ANY AND ALL SUCH FILES, RECORDS AND DATA FURNISHED BY SELLERS 

ARE PROVIDED AS A CONVENIENCE, AND ANY RELIANCE ON OR USE OF THE SAME SHALL 

BE AT BUYER’S SOLE RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 

EXCEPT AS SET FORTH IN THE TRANSACTION DOCUMENTS, BUYER FURTHER 

ACKNOWLEDGES AND AFFIRMS THAT SELLERS EXPRESSLY DISCLAIM ANY 

REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE, 

OR OTHERWISE, RELATING TO (A) THE TITLE TO ANY OF THE ACQUIRED ASSETS, (B) THE 

CONDITION OF THE ACQUIRED ASSETS (INCLUDING ANY IMPLIED OR EXPRESS 

WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR 

CONFORMITY TO MODELS OR SAMPLES OF MATERIALS), IT BEING UNDERSTOOD THAT, 

OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION DOCUMENTS, THE 

ASSETS ARE BEING SOLD “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS AS TO ALL 

MATTERS,” (C) FREEDOM FROM HIDDEN OR REDHIBITORY DEFECTS OR VICES, (D) ANY 

INFRINGEMENT BY SELLERS OF ANY PATENT OR PROPRIETARY RIGHT OF ANY THIRD 

PARTY, AND (E) ANY INFORMATION, DATA, OR OTHER MATERIALS. 

(b) Buyer acknowledges and affirms that it has made its own independent 

investigation, analysis, and evaluation of the transactions contemplated hereby and the Acquired Assets 

(including Buyer’s own estimate and appraisal of the extent and value of the Acquired Assets). Buyer 

acknowledges that in entering into this Agreement, it has relied on the aforementioned investigation. Buyer 

hereby irrevocably covenants to refrain from, directly or indirectly, asserting any claim, or commencing, 

instituting, or causing to be commenced, any Proceeding of any kind against Sellers or any of their 

respective Affiliates or Subsidiaries, alleging facts contrary to the foregoing acknowledgment and 

affirmation. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 40 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 74 of 105
#4839-7420-7369v7 32 

ARTICLE 6 

COVENANTS OF THE PARTIES 

6.1 Conduct of Jewel Business Pending the Closing. During the period from the date of this 

Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms 

and the Closing (the “Interim Period”), except (x) as may be required by Order of the Bankruptcy Court 

(provided that no Seller directly or indirectly petitioned, sought, requested or moved for such order of the 

Bankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move 

for such Order of the Bankruptcy Court), (y) as contemplated in the Liquidation Agreement, or (z) as 

contemplated by the Approved Budget, Sellers shall carry on the Jewel Business in the Ordinary Course of 

Business and, to the extent consistent therewith, use commercially reasonable efforts to preserve the Jewel 

Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, 

suppliers, employees and others having business dealings with the Jewel Business. Notwithstanding the 

first sentence of this Section 6.1, during the Interim Period, except (I) as contemplated in the Liquidation 

Agreement or (II) as contemplated by the Approved Budget, Sellers shall not, and shall cause their 

Affiliates not to, directly or indirectly, without the prior written consent of Buyer: 

(a) modify, amend, terminate, waive any material rights or obligations under or 

otherwise seek to reject any Assumed Contract, other than amendments of the Assumed Contracts in the 

Ordinary Course of Business that are not material to the Jewel Business; 

(b) lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise 

dispose of any interest in any Acquired Assets other than (i) Acquired Assets that are not material to the 

Jewel Business in the Ordinary Course of Business, (ii) pursuant to an Order of the Bankruptcy Court 

(provided that no Seller directly or indirectly petitioned, sought, requested or moved for such order of the 

Bankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move 

for such Order of the Bankruptcy Court), and (iii) abandoning or permitting to lapse Registered IP that is 

not material to the Jewel Business or otherwise in the Ordinary Course of Business; 

(c) mortgage, pledge or subject to Liens (other than Permitted Liens) any of the 

material Acquired Assets or any part thereof; 

(d) except as required by any Benefit Plan or as required by applicable Law, 

(i) increase the compensation in any material respect of any Employee who is or becomes a Transferred 

Employee or (ii) accelerate the vesting or payment of the compensation payable to any Employee who is 

or becomes a Transferred Employee; 

(e) institute, settle, compromise or agree to settle any (i) material Proceeding (other 

than the Chapter 11 Cases) before any Governmental Entity relating to the Acquired Assets or the Jewel 

Business or (ii) any pending or threatened Claim that could give rise to Liabilities that are not Assumed 

Liabilities, or modify in any manner that is adverse to the Jewel Business or the Acquired Assets, rescind, 

reject or terminate a Transferable Permit (or application therefor) relating to the Acquired Assets; 

(f) with respect to any Acquired Asset, (i) make, change or revoke any material Tax 

election, (ii) change any annual Tax accounting period, (iii) enter into any agreement with respect to 

material Taxes or apply for any Tax ruling, (iv) file any amended Tax Return, (v) settle or compromise any 

Tax Liability or Claim for a Tax refund, (vi) surrender any right to Claim a refund for Taxes, (vii) incur 

any material Tax Liability outside of the Ordinary Course of Business, (viii) consent to an extension of the 

statute of limitations applicable to any Tax Claim or assessment (other than pursuant to extensions of time 

to file Tax Returns obtained in the Ordinary Course of Business) or (ix) change (or request any 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 41 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 75 of 105
#4839-7420-7369v7 33 

Governmental Entity to change) any material aspect of its method of accounting for Tax purposes, in each 

case, except as required by applicable Law; or 

(g) enter into any Contract to do any of the foregoing. 

Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or 

indirectly, the right to control or direct the business of Sellers prior to the Closing. 

6.2 Back-Up Bidder. If an Auction is conducted, and Buyer is not the Successful Bidder for 

the Acquired Assets, Buyer shall, in accordance with and subject to the Bidding Procedures, be required to 

serve as the back-up bidder if Buyer is the next highest or otherwise best bidder for the Acquired Assets at 

the Auction (the party that is the next highest or otherwise best bidder at the Auction after the Successful 

Bidder, the “Back-Up Bidder”) and, if Buyer is the Back-Up Bidder, Buyer shall, notwithstanding 

Section 8.1(b)(ii), be required to keep its bid to consummate the Transactions on the terms and conditions 

set forth in this Agreement (as the same may be improved upon by Buyer in the Auction) open and 

irrevocable until the Outside Back-Up Date. Following the Auction, if the Successful Bidder fails to 

consummate the applicable Alternative Transaction as a result of a breach or failure to perform on the part 

of such Successful Bidder, then Buyer, if Buyer is the Back-Up Bidder, will be deemed to have the 

new prevailing bid, and Sellers may seek authority to consummate the Transactions on the terms and 

conditions set forth in this Agreement (as the same may be improved upon by Buyer in the Auction) with 

the Back-Up Bidder. 

6.3 Access. Subject to applicable Law, during the Interim Period, Sellers (a) shall give Buyer 

and its Representatives reasonable access during normal business hours to the offices, properties, officers, 

employees, accountants, auditors, counsel and other representatives, books and records of Sellers in each 

case to the extent relating to the Jewel Business, as Buyer reasonably deems necessary in connection with 

effectuating the transactions contemplated by this Agreement (b) shall furnish to Buyer and its 

Representatives such financial, operating and property data to the extent relating to the Jewel Business and 

other information as Buyer and its Representatives reasonably request and (c) shall cooperate reasonably 

with Buyer in its investigation of the Jewel Business. It is acknowledged and understood that no 

investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect 

any representation, warranty or other agreement given or made by Sellers hereunder. Buyer agrees that any 

on-site inspections of any of the Leased Real Property shall be conducted in the presence of Sellers or their 

Representatives. All inspections shall be conducted so as not to interfere unreasonably with the use of any 

of the Leased Real Property by Sellers. Notwithstanding the foregoing, Buyer shall not (i) have, by virtue 

of this Section 6.3, any additional access or investigation right to the extent it relates to the negotiation of 

this Agreement or the Transactions or (ii) conduct or cause to be conducted any sampling, testing, or 

subsurface or otherwise invasive investigation of the air, soil, surface water, groundwater, building 

materials or other environmental media (commonly known as a Phase II environmental assessment) at any 

property of Sellers, including any Leased Real Property. Buyer agrees to indemnify and hold Sellers and 

their Affiliates and their respective Representatives harmless of and from all actions, Claims, investigations, 

deficiencies, costs and expenses (including attorneys’ fees and expenses) that arise out of or relate to 

physical injuries arising from Buyer’s inspection of the Acquired Assets (other than to the extent any of the 

foregoing results from the willful misconduct of the Person seeking such indemnification), and 

notwithstanding anything to the contrary in this Agreement, such obligation to indemnify shall survive 

Closing or any termination of this Agreement. 

6.4 Public Announcements. Buyer and Sellers will consult with each other before issuing, and 

provide each other the opportunity to review and comment upon, any press release or public announcement 

of this Agreement and the Transactions, and neither Buyer nor any Seller shall issue any such press release 

or public announcement without the prior approval of the other Party, in each case except as may be required 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 42 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 76 of 105
#4839-7420-7369v7 34 

by Law, court process (including the filing of this Agreement with the Bankruptcy Court as an exhibit to 

the Sale Motion) or by obligations pursuant to any listing agreement with any national securities exchange. 

Buyer and each Seller shall cause its Affiliates and Representatives to comply with this Section 6.4. 

6.5 Tax Matters. 

(a) All Transfer Taxes arising out of the transfer of the Acquired Assets pursuant to 

this Agreement shall be borne by Buyer. Sellers and Buyer shall cooperate to timely prepare and file any 

Tax Returns relating to such Transfer Taxes, including any Claim for exemption or exclusion from the 

application or imposition of any Transfer Taxes. Buyer or Sellers, as applicable, shall file all necessary 

documentation and returns with respect to such Transfer Taxes when due, and shall promptly, following 

the filing thereof, furnish a copy of such return or other filing and a copy of a receipt showing payment of 

any such Transfer Tax to the other Parties hereto. Buyer shall pay all such Transfer Taxes when due. 

Notwithstanding the foregoing, Sellers shall be reimbursed by Buyer with respect to any such Transfer 

Taxes paid by Sellers. 

(b) Each of Buyer, on the one hand, and Sellers, on the other hand, shall furnish or 

cause to be furnished to the other, upon request, as promptly as practicable, such information and assistance 

relating to the Acquired Assets and the Jewel Business as is reasonably necessary for filing of all Tax 

Returns, including any Claim for exemption or exclusion from the application or imposition of any Taxes, 

the preparation for any audit by any Tax Authority and the prosecution or defense of any Proceeding relating 

to any Tax Return. 

(c) Buyer and Sellers will use their commercially reasonable efforts to minimize any 

Transfer Taxes payable in connection with the transfer of the Acquired Assets pursuant to this Agreement, 

including the transfer via electronic transmission of all assets capable of being so transmitted. 

6.6 Approvals; Reasonable Best Efforts; Notification; Consent. 

(a) Subject to the terms and conditions of this Agreement, each Party shall use its 

reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist 

and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable 

Law to consummate and make effective the Transactions. Without limiting the generality of the foregoing, 

the Parties will, at Buyer’s sole cost and expense, use their respective reasonable best efforts to (i) prepare 

and file as soon as practicable all forms, registrations and notices relating to the consents of Governmental 

Entities that are required by applicable Law to be filed in order to consummate Transactions that are 

material to the Jewel Business or to Buyer and its Affiliates (with respect to any filing required under the 

HSR Act, within five (5) Business Days following the Agreement Date, and with respect to any other such 

filing, as soon as reasonably possible), and take such actions as are reasonably necessary to obtain any 

consents from, or to avoid any action or proceeding by, any Governmental Entity relating to such approvals, 

including any Notification and Report Forms in connection with the HSR Act or approvals required under 

Environmental Law, including notifications and approvals necessary to transfer Permits, licenses and other 

authorizations required under Environmental Law (to the extent such Permits, licenses and other 

authorizations are transferable), (ii) take all actions necessary to transfer the Acquired Assets, (iii) take all 

actions necessary to cause all conditions set forth in Article 7 to be satisfied as soon as practicable (iv) lift 

or rescind any existing Order preventing, prohibiting or delaying the consummation of the Transactions, 

(v) effect all necessary registration, applications, notices and other filings required by applicable Law, 

including, as applicable to Sellers, under the Bankruptcy Code, and (vi) execute and deliver any additional 

instruments necessary to fully carry out the purposes of this Agreement; provided, however, that that 

nothing in this Agreement, including this Section 6.6 shall require Buyer to (A) consent to any material 

condition or material concession required by any Governmental Entity or third party; (B) consent to any 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 43 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 77 of 105
#4839-7420-7369v7 35 

divestitures of any material subsidiary or material assets of Buyer or its Affiliates, or of the Jewel Business 

or the Acquired Assets or accept any material limitation on or material condition on the manner in which 

any of the foregoing conducts their business; (C) pay any material amounts required or requested by any 

Governmental Entity; or (D) accept an agreement to hold separate any material portion of any business or 

of any material assets of any material subsidiary of Buyer or its Affiliates, or of the Jewel Business or the 

Acquired Assets. Buyer and Sellers shall not, and shall cause their respective Affiliates not to, take any 

action that would reasonably be expected to prevent or materially delay the approval of any Governmental 

Entity of any of the filings referred to in this Section 6.6(a). 

(b) Each Party shall (i) respond as promptly as reasonably practicable to any inquiries 

or requests for additional information and documentary material received from any Governmental Entity 

relating to the matters described in Section 6.6(a), (ii) not extend any waiting period or agree to refile under 

the HSR Act (except with the prior written consent of the other Parties hereto, which consent shall not be 

unreasonably withheld, conditioned or delayed) and (iii) not enter into any agreement with the any 

Governmental Entity agreeing not to consummate the Transactions. 

(c) In connection with and without limiting the foregoing, each Party shall, subject to 

applicable Law and except as prohibited by any applicable representative of any applicable Governmental 

Entity: (i) promptly notify the other Parties of any material written communication to that Party from any 

Governmental Entity concerning this Agreement or the Transactions, and permit the other Parties to review 

in advance (and to consider any comments made by the other Parties in relation to) any proposed written 

communication to any of the foregoing; (ii) not participate in or agree to participate in any substantive 

meeting, telephone call or discussion with any Governmental Entity in respect of any filings, investigation 

or inquiry concerning this Agreement or the Transactions unless it consults with the other Parties in advance 

and, to the extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend 

and participate in such meeting, telephone call or discussion; and (iii) subject to the attorney-client and 

similar applicable privileges, furnish outside legal counsel for the other Parties with copies of all 

correspondence, filings, and written communications (and memoranda setting forth the substance thereof) 

between such Party and its Affiliates and their respective Representatives, on the one hand, and any 

Governmental Entity or its members or their respective staffs, on the other hand, with respect to this 

Agreement and the Transactions; provided, however, that any such Party may limit the disclosure of filings 

to protect confidential information, including limiting dissemination of filings to an “outside counsel only” 

basis. 

6.7 Employee Matters. 

(a) Employee Offer List. No later than ten (10) Business Days following the 

Agreement Date, Sellers shall deliver to Buyer Schedule 6.7(a)(i), setting forth a list of each Employee and 

contractor, together with each Employee’s employing entity, work location (city, state/province, country), 

job title, base compensation (including salary or hourly rate, as applicable), active/leave status, credited 

service date, treatment by Sellers and their respective Subsidiaries of any United States employee as exempt 

or non-exempt, and whether or not subject to an agreement providing for anything other than “at will” 

employment (the “Employee List”). Not less than ten (10) days prior the anticipated Closing, Buyer shall 

make available to Sellers Schedule 6.7(a)(ii), setting forth a list of each Person on the Employee List to 

whom Buyer has determined to make an offer of employment in connection with the Closing (the 

“Employee Offer List”).

(b) Transferred Employees. Unless an earlier offer is otherwise required by applicable 

Law, approximately ten (10) days prior to the anticipated Closing, Buyer may, or may cause one of its 

Subsidiaries to, make an offer of employment, on such terms and conditions as Buyer may determine in its 

sole discretion to each Person on the Employee Offer List who then remains employed by any Seller or any 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 44 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 78 of 105
#4839-7420-7369v7 36 

Subsidiary of any Seller (each, an “Employment Offer”). Each Person who accepts an Employment Offer 

(or any other offer of employment from Buyer or one of its Subsidiaries) and who commences or continues 

employment with Buyer or its Subsidiaries effective following the Closing (whether or not such offer is 

first made following the Closing Date and/or such employment commences following the Closing Date) 

shall be deemed a “Transferred Employee” for purposes of this Agreement.

(c) COBRA and HIPAA. Effective after the Closing, Buyer will, or will cause one of 

its Affiliates to, be responsible for all Liabilities arising after the Closing with respect to Transferred 

Employees and their eligible dependents in respect of health insurance under the Consolidated Omnibus 

Budget Reconciliation Act of 1985, as amended, the Health Insurance Portability and Accountability Act 

of 1996, Sections 601, et seq. and Sections 701, et seq. of ERISA, Section 4980B and Sections 9801, et 

seq. of the Code and applicable state or similar Laws. 

(d) No Rights. Nothing in this Section 6.7, express or implied, shall (i) create any third 

party beneficiary right in any Person (other than the Parties), including any Employee, any other current or 

former employee or service provider of any Seller or any Subsidiary of any one or more Sellers, any 

participant in any Benefit Plan, or any dependent or beneficiary thereof, or any right to continued 

employment or service with any Seller, Buyer or any of their respective Subsidiaries or Affiliates; (ii) be 

deemed to constitute an amendment to any Benefit Plan or any other compensation or benefit plan, program, 

policy, agreement or arrangement, or to guarantee or require the employment or service of any Person for 

any length of time, or with any particular level of any element of compensation or benefit, except as may 

be required under applicable Law; or (iii) be interpreted to prevent or restrict Buyer or any of its Affiliates 

from modifying or terminating the employment or terms of employment of any Transferred Employee, 

including the amendment or termination of any employee benefit or compensation plan, program or 

arrangement, after the Closing Date. Except as specifically set forth in this Agreement: (X) Buyer shall not 

be obligated to assume, continue or maintain any Benefit Plans; (Y) no assets or liabilities of the Benefits 

Plans shall be transferred to, or assumed by, Buyer or Buyer’s benefit plans; (Z) Sellers and their 

Subsidiaries shall be solely responsible for funding and/or paying any benefits under any of the Benefit 

Plans, including any termination benefits and other employee entitlements accrued under such plans by or 

attributable to employees of any of the Sellers and their Subsidiaries. 

(e) Cooperation. Buyer and Sellers shall, and shall cause their respective Subsidiaries 

to, reasonably cooperate with each other (including sharing documentation and providing assistance) in 

connection with the transition of the Transferred Employees pursuant to, and the compliance with, the 

requirements of this Section 6.7. Sellers shall permit, and cause their respective Subsidiaries to permit, 

Buyer to contact and make arrangements with such Seller’s or Subsidiary’s employees regarding 

employment or prospective employment by Buyer after the Closing and for the purpose of ensuring the 

continuity of the Jewel Business, and each Seller agrees not to discourage, and to cause their Subsidiaries 

not to discourage, any such employees from consulting with Buyer. The Sellers shall, and shall cause their 

respective Subsidiaries to, make available to Buyer such personnel and similar information as Buyer may 

request with respect to any Transferred Employee, including compensation and employment records. 

(f) WARN Act. On the Closing Date, Sellers shall provide to Buyer Schedule 6.7(f), 

setting forth a list, by date and location, of all employee terminations or layoffs (whether individually or as 

a group) implemented by any Seller or any Subsidiary of any Seller during the ninety (90) day period 

preceding the Closing. From and after the Closing, Buyer will, and will cause its Affiliates to, provide any 

required notice under the WARN Act and otherwise comply with the WARN Act with respect to any “plant 

closing” or “mass layoff” (as defined in the WARN Act) or group termination or similar event affecting 

any Transferred Employee. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 45 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 79 of 105
#4839-7420-7369v7 37 

6.8 Further Assurances. The Parties agree to (a) furnish upon request to each other such further 

information, (b) execute, acknowledge and deliver to each other such other documents and (c) do such other 

acts and things, all as the other Party may reasonably request for the purpose of carrying out the intent of 

this Agreement and the Transaction Documents; provided that nothing in this Section 6.8 or this Agreement 

shall prohibit Sellers from ceasing operations or winding up their affairs following the Closing. 

6.9 Bankruptcy Court Filings. 

(a) Promptly upon the selection of Buyer as the Successful Bidder, Sellers shall 

execute this Agreement and shall pursue the entry of the Sale Order. Sellers shall use commercially 

reasonable efforts to comply (or obtain an Order from the Bankruptcy Court waiving compliance) with all 

requirements under the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules and the Local 

Bankruptcy Rules in connection with obtaining approval of the Sale Order. Sellers shall consult with Buyer 

and its Representatives concerning the Sale Order, any other Orders of the Bankruptcy Court relating to the 

Transactions, and the bankruptcy proceedings in connection therewith, and use commercially reasonable 

efforts to provide Buyer with copies of applications, pleadings, notices, proposed Orders and other 

documents relating to such proceedings as soon as reasonably practicable prior to filing. In furtherance of 

the foregoing, Sellers shall provide Buyer with a reasonable opportunity to review and comment on all 

material motions to be filed in the Chapter 11 Cases that relate to the Transactions, to the extent practicable, 

prior to their filing with the Bankruptcy Court. 

(b) Buyer agrees that it will promptly take such actions as are reasonably requested by 

Sellers to assist in obtaining entry of Sale Order and a finding of adequate assurance of future performance 

by Buyer or Designated Purchaser, as applicable, under the Assumed Contracts, including furnishing 

affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among 

others, of providing necessary assurances of performance by Buyer under this Agreement and 

demonstrating that Buyer is a “good faith” purchaser under section 363(m) of the Bankruptcy Code; 

provided, however, in no event shall Buyer or Sellers be required to agree to any amendment of this 

Agreement. 

(c) Sellers further covenant and agree that, after the execution of this Agreement by 

the Sellers, the terms of any reorganization or liquidation plan submitted to the Bankruptcy Court by either 

or both of them, or any other court for confirmation or sanction, shall not be intended to (or reasonably 

likely to) supersede, abrogate, nullify or restrict the terms of this Agreement in any material respect, or 

prevent the consummation or performance of the Transactions, in each case except as expressly permitted 

pursuant to Section 6.2 or the Bidding Procedures. 

6.10 Cure Costs. On the Closing Date, Sellers shall transfer and assign the Assumed Contracts 

to Buyer or Designated Purchaser, as applicable, pursuant to Section 365 of the Bankruptcy Code and the 

Sale Order. Buyer or Designated Purchaser, as applicable, shall assume all Assumed Contracts from Sellers, 

as of the Closing Date pursuant to the Sale Order. In connection with the assumption and assignment of 

the Assumed Contracts, Buyer or Designated Purchaser, as applicable, shall cure any monetary defaults 

under the Assumed Contracts by payment of any Cure Costs (or create reserves therefor) as determined in 

accordance with the Bidding Procedures Order. Buyer or Designated Purchaser, as applicable, shall be 

responsible for demonstrating and establishing adequate assurance of future performance before the 

Bankruptcy Court with respect to the Assumed Contracts. 

6.11 Preservation of Books and Records. After the Closing Date, Buyer shall provide to Sellers 

and their respective Affiliates and Representatives (after reasonable notice and during normal business 

hours and without charge to Sellers other than the costs of copying, if any) reasonable access to, including 

the right to make copies of, all books and records included in and otherwise related to the Acquired Assets, 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 46 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 80 of 105
#4839-7420-7369v7 38 

to the extent necessary to permit Sellers to determine any matter relating to its rights and obligations 

hereunder or to any period ending on or before the Closing Date (for example, for purposes of any Tax or 

accounting audit or any claim or litigation matter, but not for any dispute or claim between Buyer and Seller 

in connection with this Agreement, the Transaction Documents or otherwise), for periods prior to the 

Closing and shall preserve such books and records until the later of (i) such period as shall be consistent 

with Buyer’s records retention policy in effect from time to time, (ii) the retention period required by 

applicable Law, (iii) the conclusion of all bankruptcy proceedings relating to the Chapter 11 Cases or (iv) in 

the case of books and records relating to Taxes, the expiration of the statute of limitations applicable to 

such Taxes. Such access shall include access to any information in electronic form to the extent reasonably 

available. Buyer acknowledges that Sellers have the right to retain originals or copies of all of books and 

records included in or related to the Acquired Assets for periods prior to the Closing. 

6.12 Bulk Transfer Laws. The Parties intend that pursuant to Section 363(f) of the Bankruptcy 

Code, the transfer of the Acquired Assets shall be free and clear of any security interests in the Acquired 

Assets, including any liens or claims arising out of the bulk transfer laws, and the parties shall take such 

steps as may be necessary or appropriate to so provide in the Sale Order. In furtherance of the foregoing, 

each Party hereby waives compliance by the Parties with the “bulk sales,” “bulk transfers” or similar Laws 

and all other similar Laws in all applicable jurisdictions in respect of the transactions contemplated by this 

Agreement. 

6.13 Overhead and Shared Services; Transition Services. 

(a) Except as set forth in the Transition Services Agreement, Buyer acknowledges and 

agrees that, effective as of the Closing Date: (i) all Overhead and Shared Services provided to the Jewel 

Business shall cease; and (ii) Sellers and their Affiliates shall have no further obligation to provide any such 

Overhead and Shared Services to the Jewel Business. 

(b) Except as set forth in the Transition Services Agreement, Buyer agrees to assume 

responsibility for, and pay all expenses in connection with, removing, transporting or relocating all 

Acquired Assets that, at the Closing, are located at any of the facilities or Real Property of any Seller or 

any of their Affiliates, and which, if reasonably requested by Buyer, have been packaged by any Seller 

(which packaging shall be at Buyer’s cost and expense) for transport, other than any Acquired Assets that 

will be used by Sellers in connection with their performance of the Transition Services Agreement. Such 

removal, transportation or relocation shall be completed by Buyer within thirty (30) days following the 

Closing Date or, in the case of Acquired Assets used by Sellers in connection with their performance of the 

Transition Services Agreement, within thirty (30) days following the termination or expiration of the 

applicable service(s) under the Transition Services Agreement or as otherwise specifically provided in the 

Transition Services Agreement. Sellers agree, from and after the Closing Date or the date of termination of 

the Transition Services Agreement, to provide Buyer, its agents and employees, reasonable access to such 

facilities during reasonable business hours and upon reasonable notice for purposes of removing such 

Acquired Assets. Sellers shall have no Liability to Buyer in connection with the storage at, or removal from, 

such facilities of such Acquired Assets after the Closing, and risk of loss with respect to such Acquired 

Assets shall pass to Buyer upon the Closing. Buyer shall be responsible for the costs of repairing any 

damage to such facilities resulting from the removal of such Acquired Assets therefrom after the Closing 

Date. 

6.14 Payments from Third Parties After Closing. Subject to any applicable terms in the 

Transition Services Agreement, in the event that any Seller receives any payment from a third party (other 

than Buyer or any of its Affiliates) after the Closing Date pursuant to any of the Assumed Contracts (or 

with respect to the operation by Buyer of the Jewel Business or any Acquired Asset during the post-Closing 

period) and to the extent such payment is not in respect of an Excluded Asset or an Excluded Liability, 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 47 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 81 of 105
#4839-7420-7369v7 39 

Sellers shall forward such payment, as promptly as practicable but in any event within thirty (30) days after 

such receipt, to Buyer (or other entity nominated by Buyer in writing to Sellers) and notify such third party 

to remit all future payments (in each case, to the extent such payment is in respect of any post-Closing 

period with respect to the Jewel Business and is not in respect of an Excluded Asset or an Excluded 

Liability) pursuant to the Assumed Contracts to Buyer (or such other entity). Notwithstanding anything to 

the contrary in this Agreement, in the event that Buyer or any of its Affiliates receives any payment from a 

third party after the Closing on account of, or in connection with, any Retained Business and/or any 

Excluded Asset, Buyer shall forward such payment, as promptly as practicable but in any event within thirty 

(30) days after such receipt, to Sellers (or other entity nominated by Sellers in writing to Buyer) and notify 

such third party to remit all future payments on account of or in connection with the Retained Business and 

any Excluded Assets to Sellers (or such other entity). 

6.15 Letters of Credit. On the Closing Date, Buyer shall, at its sole cost and expense, (i) use 

commercially reasonable efforts to replace any letters of credit, banker’s acceptance or similar credit 

transactions that secure any Assumed Liabilities of Sellers or their Affiliates Relating to the Jewel Business 

and (ii) cause such letters of credit, banker’s acceptance or similar credit transactions to be released and 

returned to the Sellers. 

6.16 Notification of Certain Matters. 

(a) Gemstone will promptly notify Buyer of: (i) any written notice or other 

communication from any Person alleging that the consent of such Person is or may be required in 

connection with the transactions contemplated by this Agreement, except with respect to any consent the 

failure of which to be obtained would not be, or reasonably be expected to be, material to the Acquired 

Asset; (ii) any written notice or other communication from any Governmental Entity (other than the Chapter 

11 Cases) related to or in connection with the transactions contemplated by this Agreement; and (iii) 

promptly upon discovery thereof, any material variances from, or the existence or occurrence of any event, 

fact or circumstance arising after the execution of this Agreement that would reasonably be expected to 

cause any of the representations and warranties contained in Article 4 to be untrue or inaccurate in a manner 

that would reasonably be expected to cause the conditions set forth in Section 7.1 not to be satisfied. 

(b) Sellers shall use their reasonable best efforts to deliver to Buyer the following 

additional information (as of the Agreement Date) within ten (10) Business Days after the Agreement Date: 

(i) a true and correct list of all material Benefit Plans; 

(ii) with respect to the material Benefit Plans, true and complete copies of the 

plan documents and any amendments thereto; 

(iii) a true and complete list of all Contracts Relating to the Jewel Business or 

that are otherwise material to the Jewel Business, and true and complete copies of all such Contracts, each 

as amended as of the Agreement Date; 

(iv) a true and correct list of any letters of credit, banker’s acceptance or similar 

credit transactions that secure any Assumed Liabilities of Sellers or their Affiliates Relating to the Jewel 

Business; 

(v) a true, accurate and complete list of each lease, ground lease, sublease, 

license, option or other agreement related to the Leased Real Property; and 

(vi) a true and complete list of each Necessary Consent. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 48 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 82 of 105
#4839-7420-7369v7 40 

6.17 Confidentiality. 

(a) Upon and for a period of one (1) year following the Closing, Sellers shall, and shall 

cause their respective Affiliates and representatives to, keep confidential all non-public information 

regarding the Acquired Assets or the Jewel Business, except for (i) such public disclosure as Sellers and its 

counsel may reasonably determine to be required under any applicable Law, regulation, stock exchange 

requirement or Order (provided that Sellers will provide Buyer with prior written notice of any such 

disclosure to the extent permitted by applicable Law and, where applicable and reasonably requested by 

Buyer and at Buyer’s sole cost and expense, Sellers will use commercially reasonable efforts to cooperate 

with Buyer to obtain a protective order or other confidential treatment or otherwise limit the scope of 

information that is required to be disclosed, and Sellers shall only disclose that portion of such information 

as Sellers are advised by its in counsel in writing is required to be disclosed) and (ii) disclosure to its 

representatives solely to the extent that such parties need to know such information and agree to be bound 

by confidentiality obligations no less protective than those set forth in this Section 6.17. Sellers will be 

responsible for any disclosure by their respective Affiliates and representatives of any such non-public 

information regarding the Acquired Assets or the Jewel Business to the same degree as if such disclosure 

were made by Sellers. 

(b) During the Interim Period, Buyer shall, and shall cause its Affiliates, Designated 

Purchasers (if any) and representatives to, abide by the confidentiality provisions set forth in that certain 

Confidentiality Agreement, dated as of December 14, 2018, by and between Gemstone and Buyer. 

6.18 Communication With Other Bidders. Unless prohibited by Law, Buyer (and its 

representatives) may, with the prior written approval of Sellers (which such approval may be granted or 

withheld in Sellers’ sole discretion) initiate, participate or agree to participate in any meeting or engage in 

substantive discussion with any potential bidders in the Auction regarding this Agreement, the Transactions, 

the Jewel Business, the Auction, the Retained Business or any matter related thereto (including discussions 

regarding potential joint bidding arrangements or stalking horse bids with respect to specific parts of the 

Jewel Business). Gemstone and its representatives shall have the right to attend and participate in any such 

discussions, subject to appropriate confidentiality arrangements, and Buyer and its representatives shall 

cooperate and work together in good faith with Gemstone and its representatives, and keep Gemstone and 

its representatives reasonably informed, in connection with any such meeting or substantive discussion. 

6.19 Personally Identifiable Information. Buyer acknowledges that the Acquired Assets include 

personally identifiable information within the meaning of Section 363(b) of the Bankruptcy Code, including 

personal information about the Sellers’ customers (such Acquired Assets collectively, “PII”). In connection 

therewith, from and after the Closing, Buyer shall: (a) maintain appropriate security controls and procedures 

(technical, operational, managerial and otherwise) to protect PII, (b) abide by all Laws applicable to PII and 

(c) take such further actions with respect to PII as may be agreed between the Parties in their discretion. 

Buyer further agrees that it shall (i) abide by Sellers’ privacy policies and privacy-related covenants made 

in Sellers’ terms of service that were in effect as of the Petition Date with respect to such PII (it being 

understood that Buyer may revise such policies and terms as provided by such policies and terms), 

(ii) respect prior requests of customers to opt out of receipt of marketing messages (to the extent Sellers 

make Buyer aware of such requests; provided, that Buyer shall seek to obtain such information from Sellers) 

and (iii) use personal information only for the purposes of continuing Jewel Business operations and 

continuing to provide similar goods and services to customers, including marketing the products and 

services related to Acquired Assets or as otherwise permitted by Sellers’ privacy policies or privacy-related 

covenants made in Sellers’ terms of service.

6.20 Sell-Off of Inventory. From and after the Closing, Sellers shall use commercially 

reasonable efforts to enforce any covenant included in any agreement to which any Seller is a party that 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 49 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 83 of 105
#4839-7420-7369v7 41 

restricts, conditions or limits the ability of any Person to sell Inventory manufactured for the Jewel Business 

and Seller shall not amend, modify or waive any such covenant without the prior written consent of Buyer. 

6.21 Asset Identification. If Sellers gain Knowledge of any property, asset, interest and right of 

every nature, tangible and intangible, of Sellers, real or personal, now existing or hereafter acquired, 

whether or not reflected on the books or financial statements of Sellers as the same shall exist on the Closing 

Date, Relating to the Jewel Business that is neither (i) an Acquired Asset nor (ii) an Excluded Asset under 

Section 2.2(a) through Section 2.2(i) or Section 2.2(k) through Section 2.2(o) (the “Additional Assets”), 

then at the written request of Buyer and without any further consideration, Sellers shall use their reasonable 

best efforts to (a) execute and deliver to Buyer such other instruments of sale, transfer, conveyance, 

assignment and confirmation; (b) provide such materials and information; and (c) take such other actions, 

as Buyer may reasonably deem necessary or desirable in order to transfer, convey, and assign to Buyer, to 

confirm Buyer’s title to the Additional Assets. Notwithstanding anything to the contrary set forth herein, 

the Additional Assets shall be Acquired Assets for all purposes of this Agreement. 

ARTICLE 7 

CONDITIONS TO OBLIGATIONS OF THE PARTIES 

7.1 Conditions Precedent to Obligations of Buyer. The obligation of Buyer to consummate the 

Transactions is subject to the satisfaction (or written waiver by Buyer in Buyer’s sole discretion) at or prior 

to the Closing Date of each of the following conditions: 

(a) Accuracy of Representations and Warranties. The representations and warranties 

of Sellers (i) set forth in Section 4.1 (Organization) and Section 4.2 (Due Authorization) (collectively, the 

“Seller Fundamental Representations”) shall be true and correct in all respects and (ii) set forth in Article 4 

(other than the Seller Fundamental Representations) shall be true and correct (disregarding all qualifications 

or limitations as to “materiality” or “Sellers Material Adverse Effect” and words of similar import set forth 

therein), except where the failure of such representations or warranties to be true and correct would not 

reasonably be expected to have a Sellers Material Adverse Effect, in the case of each of clauses (i) and (ii), 

as of the Agreement Date and at and as of the Closing as though made at and as of the Closing (in each 

case, except to the extent expressly made as of another date, in which case as of such date as if made at and 

as of such date). 

(b) Performance of Obligations. Sellers shall have performed in all material respects 

all obligations and agreements contained in this Agreement required to be performed by them on or prior 

to the Closing Date. 

(c) Officer’s Certificate. Buyer shall have received a certificate, dated the Closing 

Date, of an executive officer of each Seller to the effect that the conditions specified in Sections 7.1(a) and 

7.1(b) above have been fulfilled and/or waived. 

(d) Antitrust Approval. All applicable waiting periods under the HSR Act related to 

the Transactions shall have expired or been terminated, if required. 

(e) Sale Order. After notice and a hearing as defined in Section 102(1) of the 

Bankruptcy Code, the Bankruptcy Court shall have entered the Sale Order, and such Sale Order shall be in 

full force and effect and shall not have been reversed, stayed, modified, amended or vacated, and as to 

which the time to appeal or seek certiorari or move for a vacatur, new trial, reargument or rehearing has 

expired, and no appeal or petition for certiorari or other proceedings for a vacatur, new trial, reargument or 

rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari 

that has been timely filed has been withdrawn or resolved by the highest court to which the Order was 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 50 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 84 of 105
#4839-7420-7369v7 42 

appealed or from which certiorari was sought or the vacatur, new trial, reargument or rehearing shall have 

been denied or resulted in no modification of such Order. 

(f) No Order. No court or other Governmental Entity has issued, enacted, entered, 

promulgated or enforced any Law or Order (that is final and non-appealable and that has not been vacated, 

withdrawn or overturned) restraining, enjoining or otherwise prohibiting the transactions contemplated by 

this Agreement. 

(g) No Sellers Material Adverse Effect. No Sellers Material Adverse Effect has 

occurred since the date hereof that is continuing. 

(h) Selection of Buyer as Successful Bidder. Buyer shall have been selected as 

Successful Bidder. 

(i) Inventory Purchase Agreement. The Inventory Purchase Agreement shall be in 

full force and effect. 

7.2 Conditions Precedent to the Obligations of Sellers. The obligation of Sellers to 

consummate the Transactions is subject to the satisfaction (or written waiver by Sellers) at or prior to the 

Closing Date of each of the following conditions: 

(a) Accuracy of Representations and Warranties. The representations and warranties 

of Buyer (i) set forth in Section 5.1 (Organization) and Section 5.2 (Due Authorization), shall be true and 

correct in all material respects and (ii) set forth in Article 5 (other than those described in clause (i)) shall 

be true and correct (disregarding all qualifications or limitations as to “materiality” or “Buyer Material 

Adverse Effect” and words of similar import set forth therein), except where the failure of such 

representations or warranties to be true and correct would not reasonably be expected to have a Buyer 

Material Adverse Effect, in the case of each of clauses (i) and (ii), as of the Agreement Date and at and as 

of the Closing as though made at and as of the Closing (in each case, except to the extent expressly made 

as of another date, in which case as of such date as if made at and as of such date). 

(b) Performance of Obligations. Buyer shall have performed in all material respects 

all obligations and agreements contained in this Agreement required to be performed by it on or prior to the 

Closing Date. 

(c) Officer’s Certificate. Sellers shall have received a certificate, dated the Closing 

Date, of an executive officer of Buyer to the effect that the conditions specified in Sections 7.2(a) and 

7.2(b) above have been fulfilled and/or waived. 

(d) Antitrust Approval. All applicable waiting periods under the HSR Act related to 

the Transactions shall have expired or been terminated, if required. 

(e) Sale Order. After notice and a hearing as defined in Section 102(1) of the 

Bankruptcy Code, the Bankruptcy Court shall have entered the Sale Order, and such Sale Order shall be in 

full force and effect and shall not have been reversed, stayed, modified, amended or vacated, and as to 

which the time to appeal or seek certiorari or move for a vacatur, new trial, reargument or rehearing has 

expired, and no appeal or petition for certiorari or other proceedings for a vacatur, new trial, reargument or 

rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari 

that has been timely filed has been withdrawn or resolved by the highest court to which the Order was 

appealed or from which certiorari was sought or the vacatur, new trial, reargument or rehearing shall have 

been denied or resulted in no modification of such Order. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 51 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 85 of 105
#4839-7420-7369v7 43 

(f) No Order. No court or other Governmental Entity has issued, enacted, entered, 

promulgated or enforced any Law or Order (that is final and non-appealable and that has not been vacated, 

withdrawn or overturned) restraining, enjoining or otherwise prohibiting the transactions contemplated by 

this Agreement. 

7.3 Frustration of Conditions Precedent. None of Buyer or Sellers may rely on the failure of 

any condition set forth in this Article 7, as applicable, to be satisfied if such failure was caused by such 

Party’s failure to use, as required by this Agreement, its reasonable best efforts to consummate the 

Transactions contemplated hereby. 

ARTICLE 8 

TERMINATION 

8.1 Termination of Agreement. This Agreement may be terminated and the Transactions 

abandoned at any time prior to the Closing: 

(a) by written agreement of Sellers and Buyer; 

(b) by either Sellers or Buyer: 

(i) if there shall be any Law that makes consummation of the Transactions 

illegal or otherwise prohibited, or if any Order permanently restraining, prohibiting or enjoining Buyer or 

Sellers from consummating the Transactions is entered and such Order shall become final, provided, 

however, that no termination may be made by a Party under this Section 8.1(b)(i) if the issuance of such 

Order was caused by the breach or action or inaction of such Party; 

(ii) subject to Section 6.2, upon the filing of a motion by a Seller to approve 

an Alternative Transaction or the Bankruptcy Court’s entry of an order approving an Alternative 

Transaction; or 

(iii) if (A) a trustee or an examiner with expanded powers is appointed in any 

of the Chapter 11 Cases or (B) any of the Chapter 11 Cases is dismissed or converted to a case under 

Chapter 7 of the Bankruptcy Code; 

(c) by Buyer if (i) there shall have been a breach by any Seller of any of its 

representations, warranties, covenants or agreements contained in this Agreement, which breach would 

result in the failure to satisfy one or more of the conditions set forth in Section 7.1, or (ii) any other event 

or condition shall result in any Seller being incapable of satisfying one or more conditions set forth in 

Section 7.1, and in either case such breach or other event or condition shall be incapable of being cured or, 

if capable of being cured, shall not have been cured within twenty (20) days after written Notice thereof 

shall have been received by Sellers; provided, that as of such date, Buyer is not in breach of this Agreement, 

which breach would result in the failure to satisfy one or more of the conditions set forth in Section 7.2; 

(d) by Buyer if, subject to Section 6.2, Buyer is not selected as the Successful Bidder 

or the Back-Up Bidder at the Auction; 

(e) by Sellers, if (i) there shall have been a breach by Buyer of any of its 

representations, warranties, covenants or agreements contained in this Agreement, which breach would 

result in the failure to satisfy one or more of the conditions set forth in Section 7.2, or (ii) any other event 

or condition shall result in Buyer being incapable of satisfying one or more conditions set forth in 

Section 7.2, and in either case such breach or other event or condition shall be incapable of being cured or, 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 52 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 86 of 105
#4839-7420-7369v7 44 

if capable of being cured, shall not have been cured within twenty (20) days after written Notice thereof 

shall have been received by Buyer; provided that as of such date, any Seller is not in breach of this 

Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in 

Section 7.1; 

(f) by Buyer if a Sale Order has not been entered on or before March 15, 2019, and 

by Buyer or Sellers if the Closing shall not have occurred on or before March 15, 2019; provided, however, 

that a Party shall be permitted to terminate this Agreement pursuant to this Section 8.1(f) only if such Party 

is not itself in material breach of any of its representations, warranties, covenants or agreements contained 

herein; 

(g) by Sellers if the governing body of any Seller determines, upon advice from 

outside legal counsel, that proceeding with the Transactions or failing to terminate this Agreement would 

violate its or such governing body’s fiduciary obligations under applicable Law, including to pursue an 

Alternative Transaction. For the avoidance of doubt, and subject to the terms and conditions of this 

Agreement (including Buyer’s right to terminate this Agreement in accordance with this Section 8.1(g)), 

Sellers retain the right to pursue any transaction or restructuring strategy that, in Sellers’ business judgment, 

will maximize the value of their estates, provided however, that if Sellers terminate this Agreement (other 

than pursuant to Section 7.1(e)) at any time after Buyer has been selected as the Successful Bidder, Sellers 

shall promptly return Buyer’s Good Faith Deposit and Incremental Deposit Amount, if applicable; and

(h) by written notice from Buyer to Gemstone, if Buyer is neither the Successful 

Bidder nor the Backup Bidder following the Auction. 

8.2 Consequences of Termination. In the event of any termination of this Agreement by either 

or both of Buyer and Sellers pursuant to Section 8.1, written Notice thereof shall be given by the terminating 

Party to the other Parties hereto, specifying the provision hereof pursuant to which such termination is 

made, this Agreement shall thereupon terminate and become void and of no further force and effect (other 

than Section 6.4 (Public Announcements), this Section 8.2 (Consequences of Termination) and Article 9 

(Miscellaneous) and to the extent applicable in respect of such Sections and Article, Article 1 (Definitions)), 

and the Transactions shall be abandoned without further action of the Parties hereto, except that such 

termination shall not relieve (a) Sellers of their Liability to make payments required by Section 8.1(g) or 

(b) any Party of any Liability for Fraud or willful breach of this Agreement. 

ARTICLE 9 

MISCELLANEOUS 

9.1 Expenses. Except as set forth in this Agreement and whether or not the Transactions are 

consummated, each Party hereto shall bear all costs and expenses incurred or to be incurred by such Party 

in connection with this Agreement and the consummation of the Transactions. 

9.2 Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be 

assigned by Sellers without the prior written consent of Buyer, or by Buyer without the prior written consent 

of Sellers; provided, that Buyer may assign its rights and obligations to a Designated Purchaser so long as 

Buyer remains primarily liable for its obligations. Subject to the foregoing, this Agreement shall be binding 

upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns 

including any liquidating trustee, responsible Person or similar representative for Sellers or Sellers’ estate 

appointed in connection with the Chapter 11 Cases. 

9.3 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of 

Sellers (and their estates), Buyer and their respective successors or permitted assigns, and nothing in this 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 53 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 87 of 105
#4839-7420-7369v7 45 

Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or 

remedies of any nature whatsoever under or by reason of this Agreement except as expressly set forth 

herein. 

9.4 Releases. Effective as of the Closing: (a) Sellers hereby release Buyer and its Affiliates 

and the equityholders, directors, managers, officers, employees, members, partners, limited partners, agents 

and representatives of Buyer and its Affiliates (collectively, the “Buyer Released Parties”) from any and all 

Liabilities, actions, rights of action, contracts, indebtedness, obligations, Claims, causes of action, suits, 

damages, demands, costs, expenses and attorneys’ fees whatsoever, of every kind and nature, known or 

unknown, disclosed or undisclosed, accrued or unaccrued, existing at any time, in all circumstances arising 

prior to Closing, that any Seller or its respective Affiliates and all such Persons’ respective successors and 

assigns, have or may have against any of Buyer Released Parties; provided that the foregoing shall not 

release any rights under this Agreement or any other Transaction Document; and (b) Buyer hereby releases 

Sellers and their respective Affiliates, and the equityholders, directors, managers, officers, employees, 

members, partners, limited partners, agents and representatives of Sellers and their respective Affiliates 

(collectively, the “Sellers Released Parties”) from any and all Liabilities, actions, rights of action, contracts, 

indebtedness, obligations, Claims, causes of action, suits, damages, demands, costs, expenses and attorneys’ 

fees whatsoever, of every kind and nature, known or unknown, disclosed or undisclosed, accrued or 

unaccrued, existing at any time, in all circumstances arising prior to Closing, that Buyer and its Affiliates 

and all of its and their respective successors and assigns, have or may have against any of Sellers Released 

Parties in relation to Gymboree Holding Corporation, a Delaware corporation, or any of its Subsidiaries 

(including Sellers), or the Transactions contemplated hereby; provided that the foregoing shall not release 

any rights under this Agreement or any other Transaction Document. 

9.5 Notices. All notices, demands, requests, consents, approvals or other communications 

(collectively, “Notices”) required or permitted to be given hereunder or that are given with respect to this 

Agreement shall be in writing and shall be personally served, delivered by a nationally recognized overnight 

delivery service with charges prepaid, or transmitted by hand delivery, or facsimile or electronic mail, 

addressed as set forth below, or to such other address as such Party shall have specified most recently by 

written Notice. Notice shall be deemed given on the date of service or transmission if personally served or 

transmitted by facsimile or electronic mail with confirmation of receipt; provided that if delivered or 

transmitted on a day other than a Business Day or after 5:00 p.m. New York time, notice shall be deemed 

given on the next Business Day. Notice otherwise sent as provided herein shall be deemed given on the 

next Business Day following timely deposit of such Notice with an overnight delivery service: 

If to any Seller or Sellers’ Representative:

 Gymboree Group, Inc. 

71 Stevenson Street, Suite 2200 

San Francisco, CA 94105 

Attention: Jon W. Kimmins and Kimberly Holtz MacMillan 

Email: jon_kimmins@gymboree.com and 

 kimberly_macmillan@gymboree.com 

With copies (which shall not constitute notice) to: 

 Milbank LLP 

55 Hudson Yards 

New York, NY 10001 

Attention: Evan R. Fleck and Scott W. Golenbock 

Email: efleck@milbank.com and sgolenbock@milbank.com 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 54 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 88 of 105
#4839-7420-7369v7 46 

If to Buyer: The Gap, Inc. 

Two Folsom Street 

San Francisco, CA 94105 

 Attention: Julie Gruber 

Email: julie_gruber@gap.com 

With copies (which shall not constitute notice) to: 

 Orrick, Herrington & Sutcliffe, LLP 

 405 Howard Street 

 San Francisco, CA 94105-2669 

 Attention: Brett Cooper 

Email: bcooper@orrick.com 

Rejection of or refusal to accept any Notice, or the inability to deliver any Notice because of 

changed address of which no Notice was given, shall be deemed to be receipt of the Notice as of the date 

of such rejection, refusal or inability to deliver. 

9.6 Choice of Law. This Agreement shall be construed and interpreted, and the rights of the 

Parties shall be determined, in accordance with the Laws of the State of New York, without giving effect 

to any provision thereof that would require or permit the application of the substantive laws of any other 

jurisdiction. 

9.7 Entire Agreement; Amendments and Waivers. This Agreement, the Sale Order, and all 

Transaction Documents and all certificates and instruments delivered pursuant hereto and thereto constitute 

the entire agreement among the Parties pertaining to the subject matter hereof and supersede all prior 

agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties. This 

Agreement may be amended, supplemented or modified, and any of the terms, covenants, representations, 

warranties or conditions may be waived, only by a written instrument executed by Buyer and Sellers, or in 

the case of a waiver, by the Party waiving compliance. No waiver of any of the provisions of this Agreement 

shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), and no 

such waiver shall constitute a continuing waiver unless otherwise expressly provided. 

9.8 Counterparts; Facsimile and Electronic Signatures. This Agreement may be executed in 

two or more counterparts, each of which shall be deemed an original, and all of which together shall 

constitute one and the same instrument. Counterparts to this Agreement may be delivered via facsimile or 

electronic mail. In proving this Agreement, it shall not be necessary to produce or account for more than 

one such counterpart signed by the Party against whom enforcement is sought. 

9.9 Severability. The invalidity or unenforceability of any provision of this Agreement shall 

not affect the validity or enforceability of any other provisions of this Agreement. In the event that any of 

the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be 

illegal, invalid or unenforceable, such provisions shall be limited or eliminated only to the minimum extent 

necessary so that this Agreement shall otherwise remain in full force and effect. 

9.10 Headings. The table of contents and the headings of the Articles and Sections herein are 

inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or 

interpretation of, this Agreement. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 55 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 89 of 105
#4839-7420-7369v7 47 

9.11 Exclusive Jurisdiction and Specific Performance. 

(a) Subject to Section 9.11(b), without limiting any Party’s right to appeal any order 

of the Bankruptcy Court, (i) the Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of 

this Agreement and to decide any Claims or disputes which may arise or result from, or be connected with, 

this Agreement, any breach or default hereunder, or the Transactions, and (ii) any and all Proceedings 

related to the foregoing shall be filed and maintained only in the Bankruptcy Court, and the Parties hereby 

consent to and submit to the jurisdiction and venue of the Bankruptcy Court and shall receive Notices at 

such locations as indicated in Section 9.5. For the avoidance of doubt, this Section 9.11 shall not apply to 

any Claims that Buyer or its Affiliates may have against any third party following the Closing. 

(b) Notwithstanding anything herein to the contrary, in the event the Chapter 11 Cases 

of Sellers are closed or dismissed, the Parties hereby agree that all Claims or disputes which may arise or 

result from, or be connected with, this Agreement, any breach or default hereunder, or the Transactions, 

shall be heard and determined exclusively in any federal court sitting in the Borough of Manhattan in the 

City of New York or, if that court does not have subject matter jurisdiction, in any state court located in the 

City and County of New York (and, in each case, any appellate court thereof), and the Parties hereby 

consent to and submit to the jurisdiction and venue of such courts. 

(c) Buyer acknowledges that Sellers would be damaged irreparably in the event that 

the terms of this Agreement are not performed by Buyer in accordance with its specific terms or otherwise 

breached or Buyer fails to consummate the Closing and that, in addition to any other remedy that Sellers 

may have under law or equity, Sellers shall be entitled to seek injunctive relief to prevent breaches of the 

terms of this Agreement and to seek to enforce specifically the terms and provisions hereof that are required 

to be performed by Buyer. Buyer further agrees that no Seller shall be required to obtain, furnish or post 

any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in 

this Section 9.11, and irrevocably waives any right it may have to require the obtaining, furnishing or 

posting of any such bond or similar instrument. 

(d) Sellers acknowledge that Buyer would be damaged irreparably in the event that 

the terms of this Agreement are not performed by Sellers in accordance with its specific terms or otherwise 

breached or Sellers fail to consummate the Closing and that, in addition to any other remedy that Buyer 

may have under law or equity, Buyer shall be entitled to seek injunctive relief to prevent breaches of the 

terms of this Agreement and to seek to enforce specifically the terms and provisions hereof that are required 

to be performed by Sellers. Each Seller further agrees that Buyer shall not be required to obtain, furnish or 

post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred 

to in this Section 9.11, and irrevocably waives any right it may have to require the obtaining, furnishing or 

posting of any such bond or similar instrument. 

9.12 WAIVER OF RIGHT TO TRIAL BY JURY. SELLERS AND BUYER HEREBY WAIVE 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT THEY MAY HAVE 

TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY 

ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS 

CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER 

THEORY). FOR THE AVOIDANCE OF DOUBT, THIS SECTION 9.12 SHALL NOT APPLY TO ANY 

CLAIMS THAT BUYER OR ITS AFFILIATES MAY HAVE AGAINST ANY THIRD PARTY 

FOLLOWING THE CLOSING. 

9.13 Survival. Each and every representation and warranty contained in this Agreement shall 

expire and be of no further force and effect as of the Closing. Each and every covenant and agreement 

contained in this Agreement (other than the covenants contained in this Agreement which by their terms 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 56 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 90 of 105
#4839-7420-7369v7 48 

are to be performed (in whole or in part) by the Parties following the Closing (each, a “Post-Closing 

Covenant”)) shall expire and be of no further force and effect as of the Closing. Each Post-Closing Covenant 

shall survive the Closing until the earlier of (a) performance of such Post-Closing Covenant in accordance 

with this Agreement or, (b) (i) if time for performance of such Post-Closing Covenant is specified in this 

Agreement, sixty (60) days following the expiration of the time period for such performance or (ii) if time 

for performance of such Post-Closing Covenant is not specified in this Agreement, the expiration of the 

applicable statute of limitations with respect to any claim for any failure to perform such Post-Closing 

Covenant; provided that if a written notice of any claim with respect to any Post-Closing Covenant is given 

prior to the expiration thereof then such Post-Closing Covenant shall survive until, but only for purposes 

of, the resolution of such claim by final, non-appealable judgment or settlement. 

9.14 Computation of Time. In computing any period of time prescribed by or allowed with 

respect to any provision of this Agreement that relates to Sellers or the Chapter 11 Cases, the provisions of 

rule 9006(a) of the Federal Rules of Bankruptcy Procedure shall apply. 

9.15 Time of Essence. Time is of the essence of this Agreement. 

9.16 Non-Recourse. No past, present or future director, manager, officer, employee, 

incorporator, member, partner or equity holder of any Seller shall have any Liability for any Liabilities of 

such Seller under this Agreement or for any Claim based on, in respect of, or by reason of the Transactions. 

9.17 Disclosure Schedules. Except as set forth in this Agreement, the inclusion of any 

information (including dollar amounts) in Disclosure Schedules shall not be deemed to be an admission or 

acknowledgment by any Party that such information is required to be listed on such section of the relevant 

schedule or is material to or outside the Ordinary Course of Business of any Person. The information 

contained in this Agreement, the exhibits hereto and the Disclosure Schedules is disclosed solely for 

purposes of this Agreement, and no information contained herein or therein shall be deemed to be an 

admission by any Party to any third party of any matter whatsoever (including any violation of any Law or 

breach of contract). Unless the context otherwise requires, all capitalized terms used in the Disclosure 

Schedules shall have the respective meanings assigned in this Agreement. The Disclosure Schedules set 

forth items of disclosure with specific reference to the particular Section or subsection of this Agreement 

to which the information in the Disclosure Schedules relates; provided, however, that any information set 

forth in one Section of the Disclosure Schedules will be deemed to apply to each other section or 

subsection thereof to which its relevance is reasonably apparent on its face. 

9.18 Sellers’ Representative; Dealings Among Sellers. By its execution and delivery of this 

Agreement, each Seller hereby irrevocably constitutes and appoints Gemstone as its true and lawful agent 

and attorney-in-fact (the “Sellers’ Representative”), with full power of substitution to act in such Seller’s

name, place and stead with respect to all Transactions and all terms and provisions of this Agreement, and 

to act on such Seller’s behalf in any Proceeding, and to do or refrain from doing all such further acts and 

things, and execute all such documents as Sellers’ Representative shall deem necessary or appropriate in 

connection with the Transactions. The appointment of Sellers’ Representative shall be deemed coupled 

with an interest and shall be irrevocable, and Buyer, its Affiliates and any other Person may conclusively 

and absolutely rely, without inquiry, upon any action of Sellers’ Representative on behalf of Sellers in all 

matters referred to herein or contemplated hereby including any direction regarding the amount of any 

payment to any Seller. Buyer shall have no obligation of any nature whatsoever for determining any 

allocation of any payments among Sellers. Without limiting the generality of the foregoing, absent specific 

direction by Sellers’ Representative, Buyer shall be deemed to have fulfilled its obligations hereunder 

absolutely with respect to any amounts payable by it under or pursuant to this Agreement or the delivery of 

any instruments if Buyer shall pay any such amounts or deliver such instruments to Sellers’ Representative. 

All Notices delivered by Buyer (whether prior to or following the Closing) to Sellers’ Representative 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 57 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 91 of 105
#4839-7420-7369v7 49 

(whether pursuant hereto or otherwise) for the benefit of Sellers shall constitute valid and timely Notice to 

all of Sellers. 

9.19 Mutual Drafting. This Agreement is the result of the joint efforts of Buyer and Sellers, and 

each provision hereof has been subject to the mutual consultation, negotiation and agreement of the Parties 

and there is to be no construction against any Party based on any presumption of that Party’s involvement 

in the drafting thereof. 

9.20 Fiduciary Obligations. Nothing in this Agreement, or any document related to the 

Transactions contemplated hereby, without limiting in any way Buyer’s rights and remedies set forth in this 

Agreement, will require any Seller or any of their respective governing bodies, directors, officers or 

members, in each case, in their capacity as such, to take any action, or to refrain from taking any action, to 

the extent inconsistent with their fiduciary obligations. 

[Remainder of Page Intentionally Left Blank] 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 58 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 92 of 105
#4839-7420-7369v7 [Signature Pages to Asset Purchase Agreement] 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly 

authorized officers of Sellers and Buyer as of the date first above written. 

BUYER: 

THE GAP, INC. 

By: 

Name: 

Title: 

By: 

Name: 

Title: 

 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 59 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 93 of 105
#4839-7420-7369v7 [Signature Pages to Asset Purchase Agreement] 

SELLERS: 

GYMBOREE GROUP, INC. 

By: 

Name: 

Title: 

GYMBOREE RETAIL STORES, LLC 

By: 

Name: 

Title: 

GYM-CARD, LLC 

By: 

Name: 

Title: 

GYMBOREE MANUFACTURING, INC. 

By: 

Name: 

Title: 

GYMBOREE DISTRIBUTION, INC. 

By: 

Name: 

Title: 

GYMBOREE OPERATIONS, INC. 

By: 

Name: 

Title: 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 60 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 94 of 105
#4839-7420-7369v7 [Signature Pages to Asset Purchase Agreement] 

GYMBOREE ISLAND, LLC 

By: 

Name: 

Title: 

GYM-MARK, INC. 

By: 

Name: 

Title: 

GYMBOREE WHOLESALE, INC. 

By: 

Name: 

Title: 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 61 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 95 of 105
 

([KLELW

 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 96 of 105
Execution Draft 

4137-9846-7354.4 

ASSET PURCHASE AGREEMENT AND BILL OF SALE 

This Asset Purchase Agreement and Bill of Sale (this “Agreement”) is made and entered into as of 

March 1, 2019 by and among Gymboree Group, Inc., a Delaware corporation (“Gymboree”) and The Gap, 

Inc., a Delaware corporation (“Buyer”) and, solely with respect to Sections 1 and 2(b) hereof, GA Retail, 

Inc., Tiger Capital Group, LLC, Gordon Brothers Retail Partners, LLC, and Hilco Merchant Resources, 

LLC (collectively, “Agent”). Capitalized terms used but not defined herein have the meanings set forth in 

that certain Agency Agreement dated as of January 17, 2019 (the “Agency Agreement”) by and among 

Gymboree and Agent. The parties hereto agree as follows: 

1. Agency Agreement. 

(a) The Agency Agreement is hereby amended to permit the exercise of the J&J 

Option through and including the date hereof and to extend the J&J Option Period to the Closing Date (as 

defined below). This Agreement shall serve as an Option Notice setting the Closing Date as the J&J Option 

Effective Date. 

(b) Notwithstanding Section 16.12(b) of the Agency Agreement, Agent shall be 

entitled to conduct the Sale at the J&J Stores as a “going out of business”, “store closing” or “everything 

must go” sale. Upon receipt of the J&J Option Payment (as amended hereunder), Agent and Gymboree 

shall immediately discontinue the Sale at the J&J Stores and the sale of any Janie and Jack Merchandise on 

the Ecommerce Platform and shall remove or cause to be removed all sale signage and advertising relating 

to the Assets. 

(c) The Agent agrees that upon the receipt of the J&J Option Payment, any rights, 

claims, or interests the Agent had in the Assets (as defined below) shall be extinguished and released. 

(d) The amount of the J&J Option Payment provided in Section 16.12(d) shall be 

amended and increased by $650,000 in the aggregate. 

(e) Effective upon receipt of the J&J Option Payment, Section 3.1(a) of the Agency 

Agreement shall be deemed to be amended to provide that the Guaranty Percentage shall be reduced to 

79.0% of the aggregate Cost Value of the Merchandise and the Guaranteed Amount shall be calculated 

excluding Janie and Jack Merchandise, Exhibit 3.1(b)(1) shall be effective rather than Exhibit 3.1(b) and 

Exhibit 3.1(c)(1) shall be effective rather than Exhibit 3.1(c). 

2. Purchase and Sale of Assets. 

(a) For good and valuable consideration of the Purchase Price (as defined below) and 

the assumption of the Assumed Liabilities (as defined below), the receipt and adequacy of which Gymboree 

hereby acknowledges, as of the Closing, Gymboree hereby irrevocably sells, assigns, transfers, conveys, 

grants, bargains and delivers to Buyer (or one or more persons, including any affiliates of Buyer, as 

designated by Buyer in writing to Gymboree prior to the Closing), all of its right, title and interest in and to 

all inventory and FF&E related to the Janie and Jack brand of Gymboree (and any goodwill related thereto), 

including (i) the remaining Janie and Jack Merchandise and any Additional Agent Merchandise purchased 

for the J&J Stores and (ii) any other assets that were subject to the option set forth in Section 16.12 of the 

Agency Agreement (collectively, the “Assets”). 

(b) The purchase price for the Assets shall equal (i) the Cost Value of the Assets that 

are Merchandise, plus (ii) the actual cost (with no profit or lift) of the Assets that are Additional Agent 

Merchandise, plus (iii) $10,000,000 (the “Purchase Price”). On the Closing Date, Buyer shall pay the 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 63 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 97 of 105
4137-9846-7354.4 - 2 - 

Purchase Price by wire transfer of immediately available funds to the accounts set forth in payment 

instructions from Gymboree that shall provide for the J&J Option Payment to be received by the Agent and 

the remainder of the Purchase Price to be received by Gymboree. Gymboree shall indemnify and hold 

harmless Buyer for any liabilities incurred by Buyer resulting from the misallocation of the Purchase Price 

among each Agent entity or between Agent and Gymboree. In the event there is any reconciliation required 

of the J&J Option Payment any adjustment of such amount shall be paid by Gymboree to the Agent or the 

Agent to Gymboree, as applicable. 

(c) Buyer hereby assumes, and Gymboree hereby assigns to Buyer, all obligations or 

liabilities of Gymboree directly related to the Assets that arise in, and are solely related to, the post-Closing 

period (the “Assumed Liabilities”). Gymboree shall not be liable for, and as between Buyer and Gymboree, 

Buyer shall be solely liable for and obligated to discharge all Assumed Liabilities. Buyer shall not be liable 

for, and as between Buyer and Gymboree, Gymboree shall be solely liable for and obligated to discharge 

all obligations or liabilities related to the Assets that are not Assumed Liabilities. 

(d) The consummation of the transactions contemplated by this Agreement (the 

“Closing”) shall occur contingent upon, and effective concurrently with, the consummation of the 

transactions contemplated by that certain Asset Purchase Agreement dated on or about the date hereof by 

and among Buyer, Gymboree and certain subsidiaries of Gymboree (or on such other date as the parties 

hereto may mutually agree). The Closing shall be held at the offices of Gymboree, at 10:00 a.m., local time, 

unless the parties hereto otherwise agree. The actual date of the Closing is herein called the “Closing Date”.

3. Representations and Warranties of Gymboree. 

(a) Gymboree has good and marketable title to the Assets, free and clear of any 

encumbrances or liens, other than the interests of the Agent and the Debtors’ DIP Lenders, all of which are 

to be released on the Closing Date. 

(b) Subject to entry of an appropriate order by the United States Bankruptcy Court for 

the Eastern District of Virginia, Gymboree has all requisite power and authority to execute and deliver and 

perform its obligations under this Agreement. 

(c) Subject to entry of an appropriate order by the United States Bankruptcy Court for 

the Eastern District of Virginia, the execution and delivery of this Agreement and performance by 

Gymboree of its obligations hereunder, and all transactions contemplated hereby, have been duly and 

validly authorized by all necessary action on the part of Gymboree. Subject to entry of an appropriate order 

by the United States Bankruptcy Court for the Eastern District of Virginia, this Agreement has been duly 

executed and delivered by Gymboree; and this Agreement constitutes, and such agreements and documents 

when executed and delivered will constitute, the valid and binding obligations of Gymboree, enforceable 

in accordance with its respective terms, except as enforcement may be limited by applicable bankruptcy, 

insolvency, reorganization or similar laws from time to time in effect affecting creditor’s rights generally 

and by legal and equitable limitations on the availability of specific remedies. 

4. Representations and Warranties of Buyer. 

(a) Buyer has all requisite power and authority to execute and deliver and perform its 

obligations under this Agreement. 

(b) The execution and delivery of this Agreement and performance by Buyer of its 

obligations hereunder, and all transactions contemplated hereby, have been duly and validly authorized by 

all necessary action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer; 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 64 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 98 of 105
4137-9846-7354.4 - 3 - 

and this Agreement constitutes, and such agreements and documents when executed and delivered will 

constitute, the valid and binding obligations of Buyer, enforceable in accordance with their respective terms, 

except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization or similar laws 

from time to time in effect affecting creditor’s rights generally and by legal and equitable limitations on the 

availability of specific remedies. 

(c) Buyer acknowledges and agrees that: (i) in making its decision to enter into this 

Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon its own 

investigation and the express representations and warranties of Gymboree set forth in Section 3 and the 

Agent set forth in Section 5; and (ii) neither Gymboree, Agent, nor any other person has made any 

representation or warranty as to Gymboree, Agent or this Agreement, except as expressly set forth in 

Section 3 or 5, as applicable. 

5. Representations and Warranties of Agent. 

(a) Agent has all requisite power and authority to execute and deliver and perform its 

obligations under this Agreement. 

(b) The execution and delivery of this Agreement and performance by Agent of its 

obligations hereunder, and all transactions contemplated hereby, have been duly and validly authorized by 

all necessary action on the part of Agent. This Agreement has been duly executed and delivered by Agent; 

and this Agreement constitutes, and such agreements and documents when executed and delivered will 

constitute, the valid and binding obligations of Agent, enforceable in accordance with its respective terms, 

except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization or similar laws 

from time to time in effect affecting creditor’s rights generally and by legal and equitable limitations on the 

availability of specific remedies. 

6. Bankruptcy Court Approval. All obligations of Gymboree and Agent hereunder are 

conditioned on the entry of an order by the United States Bankruptcy Court for the Eastern District of 

Virginia in form reasonably acceptable to Gymboree and Agent authorizing the execution and 

consummation of this Agreement. 

7. Disclaimer of Warranties. EXCEPT SOLELY FOR THE REPRESENTATIONS AND 

WARRANTIES SET FORTH IN SECTION 3, GYMBOREE MAKES NO REPRESENTATION OR 

WARRANTY WHATSOEVER WITH RESPECT TO THE ASSETS OR THE ASSUMED LIABILITIES, 

INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR 

A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST 

INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER 

ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR 

OTHERWISE. BY ACCEPTING THIS AGREEMENT, BUYER ACKNOWLEDGES THAT IT HAS 

NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY GYMBOREE OR AGENT, 

OR ANY OTHER PERSON ON GYMBOREE’S OR AGENT’S BEHALF. 

8. Further Assurances. The parties hereto agree to execute such further documents and 

instruments and to take such further actions as such other party may reasonably deem necessary or desirable 

in furtherance of the transactions contemplated by this Agreement. 

9. Governing Law. This Agreement is governed by, and construed in accordance with, the 

laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such 

principles or rules would require or permit the application of the laws of any jurisdiction other than those 

of the State of New York. 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 65 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 99 of 105
4137-9846-7354.4 - 4 - 

10. Expenses. Each of the parties hereto shall pay its own respective costs and expenses 

incurred or to be incurred by it in the negotiation and preparation of this Agreement and carrying out the 

transactions contemplated by this Agreement, including legal fees. 

11. Entire Agreement; Amendment. This Agreement, together with all schedule and exhibits 

hereto, constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and 

supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, 

whether oral or written, of the parties, and there are no representations, warranties or other agreements 

among the parties hereto in connection with the subject matter hereof except as set forth specifically herein 

or contemplated hereby. This Agreement may not be amended nor provisions waived except for by written 

instrument signed by all Parties. 

12. Notices. All notices and communications provided for pursuant to this Agreement shall be 

in writing and sent by email, by hand, or by Federal Express or other recognized overnight delivery service, 

as follows: 

If to Agent: 

GA RETAIL, INC. 

21255 Burbank Blvd, Suite 400 

Woodland Hills, CA 91367 

Attn: Scott K Carpenter 

Email: scarpenter@greatamerican.com 

HILCO MERCHANT RESOURCES, LLC 

5 Revere Drive, Suite 206 

Northbrook, IL 60062 

Attention: Ian S. Fredericks 

Tel: (847) 418-2075 

Fax: (847) 897-0859 

Email: ifredericks@hilcotrading.com 

GORDON BROTHERS RETAIL PARTNERS, LLC 

Prudential Tower 

800 Boylston Street 

Boston, MA 02119 

Attn: Mackenzie Shea 

Tel: 617.422.6519 

Email: mshea@gordonbrothers.com 

TIGER CAPITAL GROUP, LLC 

350 North LaSalle Street, 11th Floor 

Chicago, IL 60654 

Attn: Mark P. Naughton 

Tel: (312) 894-6081 

Fax: (617) 523-3007 

Email: mnaughton@tigergroup.com 

with a copy (which shall not constitute notice) to: 

GREENBERG TRAURIG 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 66 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 100 of 105
4137-9846-7354.4 - 5 - 

Attn: Jeffrey M. Wolf 

One International Place 

Suite 2000 

Boston, MA 02110 

Tel: 617 310 6041 

Email: wolfje@gtlaw.com 

If to Gymboree: 

Gymboree Group, Inc. 

71 Stevenson Street, Suite 2200 

San Francisco, CA 94105 

Attention: Jon W. Kimmins and Kimberly Holtz MacMillan 

Email: jon_kimmins@gymboree.com and 

 kimberly_macmillan@gymboree.com 

With a copy (which shall not constitute notice) to: 

Milbank LLP 

55 Hudson Yards 

New York, NY 10001 

Attention: Evan R. Fleck and Scott W. Golenbock 

Email: efleck@milbank.com and sgolenbock@milbank.com 

If to Buyer: 

The Gap, Inc. 

Two Folsom Street 

San Francisco, CA 94105 

Attention: Julie Gruber 

Email: julie_gruber@gap.com 

with a copy (which shall not constitute notice) to: 

Orrick, Herrington & Sutcliffe, LLP 

405 Howard Street 

San Francisco, CA 94105-2669 

Attention: Brett Cooper 

Email: bcooper@orrick.com 

13. Counterparts. This Agreement may be executed in counterparts, each of which shall be 

deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed 

copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be 

deemed to have the same legal effect as delivery of an original signed copy of this Agreement. 

[Signature Page Follows] 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 67 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 101 of 105
ASSET PURCHASE AGREEMENT AND BILL OF SALE 

IN WITNESS WHEREOF the Parties have duly executed and delivered this Agreement as of the 

date first written above. 

BUYER: 

THE GAP, INC. 

By: 

Name: 

Title: 

By: 

Name: 

Title: 

 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 68 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 102 of 105
ASSET PURCHASE AGREEMENT AND BILL OF SALE 

IN WITNESS WHEREOF the Parties have duly executed and delivered this Agreement as of the 

date first written above. 

GYMBOREE: 

GYMBOREE GROUP, INC. 

By: 

Name: 

Title: 

AGENT: 

GA RETAIL, INC. 

By: 

Name: 

Title: 

HILCO MERCHANT RESOURCES, LLC 

By: 

Name: 

Title: 

GORDON BROTHERS RETAIL PARTNERS, LLC 

By: 

Name: 

Title: 

TIGER CAPITAL GROUP, LLC 

By: 

Name: 

Title: 

Case 19-30258-KLP Doc 457 Filed 03/03/19 Entered 03/03/19 07:09:43 Desc Main

 Document Page 69 of 139

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 103 of 105
 

([KLELW

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 104 of 105
44512.00001

Dennis F. Dunne, Esq. (admitted pro hac vice) Michael A. Condyles, Esq. (VA 27807) 

Evan R. Fleck, Esq. (admitted pro hac vice) Peter J. Barrett, Esq. (VA 46179) 

Michael W. Price, Esq. (admitted pro hac vice) Jeremy S. Williams, Esq. (VA 77469) 

MILBANK LLP Brian H. Richardson, Esq. (VA 92477) 

55 Hudson Yards KUTAK ROCK LLP 

New York, New York 10001 901 East Byrd Street, Suite 1000 

Telephone: (212) 530-5000 Richmond, Virginia 23219-4071 

Facsimile: (212) 530-5219 Telephone: (804) 644-1700 

Facsimile: (804) 783-6192 

Co-Counsel for Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

) 

In re: ) Chapter 11 

) 

GYMBOREE GROUP, INC., et al.,1 ) Case No. 19-30258 (KLP) 

) 

Debtors. ) (Jointly Administered) 

) 

) 

NOTICE OF CLOSING DATE OF J&J SALE 

WHEREAS on March 4, 2019 the Bankruptcy Court entered the Order (I) Approving The 

Sale Of Certain J&J Assets Free And Clear Of Liens, Claims, Interests And Encumbrances And 

(II) Approving The Assumption And Assignment Of Executory Contracts And Unexpired Leases 

In Connection Therewith; And (III) Granting Related Relief which approved the Sale of the JJ 

Assets pursuant to the Purchase Agreement: 

PLEASE TAKE NOTICE that the Closing Date (as defined in the Purchase Agreement) 

occurred on ________________, 2019.

 

1

 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, 

are: Gymboree Group, Inc. (6587); Gymboree Intermediate Corporation (1473); Gymboree Holding 

Corporation (0315); Gymboree Wholesale, Inc. (6588); Gym-Mark, Inc. (6459); Gymboree Operations, Inc. 

(6463); Gymboree Distribution, Inc. (8669); Gymboree Manufacturing, Inc. (6464); Gymboree Retail Stores, 

LLC (6461); Gym-Card, LLC (5720); and Gymboree Island, LLC (1215). The Debtors’ service address is 

71 Stevenson Street, Suite 2200, San Francisco, California 94105. 

Case 19-30258-KLP Doc 484 Filed 03/04/19 Entered 03/04/19 17:10:20 Desc Main

 Document Page 105 of 105