KE 5302496

Edward O. Sassower, P.C. James H.M. Sprayregen, P.C.

Joshua A. Sussberg, P.C. (admitted pro hac vice) Anup Sathy, P.C.

KIRKLAND & ELLIS LLP Chad J. Husnick, P.C. (admitted pro hac vice)

KIRKLAND & ELLIS INTERNATIONAL LLP Emily E. Geier (admitted pro hac vice)

601 Lexington Avenue KIRKLAND & ELLIS LLP

New York, New York 10022 KIRKLAND & ELLIS INTERNATIONAL LLP

Telephone: (212) 446-4800 300 North LaSalle

Facsimile: (212) 446-4900 Chicago, Illinois 60654

Telephone: (312) 862-2000

-and- Facsimile: (312) 862-2200

Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

TOYS “R” US, INC., et al.,

1

) Case No. 17-34665 (KLP)

)

Debtors. ) (Jointly Administered)

)

DEBTORS’ MOTION

FOR ENTRY OF AN ORDER (I) ESTABLISHING 

BIDDING PROCEDURES FOR THE REMAINING TOYS 

DELAWARE REAL ESTATE ASSETS, (II) APPROVING THE SALE 

OF CERTAIN REAL ESTATE ASSETS, AND (III) GRANTING RELATED RELIEF

The above-captioned debtors and debtors in possession (collectively, the “Debtors”)2

respectfully state as follows in support of this motion (this “Motion”):

 

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting 

Related Relief [Docket No. 78]. The location of the Debtors’ service address is One Geoffrey Way, Wayne, 

New Jersey 07470.

2 A detailed description of the Debtors and their business, and the facts and circumstances supporting the Debtors’ 

chapter 11 cases, are set forth in greater detail in (i) the Declaration of David A. Brandon, Chief Executive Officer 

of Toys “R” Us, Inc., in Support of Chapter 11 Petitions and First Day Motions (the “Brandon Declaration”) and 

(ii) the Declaration of Michael J. Short, Chief Financial Officer of Toys “R” Us, Inc., in Support of First Day 

Motions (the “Short Declaration” and together with the Brandon Declaration, the “First Day Declarations”), filed 

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Relief Requested

1. By this Motion, the Debtors respectfully seek: (I) entry of an order, substantially 

in the form attached hereto as Exhibit A (the “Bidding Procedures Order”); (a) establishing 

bidding procedures, attached to the Bidding Procedures Order as Exhibit 1 (the

“Bidding Procedures”), by which the Debtors will solicit and select the highest or otherwise best 

offer(s) for the sale, or sales (the “Sales”), of any remaining owned real property and commercial 

leases of Toys “R” Us-Delaware, Inc. (”Toys Delaware,” and such assets, the “Remaining Real 

Estate Assets”) at all future auctions of Remaining Real Estate Assets (each, an “Auction”); 

(b) approving the form and manner of notice for any Auction and subsequent sale hearing (each, a 

“Sale Hearing”) attached to the Bidding Procedures Order as Exhibit 2 (the “Auction and Hearing 

Notice”); (c) approving the noticing and procedures for the assumption and assignment of 

executory contracts and unexpired leases for any Auction, including the notice of proposed cure 

amounts, attached to the Bidding Procedures as Exhibit 3 (the “Assignment Notice”); 

(d) approving the form agreements attached to the Bidding Procedures as Exhibit A; (e) 

scheduling an initial Auction and hearing to approve the Sales (the “Sale Hearing”); fe) approving 

procedures for selling certain Remaining Real Estate Assets not sold at the Auctions; and (g) 

granting related relief; (II) following each Sale Hearing, entry of orders (a) authorizing the Sales 

and (b) authorizing the assumption and assignment of certain executory contracts and unexpired 

leases; and (III) related relief.

 

contemporaneously with the Debtors’ voluntary petitions for relief filed under chapter 11 of title 11 of the United 

States Code (the “Bankruptcy Code”), on September 18, 2017 (the “Petition Date”). Capitalized terms used, but 

not otherwise defined in this Motion shall have the meanings ascribed to them in the First Day Declarations.

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Jurisdiction and Venue

2. The United States Bankruptcy Court for the Eastern District of Virginia 

(the “Court”) has 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. The Debtors confirm their consent, pursuant to Rule 7008 of the 

Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), to the entry of a final order by 

the Court in connection with this Motion to the extent that it is later determined that the Court, 

absent consent of the parties, cannot enter final orders or judgments in connection herewith 

consistent with Article III of the United States Constitution.

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

4. The bases for the relief requested herein are sections 105, 363, 503, and 507 of 

the Bankruptcy Code, Bankruptcy Rules 2002, 6004, 6006, and rule 9013-1 of the Local Rules of 

the United States Bankruptcy Court for the Eastern District of Virginia (the “Local 

Bankruptcy Rules”).

Background

I. General Background.

5. As part of the U.S. Wind-Down approved by this Court, the Debtors are in the 

process of selling their real estate assets. This Court already approved procedures and a timeline 

for the sale of certain real property and unexpired leases [Docket No. 2351] (the “Initial Bidding 

Procedures Order”).3 Now as the Debtors are finalizing store closings, they seek approval of 

procedures for the sale of the Remaining Real Estate Assets of Toys Delaware.

 

3 Capitalized terms used but not otherwise defined herein have the meaning ascribe to them in the Initial Bidding 

Procedures Order.

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6. Accordingly, by this Motion, the Debtors seek approval of Bidding Procedures for 

the Remaining Real Estate Assets of Toys Delaware (but not, for the avoidance of doubt, either of 

Toys “R” Us Property Company I, LLC or Toys “R” Us Property Company II, LLC). As described 

more fully in the Debtors’ initial motion seeking Bidding Procedures to approve the sale of certain 

real estate assets [Docket No. 1880] (the “Initial Bidding Procedures Motion”), the Debtors and 

their advisors have conducted Appraisals (as defined in the Initial Bid Procedures Motion) and 

other analyses of the value of their properties. Further, the Debtors will complete the store closings

at all of these properties on or around June 30, 2018. Accordingly, by this Motion, the Debtors, in 

consultation with their advisors and other parties in interest in these chapter 11 cases, propose the 

following Bidding Procedures and notice procedures that will apply to the Sales of all Remaining 

Real Estate Assets of Toys Delaware.

7. The Debtors believe that the proposed Bidding Procedures and various notice 

procedures will help the Debtors capture substantial value for their stakeholders by capitalizing on 

the value of their owned property and/or long-term leases at below-market rates. Selling the 

Remaining Real Estate Assets is a sound exercise of the Debtors’ business judgment. 

Significantly, because the Debtors intend to close all stores on or around June 30, 2018, the Debtors 

must assume or reject such unexpired leases by that time to avoid any additional expenses that 

may be associated with staying in the properties beyond that date and to ensure that the extensions 

of the 365(d)(4) deadline provided by the applicable landlords do not inadvertently expire. The 

Debtors intend to transfer the Real Estate Assets directly from the liquidators conducting the Store 

Closings to the Successful Bidder (as defined herein) to save time and avoid leaving the property 

vacant.

8. The proposed Bidding Procedures are part-and-parcel of a robust marketing process 

that the Debtors are pursuing to maximize the value of those Remaining Real Estate Assets being 

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sold. The Debtors, utilizing the services and expertise of A&G and their other advisors, including 

additional advisors that may be retained as the Debtors deem necessary and advisable to maximize 

value of the real estate sale process, initiated and will continue to implement and foster a 

competitive marketing process. Specifically, on January 31, 2018, A&G sent a marketing flyer, 

attached to the Initial Bidding Procedures Motion as Exhibit B, via e-mail to approximately 

260,000 parties that are known by A&G to be institutional investors, owners of or investors in 

property or leases similar to those being sold, or interested in the particular properties based on 

direct inquiries over the last several months. This marketing flyer served as a “teaser,” highlighting 

the Real Estate Assets (as defined in the Initial Bidding Procedures Motion) that the Debtors 

intended to sell at the initial auction and informing interested parties that a bid deadline and auction 

would be set shortly. Subsequently, the Debtors, A&G, and the Debtors’ other advisors have 

continued to receive inquiries regarding the Remaining Real Estate Assets. A&G has sent e-mail 

blasts, posted on online message boards, and placed advertisements in newspapers and newsletters, 

and will continue these efforts, in order to ensure that as many potential purchasers are informed 

of all Auctions for the Remaining Real Estate Assets as possible. Given the nature of the market 

and A&G’s experience conducting auctions similar to the Auction contemplated herein, A&G is 

confident that its communications and marketing efforts will reach, a substantial portion of likely 

interested bidders and generate a competitive bidding process. Further, given the nature of the 

assets being sold, the nature of general communications between potential bidders, and general 

public awareness and media coverage of these chapter 11 cases and the store closings, the Debtors 

believe that the marketing process will result in a competitive, value-maximizing Auction that will 

inure to the benefit of all stakeholders and maximize the value of the Debtors’ estates. The Debtors 

will provide notice of this Motion to all affected landlords and believe such notice is good and 

sufficient notice of the date of the Auction.

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9. The Debtors believe that based on the size, scale, and geographic distribution of the 

Remaining Real Estate Assets for sale, information learned from potential interested buyers, and 

the advice of the Debtors’ advisors, the Debtors may not be able to sell certain of the Remaining 

Real Estate Assets or may determine, before or after an Auction, that the highest or otherwise best 

bid received for certain Remaining Real Estate Assets would be achieved outside the context of an 

Auction. The Debtors may learn that a particular asset in one area would be substantially more 

valuable to potential buyers if sold as part of a package with other Remaining Real Estate Assets 

in that geographic areas or may determine that the final bid on any particular Remaining Real 

Estate Asset is substantially lower than such asset’s appraised value. Accordingly, the Debtors 

reserve the right to not accept the highest or otherwise best bid at the Auction and to propose a 

process at another date in the future to maximize the value of such property, or to sell any 

Remaining Real Estate Asset or group of Remaining Real Estate Assets with an aggregate purchase 

price less than $5,000,000 without holding an Auction.

II. Summary of the Bidding Procedures and the Bidding Procedures Order.

A. Key Provisions of the Bidding Procedures.

10. To efficiently solicit, receive, and evaluate bids in a fair and accessible manner, the 

Debtors have developed and proposed the Bidding Procedures to govern all future Sales and 

Auctions of the Remaining Real Estate Assets. The Bidding Procedures are designed to encourage 

all entities to put their best bids forward and to maximize the value of the Debtors’ estates. The 

key provisions of the Bidding Procedures are summarized below:4

(a) Qualified Bidders: Only a Qualified Bidder may participate in and make 

subsequent Bids at the Auction. The Debtors shall have the sole right to determine, 

in the exercise of their reasonable business judgment, in consultation with the 

 

4 This summary is qualified in its entirety by the Bidding Procedures attached as Exhibit 1 to the Bidding 

Procedures Order. All capitalized terms used in this Motion but not otherwise defined herein shall have the 

meanings ascribed to such terms in the Bidding Procedures. To the extent there are any conflicts between this 

summary and the Bidding Procedures, the terms of the Bidding Procedures shall govern.

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Consultation Parties, whether a bidder is a Qualified Bidder. A Qualified Bidder 

must (among other requirements set forth in the Bidding Procedures) (i) deliver to 

the Debtors by the Bid Deadline an irrevocable, good faith, and bona fide offer (a 

“Bid”) to purchase all or a portion of the Assets that is a Qualified Bid pursuant to 

the Bidding Procedures; (ii) demonstrate the financial wherewithal to enter into the 

proposed transaction to the satisfaction of the Debtors; and (iii) provide, at the 

Debtors request, adequate assurance of future performance, (which the Qualified 

Bidder agrees may be disseminated to affected landlords if such Qualified Bidders’ 

Bid is determined to be a Qualified Bid), which may include, without limitation, 

information regarding the Qualified Bidders’ financial condition such as tax 

returns, current financial statements, or bank accounts. Bidding Procedures ⁋ C(i).

(b) Qualified Bids: No bid will be a Qualified Bid unless it is made by a Qualified 

Bidder. Bidding Procedures ⁋ C.

(c) Bids for Individual Assets or Combinations of Assets: A Qualified Bid must 

detail which of the Remaining Real Estate Assets up for sale the Qualified Bidder 

proposes to purchase. The Bidding Procedures contemplate that a single bidder or 

group of bidders may purchase all or a portion of the Remaining Real Estate Assets. 

If a bidder or group of bidders submits an offer for a combination of assets, such 

bidder or group of bidders must indicate (i) if it would be willing to purchase any 

of such assets if not sold as a group and, if so, (ii) a schedule indicating the Bid as 

to any individual or sub-group of assets that such bidder would purchase. The 

Debtors, in consultation with the Consultation Parties (to the extent reasonably 

practicable), reserve the right to determine whether to auction any assets as part of 

a group or individually up through and including at the Auction or to conduct an 

Auction of any Remaining Real Estate Asset both individually and as part of a 

group in order to determine which option maximizes value of the assets. Bidding 

Procedures ⁋ C(i)(c).

(d) Committed Financing: A Qualified Bid must contain documentation acceptable 

to the Debtors (in the Debtors’ reasonable business judgment) evidencing that the 

Qualified Bidder has financial resources or committed financing sufficient to close 

the transaction within twenty-one (21) days after the Auction. Bidding Procedures 

⁋ C(i)(f).

(e) Deposit: Contemporaneous with the submission of a Qualified Bid, a Qualified 

Bidder shall tender an earnest money deposit of ten percent (10.0%) of the proposed 

purchase price. Bidding Procedures ⁋ C(ii).

(f) Markup of Applicable Agreement: A Qualified Bid must include an executed 

form of the purchase, assignment, or termination agreement, as applicable, that may 

not deviate substantially from the terms of the applicable form purchase agreement 

attached as Exhibit A to the Bidding Procedures as well as a “redline” to the form 

purchase agreement. Bidding Procedures ⁋ C(i)(a)–(b).

(g) Due Diligence: Any Qualified Bidder may request diligence from the Debtors, and 

the Debtors may grant or deny any such request that they deem to be unreasonable. 

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The Debtors may require such Qualified Bidder to execute a non-disclosure 

agreement prior to providing diligence to such Qualified Bidder. Bidding 

Procedures ⁋ F.

(h) No Contingencies: A Qualified Bid must contain no contingencies to the validity, 

effectiveness, and/or binding nature of the bid, including without limitation, 

contingencies for due diligence and inspection or financing of any kind. Bidding 

Procedures ⁋ C(i)(e).

(i) Irrevocability: A Qualified Bid, if determined to be the Successful Bid or Backup 

Bid, will be irrevocable for a period of thirty (30) days after the conclusion of the 

Auction. Bidding Procedures ⁋ C(i)(h).

(j) As-Is, Where-Is: All bidders must acknowledge and agree that upon closing the 

Debtors shall sell and transfer the assets to the Successful Bidder and the Successful 

Bidder shall accept the assets “AS IS, WHERE IS, WITH ALL FAULTS.” Bidding 

Procedures ⁋ O.

(k) Initial Overbid: Any Qualified Bidder may submit successive bids in minimum 

increments, which will be determined by the Debtors, in consultation with the 

Consultation Parties (to the extent reasonably practicable), at each Auction 

depending on the total dollar value of the Remaining Real Estate Assets being sold 

at the Auction. The minimum increments may be different with respect to each 

asset or group of assets being auctioned. Bidding Procedures ⁋ H(iii)(c).

(l) Closing: The closing of the sale of the Remaining Real Estate Assets will occur no 

later than the Sale Closing Deadline listed in the Auction and Hearing Notice. 

Bidding Procedures ⁋ J.

11. Most importantly, the Bidding Procedures recognize the Debtors’ fiduciary 

obligations to maximize value for the benefit of their estates, and, as such, do not impair the 

Debtors’ ability to consider all potential bids, and preserve the Debtors’ right to modify the Bidding 

Procedures, in consultation with the Consultation Parties, as necessary or appropriate to maximize 

value for the Debtors’ estates.

B. Bid Protections.

12. The Bidding Procedures contemplate that the Debtors, in consultation with the 

Consultation Parties, would be authorized, but not obligated, in an exercise of their business 

judgment, to agree to reimburse the reasonable and documented out-of-pocket fees and expenses 

of one or more Qualified Bidder (each, an “Expense Reimbursement”), and/or agree to pay one or 

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more Qualified Bidders a “work fee” or other similar cash fee (each, a “Work Fee”) if the Debtors 

reasonably determine in their business judgment that any such Expense Reimbursement or Work 

Fee will encourage one or more parties to submit a Qualified Bid or result in a competitive bidding 

and Auction process. The aggregate amount of all Expense Reimbursements and Work Fees may 

not exceed $50,000.00 per Qualified Bidder or $1,000,000.00 in the aggregate, and the Debtors 

shall consult with the Consultation Parties prior to agreeing to any specific Expense 

Reimbursement or Work Fee. 

13. The Bidding Procedures also contemplate that the Debtors, in consultation with the 

Consultation Parties, will be authorized, but not obligated, to, in their business judgment, (a) select 

no more than one Qualified Bidder to act as a stalking horse bidder (a “Stalking Horse Bidder”) in 

connection with the Auction of any Remaining Real Estate Asset or group thereof and (b) in 

connection with any staking horse agreement with a Stalking Horse Bidder, provide a breakup fee 

(the “Breakup Fee” and, collectively with the Expense Reimbursement and the Work Fee, the “Bid 

Protections”) in an amount not to exceed three percent (3%) of the proposed purchase price. The 

amount of any Expense Reimbursement or Work Fee paid to any Stalking Horse Bidder pursuant 

to these Bidding Procedures shall be deducted from the Breakup Fee, if payable. The Debtors 

shall consult with the Consultation Parties prior to agreeing to any specific Bid Protections, 

including the Breakup Fee. For the avoidance of doubt, the Consultation Parties will retain the 

right to object to the payment of any Bid Protections. The Debtors may choose a Stalking Horse 

Bidder after May 25, 2018 until two days prior to the Auction, and will inform the court if a 

Stalking Horse Bidder has been selected and any terms thereto at the hearing to approve the 

Bidding Procedures. The Debtors submit that the opportunity to enter into a Stalking Horse 

Agreement that provides these bid protections will encourage bidders to submit bids and 

participate at the Auction, thereby maximizing value for the Debtors estates. The Debtors intend 

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to only enter into a Stalking Horse Agreement with bid protections after consultation with the 

Debtors’ various advisors and the Consultation Parties.

14. Upon entry of a Stalking Horse Agreement, the Debtors will file and serve notice 

of the proposed Stalking Horse Agreement on the master service list maintained in these cases no 

later than two business days after execution of the Stalking Horse Agreement. The notice will 

include the type and amount of bid protections, if any, any modifications or amendments to the 

Bidding Procedures, a summary of the Stalking Horse Agreement, a copy of the Stalking Horse 

Agreement, and a copy of the relevant Sale Order. The Stalking Horse Bidder will be deemed to 

be a Qualified Bidder and the Stalking Horse Bidder’s bid will be deemed a Qualified Bid.

III. Summary of the Auction and Hearing Notice Procedures.

15. The Debtors may from time to time determine to auction additional properties that 

are not contemplated by this Motion (as may be amended or supplemented). The Debtors believe 

that the Bidding Procedures proposed herein are appropriate for the sale of any of their Real Estate 

Assets and propose to use such Bidding Procedures for future Auctions.

A. Notice of Sale, Auction, and Sale Hearing.

16. The Debtors propose to utilize these Bidding Procedures for future Auctions by 

filing an Auction and Hearing Notice that contains: (a) all relevant dates for the Auction, including 

the Bid Deadline, Notice of Qualified Bids, Auction, Notice of Successful and Backup Bidders, 

Sale Objection Deadline, Hearing date, and Sale Closing Deadline; (b) a list of properties to be 

sold at the Auction; and (c) a copy of the Bidding Procedures approved herein. The Debtors 

reserve the right to amend the list of properties to be sold at the Auction at any time.

17. Parties will have the right to object to the proposed Auction (or related dates) by 

filing an objection (an “Auction Objection”) with the Court by 5:00 p.m. (prevailing Eastern Time) 

fourteen (14) days after the Debtors file the Auction and Hearing Notice and serving it on the 

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Objection Notice Parties (as defined herein). If no Auction Objections are filed and served as set 

forth herein, the Auction (and related dates) will be deemed authorized and approved without any 

further order of the Court and the Debtors are authorized to proceed with the Auction and all 

applicable related dates. If the Debtors receive any Auction Objections that the parties cannot 

consensually resolve, the Debtors will set a hearing with the Court to approve the Auction.

18. Within three (3) days after the Auction is authorized, or as soon as reasonably 

practicable thereafter, following a hearing or deemed authorized by the expiration of the Auction 

Objection period, the Debtors will file and serve on the Notice Parties (as defined herein) an 

Auction and Hearing Notice. The Auction and Hearing Notice will indicate that copies of this 

Motion and any future sale documents, if applicable, can be obtained on the website of the Debtors’ 

claims and noticing agent, Prime Clerk, http://www.cases.primeclerk.com/toysrus (the “Case 

Website”).

19. Within three (3) days after the Auction is authorized following a hearing or deemed 

authorized by the expiration of the Auction Objection period, or as soon as reasonably practicable 

thereafter, the Debtors will place a publication version of the Auction and Hearing Notice for one 

day in The USA Today (National Edition) and the Richmond Times Dispatch, and post it onto the 

Case Website. 

20. The Debtors will be permitted to choose a Stalking Horse Bidder through and 

including two days prior to the Auction.

21. Pursuant to Bankruptcy Rule 2002(a), the Debtors are required to provide their 

creditors with 21 days’ notice of the Sale Hearing. Pursuant to Bankruptcy Rule 2002(c), such 

notice must include the date, time, and place of the Auction and the Sale Hearing, and the deadline 

for filing any objections to the relief requested. The Debtors will file any Auction and Hearing 

Notice at least 21 days prior to the proposed Sale Hearing.

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22. The Debtors submit that the methods of notice described herein comply fully with 

Bankruptcy Rule 2002 and constitute good and adequate notice of the proposed sale of the 

Remaining Real Estate Assets. The Debtors request that such notice be deemed sufficient and 

proper notice of the Sales with respect to known interested parties.

B. Sale Objections.

23. Parties objecting to approval of the proposed Sales must file a written objection 

(each, a “Sale Objection”) so that such Sale Objection is filed with the Court by the date listed in 

the Auction and Hearing Notice, and serve such Sale Objection on the following parties (the 

“Objection Notice Parties”): (a) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New 

York 10022, Attn: Joshua A. Sussberg, P.C., and Kirkland & Ellis LLP, 300 North LaSalle Street, 

Chicago, Illinois 60654, Attn: Chad Husnick, P.C. and Emily Geier, and Kutak Rock LLP, 901 

East Byrd Street, Suite 1000, Richmond, Virginia 23218, Attn: Michael A. Condyles, Peter J. 

Barrett, and Jeremy S. Williams, co-counsel to the Debtors; (b) the Office of the United States 

Trustee for the Eastern District of Virginia, Attn: Robert B. Van Arsdale and Lynn A. Kohen; (c) 

Kramer Levin Naftalis & Frankel LLP, 1177 Avenue of the Americas, New York, New York 

10036, Attn: Adam C. Rogoff, Esq. and Rachael Ringer, Esq., counsel to the Official Committee 

of Unsecured Creditors; (d) Davis, Polk & Wardwell LLP, 450 Lexington Avenue, New York, 

New York 11017, Attn: Marshall Huebner and Kenneth Steinberg, counsel to the DIP ABL Agent; 

and (e) Wachtell, Lipton, Rosen, and Katz, 51 West 52nd Street, New York, New York 10019, 

Attn: Joshua A. Feltman, counsel to the DIP Delaware Term Loan Agent.

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C. Dates and Deadlines of Initial Auction of Remaining Real Estate Assets.

24. The Debtors propose to set the following dates and deadlines for the initial Auction 

of Remaining Real Estate Assets included on Exhibit 5 hereto,5 which the Debtors may adjourn 

from time to time6in order to facilitate a smooth and efficient sale process:

(a) Stalking Horse Date: May 25, 2018, at 5:00 p.m., prevailing Eastern Time, 

until two days prior to the Auction, as the period during which the Debtors 

may choose a Stalking Horse Bidder, if any.

(b) Bid Deadline: May 29, 2018, at 5:00 p.m., prevailing Eastern Time, as the 

deadline by which all bids must be actually received pursuant to the Bidding 

Procedures.

(c) Notice of Qualified Bids: June 5, 2018, at 5:00 p.m., prevailing Eastern 

Time, as the date and time by which the Debtors shall file with the Court a 

notice of Qualified Bids.

(d) Auction: June 11, 2018, at 10:00 a.m., prevailing Eastern Time, as the date 

and time by which the Auction, if needed, would be held at the offices of 

Kirkland & Ellis LLP, located at: 601 Lexington Avenue, New York, NY 

10022.

(e) Notice of Successful and Backup Bidders: if applicable, June 13, 2018, as 

the date by which the Debtors must file with the Court a notice of Successful 

and Backup Bidders (as defined herein).

(f) Sale Objection Deadline: if applicable, June 17, 2018, at 5:00 p.m., 

prevailing Eastern Time, as the deadline to object to the Sale, proposed 

assumption and assignment, and/or to the Successful Bidder’s proposed form 

of adequate assurance of future performance.

(g) Hearing to Designate Successful Bidder(s): June 25, 2018, (or such other 

date as determined by the Court’s availability) is the date set for a hearing at 

which the Debtors shall seek approval from the Court to designate the 

Successful Bidders in connection with the Sales. The Sale Hearing shall be an 

evidentiary hearing on matters relating to the Sales and there will be no further 

bidding at the Sale Hearing. In the event that the Successful Bidder cannot or 

refuses to consummate the Sales, the Debtors may, in accordance with the 

Bidding Procedures, and after consultation with the Consultation Parties, 

 

5 The Debtors reserve their right to amend the list of properties to be sold at any Auction at any time and for any 

reason in their business judgment, in consultation with the Consultation Parties.

6 For the avoidance of doubt, the Debtors may, upon notice to the Consultation Parties and after consultation with 

their advisors, extend any of the proposed dates as to any of the Remaining Real Estate Assets in order to facilitate 

an efficient and value-maximizing process for the portfolio of Remaining Real Estate Assets as a whole.

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designate the Backup Bid to be the new Successful Bid and the Backup Bidder 

to be the new Successful Bidder, and the Debtors shall be authorized, but not 

required, to consummate the transaction with the Backup Bidder without 

further order of the Court.

D. Notice of Successful Bidder.

25. As soon as reasonably practicable after the conclusion of the Auction, the Debtors 

will file on the docket, but not serve, a notice identifying the Successful Bidder(s) (the “Notice of 

Successful and Backup Bidders”), Remaining Real Estate Asset(s), key terms of the agreement, 

and identifying the Backup Bidder(s), substantially in the form attached to the Bidding Procedures 

Order as Exhibit 4. 

IV. Summary of the Assumption Procedures.

26. The Debtors propose the procedures set forth below for notifying counterparties 

(the “Lease Counterparties”) to unexpired leases (the “Leases”) of proposed cure amounts in the 

event the Debtors determine to assume and assign such contracts or leases in connection with a 

sale, liquidation, or other disposition.

A. Assumption and Assignment Procedures.

27. On a date no later than ten days prior to the Sale Hearing, the Debtors shall file with 

the Court a notice in the form attached to the Bidding Procedures Order as Exhibit 3 (the 

“Assumption and Assignment Notice”) to assume one or more Leases pursuant to section 365 of 

the Bankruptcy Code, which shall set forth, among other things: (i) the Lease or Leases to be 

assumed; (ii) the names and addresses of the counterparties to such Leases; (iii) the identity of the 

proposed assignee of such Leases (the “Assignee”), if applicable; (iv) the effective date of the 

assumption for each such Lease (the “Assignment Date”); (v) the proposed cure amount (the “Cure 

Costs”), if any for each such Lease; and (vi) the deadlines and procedures for filing objections to 

the Assumption and Assignment Notice (as set forth below). 

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28. The Debtors will cause the Assumption and Assignment Notice to be served (i) by 

overnight delivery service upon the Lease Counterparties affected by the Assumption and 

Assignment Notice at the address set forth in the notice provision of the applicable Lease (and 

their counsel, if known) and (ii) by first class mail, email, or fax upon the Notice Parties. 

29. To the extent the Debtors seek to assume and assign a lease of non-residential real 

property, the Debtors will provide by overnight delivery to the applicable Lease Counterparty (and 

their counsel, if known), within 24 hours of the Qualified Bid Deadline upon request by a Lease 

Counterparty that has submitted a valid ROFR Notice (as defined in the Bidding Procedures) and 

within 24 hours upon request by any other Lease Counterparty following the filing of the Notice 

of Successful and Backup Bidders, evidence that the proposed assignee of the lease has the ability 

to comply with the requirements of adequate assurance of future performance required under 

sections 365(b)(1) or 365(b)(3), as applicable, including the Adequate Assurance Package (as 

defined in the Bidding Procedures) on a confidential basis.

30. Parties objecting to a proposed assumption and assignment and/or to a Successful 

Bidder’s proposed form of adequate assurance of future performance must file a written objection 

with the Court by the Sale Objection Deadline (each, an “Assignment Objection”) and serve such 

Assignment Objection on the Objection Notice Parties.

31. If no objection to the assumption of any Lease is timely filed, each Lease shall be 

assumed as of the Assignment Date set forth in the applicable Assignment Notice or such other 

date as the Debtors and the Lease Counterparties agree and the proposed cure amount shall be 

binding on all Lease Counterparties and no amount in excess thereof shall be paid for cure 

purposes; provided, however that the Assignment Date for a lease of nonresidential real property 

shall not occur earlier than the date the Debtors filed and served the applicable Assumption and 

Assignment Notice.

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32. If the Lease Counterparty does not file and serve an Assignment Objection in a 

manner that is consistent with the requirements set forth herein, and absent a subsequent order of

the Court in connection with such objection establishing an alternative Cure Cost or an agreement 

between the Debtors and the Lease Counterparty resolving such objection, (a) the Cure Costs, if 

any, set forth in the Notice of Assumption and Assignment shall be controlling, notwithstanding 

anything to the contrary in any Assigned Lease or any other document, and (b) the Lease 

Counterparty will be deemed to have consented to the assumption and assignment of the Assigned 

Lease and the Cure Costs, if any, and will be forever barred from asserting any other claims related 

to such Assigned Lease against the Debtors or the Successful Bidder, or the property of any of 

them.

33. The inclusion of an Assigned Lease on the Notice of Assumption and Assignment 

will not: (a) obligate the Debtors to assume any Assigned Lease listed thereon or the Successful 

Bidder to take assignment of such Assumed Lease; or (b) constitute any admission or agreement 

of the Debtors that such Assigned Leases an executory contract. Only those Assumed Leases that 

are included on a schedule of assumed and acquired contracts attached to a final asset purchase 

agreement with a Successful Bidder (including amendments or modifications to such schedules in 

accordance with such asset purchase agreement) will be assumed and assigned to the applicable 

Successful Bidder. No Assigned Lease shall be assumed absent closing on the assignment thereof 

to the applicable Successful Bidder.

34. With regard to Leases to be assigned, pursuant to section 363(f) of the Bankruptcy 

Code, the assignment of any Lease shall: (a) be free and clear of (i) all liens (and any liens shall 

attach to the proceeds in the same order and priority, subject to all existing defenses, claims, 

setoffs, and rights) and (ii) any and all claims (as that term is defined in section 101(5) of the 

Bankruptcy Code), obligations, demands, guarantees of or by the Debtors, debts, rights, 

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contractual commitments, restrictions, interests, and matters of any kind and nature, whether 

arising prior to or subsequent to the commencement of these chapter 11 cases, and whether 

imposed by agreement, understanding, law, equity, or otherwise (including, without limitation, 

claims and encumbrances that purport to give to any party a right or option to effect any forfeiture, 

modification, or termination of the interest of any Debtor or Assignee, as the case may be, in the 

Lease(s) (but only in connection with the assignment by the Debtor to the Assignee)), provided 

that any payment on account of such liens, claims, interests, and encumbrances are subject to 

further order of the Court, and (b) constitutes a legal, valid, and effective transfer of such Lease(s) 

and vests the applicable Assignee with all rights, titles, and interests to the applicable Lease(s). 

For the avoidance of doubt, all provisions of the applicable assigned Lease, including any 

provision limiting future assignment, shall be binding on the applicable Assignee after 

consummation of the assignment of such Lease by the Debtors to the Assignee.

V. Procedures for Unsold Property.

35. If the Debtors determine that holding an Auction with respect to a particular 

Remaining Real Estate Asset would not result in the highest or otherwise best offer for such asset, 

or if the Debtors receive no bids on certain properties prior to the close of the Auction, or if the 

Debtors determine (in consultation with the Consultation Parties) that the highest or otherwise best 

bid at the Auction will not, in the Debtors’ business judgment (in consultation with the 

Consultation Parties) maximize the value of the Remaining Real Estate Asset(s) being sold, the 

Debtors shall follow the following procedures (the “Non-Auction Sale Procedures”) to sell such 

Remaining Real Estate Assets (the “Non-Auction Real Estate Assets”):

a. With regard to sales or transfers of Non-Auction Real Estate Assets in any 

individual transaction or series of related transactions to a single buyer or 

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group of related buyers with a sale price7less than or equal to 

$5,000,000.00:

i. subject to the procedures set forth herein, the Debtors (in 

consultation with the Consultation Parties) are authorized to 

consummate such transaction(s) without further order of the Court 

if the Debtors determine in the reasonable exercise of their business 

judgment that such sales or transfers are in the best interests of their 

estates and the sale price is higher or otherwise better than any bid 

received at the Auction, if applicable;

ii. subject to the Sale Order and any conditions therein, any such 

transactions shall be deemed final and fully authorized by the Court 

and free and clear of liens, with such liens attaching only to the sale 

proceeds with the same validity, extent, and priority as immediately 

prior to the sale or transfer;

iii. the Debtors shall cause, at least fourteen (14) days prior to the 

proposed closing date of such sale or effectuating such transfer, a 

notice of such sale (a “Non-Auction Sale Notice”) to be filed with 

the Court and served on: (a) the Office of the United States Trustee 

for the Eastern District of Virginia, Attn: Robert B. Van Arsdale 

and Lynn A. Kohen; (b) Kramer Levin Naftalis & Frankel LLP, 

1177 Avenue of the Americas, New York, New York 10036, Attn: 

Adam C. Rogoff, Esq. and Rachael Ringer, Esq., counsel to the 

Official Committee of Unsecured Creditors; (c) the DIP ABL Agent 

and the advisors and counsel thereto; (d) the DIP Delaware Term 

Loan Agent and the advisors and counsel thereto; (e) counsel to the 

administrative agent for the prepetition Secured Term Loan B 

Facility; (f) the United States Attorney’s Office for the Eastern 

District of Virginia; (g) the office of the attorneys general for the 

states in which the Debtors operate; (h) the Internal Revenue 

Service; (i) the United States Securities and Exchange Commission; 

(j) any party that has requested notice pursuant to Bankruptcy Rule 

2002, (k) any Qualified Bidder who placed a bid on such property 

at the Auction, (l) any counterparty or counterparties to any Lease(s) 

proposed to be sold or transferred, (collectively, the “Non-Auction 

Sale Notice Parties”);

iv. the content of the Non-Auction Sale Notice shall consist of: (A) an 

identification of the Non-Auction Real Estate Assets being sold or 

transferred; (B) an identification of the purchaser of the assets; 

(C) the purchase price to be paid for the Non-Auction Real Estate 

Assets; (D) the marketing or sales process, including any 

 

7 For purposes of these Non-Auction Sale Procedures, “sale price” shall refer to the bidder’s proposed purchase 

price as agreed to by the Debtors (in consultation with the Consultation Parties).

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commissions to be paid to third parties, used to sell the assets; and 

(E) the significant terms of the sale or transfer agreement;8

v. if, within fourteen (14) days after receipt of such Non-Auction Sale 

Notice by any of the Non-Auction Sale Notice Parties (or such 

additional time period as my be agreed to by the Debtors), (A) no 

written objections are filed with the Court, and (B) the Debtors do 

not receive any competing bids for any of the Non-Auction Real 

Estate Assets being sold (a “Competing Bid”), the Debtors are 

authorized to immediately consummate such sale or transfer; 

vi. if any Non-Auction Sale Notice Party files a written objection to any 

such sale or transfer with the Court within fourteen (14) days (or 

such additional time period as my be agreed to by the Debtors) after 

receipt of such Non-Auction Sale Notice, the applicable NonAuction Real Estate Asset shall only be sold or transferred upon 

either (A) the consensual resolution of the objection by the parties 

or (B) further order of the Court after notice and a hearing; and

vii. if the Debtors receive a Competing Bid, the Debtors will evaluate 

such Competing Bid, in consultation with the Consultation Parties, 

and hold an Auction between the initial purchaser and the competing 

bidder to determine the higher or otherwise better bid. The Debtors 

shall be authorized to enter into a sale agreement with the successful 

bidder at the Auction without further order of this Court.

b. To the extent the Debtors seek to assume and assign a lease of 

non-residential real property, the Debtors will, at the request of the 

applicable lease counterparty, provide evidence to such applicable lease 

counterparty (and their counsel, if known) within seven (7) days of the 

Non-Auction Sale Notice demonstrating that the assignee of the lease has 

the ability to comply with the requirements of adequate assurance of future 

performance to the extent required under sections 365(b)(1) or 365(b)(3), 

as applicable.

c. These Non-Auction Sale Procedures shall not apply to any sale or transfer 

to an insider, Committee member, or lender of the Debtors.

 

8 A copy of the definitive agreement for the applicable Non-Auction Real Estate Assets shall be provided promptly 

to any Non-Auction Sale Notice Parties upon request.

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Basis for Relief

I. The Bidding Procedures are Fair, Designed to Maximize the Value Received for the 

Assets, and an Exercise of the Debtors’ Reasonable Business Judgment.

36. Courts have made clear that a debtor’s business judgment is entitled to substantial 

deference with respect to the procedures to be used in disposing of an estate’s assets. See, e.g., In 

re Trilogy Dev. Co., LLC, 2010 Bankr. LEXIS 5636, at *3–4 (Bankr. W.D. Mo. 2010) (holding 

that section 363 of the Bankruptcy Code permits the debtor to sell their assets if a sound business 

purpose exists); In re Channel One Commc’ns, Inc., 117 BR 493 (Bankr. E.D. Mo. 1990) (same); 

In re Schipper, 933 F.2d 513, 515 (7th Cir. 1991) (“Under Section 363, the debtor in possession 

can sell property of the estate . . . if he has an ‘articulated business justification.’”) (citations 

omitted); see also In re Farmland Indus., Inc., 294 B.R 855, 881 (Bankr. W.D. Mo. 2003) (holding 

that courts in this district are reluctant to interfere with corporate decisions unless “it is made clear 

that those decisions are, inter alia, clearly erroneous, made arbitrarily, are in breach of the officers' 

and directors' fiduciary duty to the corporation, are made on the basis of inadequate information 

or study, are made in bad faith, or are in violation of the Bankruptcy Code”); In re Integrated Res., 

Inc., 147 B.R. 650, 656–57 (S.D.N.Y. 1992) (noting that bidding procedures that have been 

negotiated by a trustee are to be reviewed according to the deferential “business judgment” 

standard, under which such procedures and arrangements are “presumptively valid”).

37. The paramount goal in any proposed disposition of property of the estate is to 

maximize the proceeds received by the estate. See In re Edwards, 228 B.R. 552, 561 (Bankr. E.D. 

Pa. 1998) (“The purpose of procedural bidding orders is to facilitate an open and fair public sale 

designed to maximize value for the estate.”); In re Food Barn Stores, Inc., 107 F.3d 558, 564–65 

(8th Cir. 1997) (in bankruptcy sales, “a primary objective of the Code [is] to enhance the value of 

the estate at hand”); In re Integrated Res., Inc., 147 B.R. at 659 (“[I]t is a well-established principle 

of bankruptcy law that the objective of the bankruptcy rules and the trustee’s duty with respect to 

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such sales is to obtain the highest price or greatest overall benefit possible for the estate.”) 

(citations omitted).

38. To that end, courts uniformly recognize that procedures intended to enhance 

competitive bidding are consistent with the goal of maximizing the value received by the estate 

and therefore are appropriate in the context of bankruptcy transactions. See, e.g., In re Integrated 

Res., Inc., 147 B.R. at 659 (bidding procedures “are important tools to encourage bidding and to 

maximize the value of the debtor’s assets”); In re Fin. News Network, Inc., 126 B.R. 152, 156 

(Bankr. S.D.N.Y. 1991) (“court-imposed rules for the disposition of assets . . . [should] provide an 

adequate basis for comparison of offers, and [should] provide for a fair and efficient resolution of 

bankrupt estates”).

39. The Debtors believe that the Bidding Procedures will promote active bidding from 

seriously interested parties and will elicit the highest or otherwise best offer available for the 

Remaining Real Estate Assets offered for sale. The Bidding Procedures will allow the Debtors to 

conduct the Sales in a controlled, fair, and open fashion that will encourage participation by 

financially capable bidders who will offer the best package for the Remaining Real Estate Assets 

and who can demonstrate the ability to close the transaction. In particular, the Bidding Procedures 

contemplate an open auction process with minimum barriers to entry and provide potential bidding 

parties with sufficient time to perform due diligence and acquire the information necessary to 

submit a timely and well-informed bid.

40. At the same time, the Bidding Procedures provide the Debtors with a robust, final 

opportunity to consider competing bids and select the highest or otherwise best offer related to the 

Sales, while preserving the Debtors’ right to not sell any particular Remaining Real Estate Asset 

if the Debtors do not believe that such a sale on the terms received at Auction would maximize the 

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value of the asset. As such, creditors of the Debtors’ estates can be assured that the consideration 

obtained will be fair and reasonable in light of the circumstances and at or above market-value.

41. The Debtors submit that the Bidding Procedures will encourage competitive 

bidding, are appropriate under the relevant standards governing auction proceedings and bidding 

incentives in bankruptcy proceedings, and are consistent with other procedures previously 

approved by this Court. Moreover, similar procedures in complex chapter 11 cases have been 

previously approved by the Court. See, e.g., In re Toys “R” Us, Inc., No. 17-34665 (KLP) (Bankr. 

E.D. Va. Mar. 23, 2018); In re RoomStore, Inc., No. 11–37790 (DOT) (Bankr. E.D. Va. Jan. 3, 

2012); In re Movie Gallery, Inc., No. 10–30696 (DOT) (Bankr. E.D. Va. Oct. 27, 2010); In re 

LandAmerica Fin. Grp., Inc., No. 08–35994 (KRH) (Bankr. E.D. Va. April 16, 2009); In re Circuit 

City Stores, Inc., No. 08–35653 (KRH) (Bankr. E.D. Va. Mar. 3, 2009); In re S & K Famous 

Brands, Inc., No. 09–30805 (KRH) (Bankr. E.D. Va. Feb. 9, 2009); In re Chesapeake Corp., No. 

08–36642 (DOT) (Bankr. E.D. Va. Jan. 20, 2009).

42. Accordingly, for all of the foregoing reasons, the Debtors believe that the Bidding 

Procedures: (a) will encourage robust bidding for the Remaining Real Estate Assets; (b) are 

consistent with other procedures previously approved by courts in this and other districts; and 

(c) are appropriate under the relevant standards governing auction proceedings and bidding 

incentives in bankruptcy proceedings and should be approved.

II. The Bid Protections Have a Sound Business Purpose and Should be Approved.

43. The Debtors are also seeking authority, but not direction, to offer customary bid 

protections. The use of a stalking horse in a public auction process for dispositions pursuant to 

section 363 of the Bankruptcy Code is a customary practice in chapter 11 cases, as the use of a 

stalking horse bid is, in many circumstances, the best way to maximize value in an auction process 

by “establish[ing] a framework for competitive bidding and facilitat[ing] a realization of that 

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value.” Official Comm. of Unsecured Creditors v. Interforum Holding LLC, 2011 WL 2671254, 

*1 (E.D. Wis. July 7, 2011); see also AgriProcessors, Inc. v. Fokkena (In re Tama Beef Packing, 

Inc.), 321 B.R. 496, 497–98 (B.A.P. 8th Cir. 2005). As a result, stalking horse bidders often require 

break-up fees and, in many cases, other forms of bid protections as an inducement for “setting the 

floor at auction, exposing its bid to competing bidders, and providing other bidders with access to 

the due diligence necessary to enter into an asset purchase agreement.” Interforum Holding, 2011 

WL 2671254, at *1 (citations omitted). Thus, the use of bid protections has become an established 

practice in chapter 11 cases.

44. Indeed, break-up fees and other forms of bid protections are a normal and, in many 

cases, necessary, component of significant dispositions conducted under section 363 of the 

Bankruptcy Code. “Break-up fees are important tools to encourage bidding and to maximize the 

value of the debtor’s assets . . . In fact, because the . . . corporation has a duty to encourage bidding, 

break-up fees can be necessary to discharge [such] duties to maximize value.” In re Integrated 

Res., Inc., 147 B.R. 650, 659–60 (S.D.N.Y. 1992) (emphasis added). Specifically, bid protections 

may be necessary to convince a white knight bidder to enter the bidding by providing some form 

of compensation for the risks that it is undertaking. Id. at 660–61 (bid protections can prompt 

bidders to commence negotiations and “ensure that a bidder does not retract its bid”); In re Hupp 

Int’l Indus., Inc., 140 B.R. 191, 194 (Bankr. N.D. Ohio 1992) (“[W]ithout such fees, bidders would 

be reluctant to make an initial bid for fear that their first bid will be shopped around for a higher 

bid from another bidder who would capitalize on the initial bidder’s . . . due diligence.”).

45. As a result, courts routinely approve bid protections in connection with proposed 

bankruptcy sales where a proposed fee or reimbursement provides a benefit to the estate. See In 

re Wintz Cos., 230 B.R. 840, 847 (B.A.P. 8th Cir. 1999) (holding that bid protections “benefitted 

the estate rather than chilled bidding); In re O’Brien Envtl. Energy, Inc., 181 F.3d 527 (3d Cir. 

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1999). The Debtors believe that the ability to offer bid protections should they deem it necessary 

and appropriate is in the best interests of the Debtors’ estates and their creditors, as the Stalking 

Horse Bidder will establish a floor for further bidding that may increase the consideration for the 

Sales. 

46. If the bid protections are paid, it likely will be because the Debtors received higher 

or otherwise superior Qualified Bids for a Remaining Real Estate Asset or group thereof. In short, 

the proposed bid protections are fair and reasonable under the circumstances because they 

constitute a “fair and reasonable percentage of the proposed purchase price” and are “reasonably 

related to the risk, effort, and expenses of the prospective purchaser.” In re Integrated Res., Inc., 

147 B.R. at 662 (approving a breakup fee of 1.6 percent of the proposed purchase price); see also 

Tama Beef, 321 B.R. at 498 (noting that breakup fees are “usually limited to one to four percent 

of the purchase price”). Similar breakup fees have been approved by this Court in other complex 

chapter 11 cases. See, e.g., In re Patriot Coal Corp., No. 15-32450 (KLP) (Bankr. E.D. Va. June 

25, 2015) (approving breakup fee of up to 3.0% of the purchase price); In re James River Coal 

Co., No. 14-31848 (KRH) (Bankr. E.D. Va. May 9, 2014) (approving breakup fee of up to 3.0% 

of the purchase price); In re Movie Gallery, Inc., No. 10-30696 (DOT) (Bankr. E.D. Va. Oct. 27, 

2010) (approving breakup fee of approximately 2.8% of the purchase price); In re S & K Famous 

Brands, Inc., No. 09-30805 (KRH) (Bankr. E.D. Va. Feb. 9, 2009) (approving breakup fee of 

approximately 3.1% of the purchase price); In re Chesapeake Corp., No. 08-36642 (KLP) (Bankr. 

E.D. Va. Jan. 20, 2009) (approving breakup fee of approximately 3.3% of the purchase price). 

Accordingly, the Debtors should be granted the authority, but not direction, to enter into bid 

protections.

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III. The Sales Should Be Approved as an Exercise of Sound Business Judgment.

47. Section 363(b)(1) of the Bankruptcy Code authorizes a bankruptcy court, after 

notice and a hearing, to authorize a debtor to “use, sell, or lease, other than in the ordinary course 

of business, property of the estate.” 11 U.S.C. § 363(b)(1). To approve a use, sale or lease of 

property other than in the ordinary course of business, the court must find “some sound business 

purpose” that satisfies the business judgment test. See In re W.A. Mallory Co., 214 B.R. 834, 836 

(Bankr. E.D. Va. 1997); see also In re Glover, No. 09-74787 at *4 (SCS) (Bankr. E.D. Va. 

Mar. 31, 2010) (“The standard in this Circuit is whether the debtor in possession has exercised 

sound business judgment”) (citing Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, 

Inc., 756 F.2d 1043, 1046 (4th Cir. 1985)). Courts generally show great deference to a debtor’s 

decisions when applying the business judgment standard. See In re Alpha Nat. Res., Inc., 546 B.R. 

348, 356 (Bankr. E.D. Va. 2016) (“Courts apply the deferential business judgment test when 

analyzing transactions under § 363(b)(1)”). Deference to a debtor’s business judgment is 

inappropriate only if such business judgment is “so manifestly unreasonable that it could not be 

based on sound business judgment, but only on bad faith, or whim or caprice.” Lubrizol Enters., 

Inc. v. Richmond Metal Finishers, Inc., 756 F.2d 1043, 1047 (4th Cir. 1985).

48. Once the Debtors articulate a valid business justification, “[t]he business judgment 

rule is a presumption that in making the business decision the directors of a corporation acted on 

an informed basis, in good faith, and in the honest belief that the action was in the best interests of 

the company.” In re S.N.A. Nut Co., 186 B.R. 98, 102 (Bankr. N.D. Ill 1995) (citations omitted); 

In re Filene’s Basement, LLC, 11-13511 (KJC), 2014 WL 1713416, at *12 (Bankr. D. Del. Apr. 

29, 2014) (“If a valid business justification exists, then a strong presumption follows that the 

agreement at issue was negotiated in good faith and is in the best interests of the estate”) (citations 

omitted); Integrated Resources, 147 B.R. at 656; In re Johns-Manville Corp., 60 B.R. 612, 615–

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16 (Bankr. S.D.N.Y. 1986) (“a presumption of reasonableness attaches to a Debtor’s management 

decisions.”).

A. A Sound Business Purpose Exists for the Sales.

49. As set forth above, the Debtors have a sound business justification for the Sales. 

First, the Debtors believe the Sales will maximize the Remaining Real Estate Assets’ value through 

a competitive marketing and auction process. The Sales will be subject to competing bids, 

enhancing the Debtors’ ability to receive the highest or otherwise best value for the Assets. 

Consequently, the ultimately successful bid or bids, after being subject to a further “market check”

in the form of the Auction, will constitute, in the Debtors’ reasonable business judgment, the 

highest or otherwise best offer for the Remaining Real Estate Assets and will provide a greater 

recovery for their estates than any known or practicably available alternative. See, e.g., In re Trans 

World Airlines, Inc., No. 01-00056, 2001 WL 1820326, at *4 (Bankr. D. Del. 2001) (while a 

“section 363(b) sale transaction does not require an auction procedure . . . the auction procedure 

has developed over the years as an effective means for producing an arm’s length fair value 

transaction.”); see also In re Wintz Cos., 219 F.3d 807, 813 (8th Cir. 2000) (holding that an auction 

procedure for the disposition of the debtor’s property can be structured to “maximize the value of 

estate property”). Further, the Debtors are reserving their rights to not enter into a Sale if the 

Debtors believe in their reasonable business judgment that entry into any such Sale will not 

maximize the value of the Remaining Real Estate Asset(s) being considered.

50. Thus, the Debtors submit that any Successful Bidder’s bid, which may include a 

Stalking Horse Agreement, will constitute the highest or otherwise best offer for the Remaining 

Real Estate Assets and will provide a greater recovery for the Debtors’ estates than would be 

provided by any other available alternative. As such, the Debtors’ determination to sell the 

Remaining Real Estate Assets through an Auction process and to enter into the Stalking Horse 

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Agreement will be a valid and sound exercise of the Debtors’ business judgment. The Debtors 

will submit evidence at the Sale Hearing to support these conclusions. Therefore, the Debtors 

request that the Court make a finding that the proposed Sale(s) are a proper exercise of the Debtors’ 

business judgment and are rightly authorized.

B. The Debtors Will Provide Adequate and Reasonable Notice of the Sales.

51. As described above, the Auction and Hearing Notice: (a) will be served in a manner 

that provides adequate notice of the date, time, and location of the Sale Hearing; (b) informs parties 

in interest of the deadlines for objecting to the Sales or the assumption and assignment of the 

Assumed Leases; and (c) otherwise includes all information relevant to parties interested in or 

affected by the Sale(s). Significantly, the form and manner of the Auction and Hearing Notice 

will have been approved by the Court pursuant to the Bidding Procedures Order after notice and a 

hearing before it is served on parties in interest.

C. The Sales and Purchase Prices Will Reflect a Fair Market Value Sale.

52. It is well settled that, where there is a court-approved auction process, a full and 

fair price is presumed to have been obtained for the assets sold, as the best way to determine value 

is exposure to the market. See Bank of Am. Nat’l Trust & Sav. Ass’n. v. 203 N. LaSalle St. P’ship, 

526 U.S. 434, 457 (1999) (explaining that the “best way to determine value is exposure to a 

market”); see also In re Wintz Cos., 219 F.3d 807, 813 (8th Cir. 2000) (holding that an auction 

procedure for the disposition of the debtor’s property can be structured to “maximize the value of 

estate property”). The process proposed here will allow the market to set a value for any Sale(s).

D. The Sales Are Proposed in Good Faith and Without Collusion, and Any 

Successful Bidder Will Be a Good-Faith Purchaser.

53. The Debtors request that the Court find that the Successful Bidder will be entitled 

to the benefits and protections provided by section 363(m) of the Bankruptcy Code in connection 

with the Sale(s).

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28

54. Section 363(m) of the Bankruptcy Code provides in pertinent part:

[t]he reversal or modification on appeal of an authorization under 

subsection (b) or (c) of this section of a sale or lease or property does 

not affect the validity of a sale or lease under such authorization to 

an entity that purchased or leased such property in good faith, 

whether or not such entity knew of the pendency of the appeal, 

unless such authorization and such sale or lease were stayed pending 

appeal.

11 U.S.C. § 363(m). 

55. Section 363(m) of the Bankruptcy Code thus protects the purchaser of assets sold 

pursuant to section 363 of the Bankruptcy Code from the risk that it will lose its interest in the 

purchased assets if the order allowing the sale is reversed on appeal, as long as such purchaser 

leased or purchased the assets in “good faith.” While the Bankruptcy Code does not define “good 

faith,” courts have held that a purchaser shows its good faith through the integrity of its conduct 

during the course of the sale proceedings, finding that where there is a lack of such integrity, a 

good-faith finding may not be made. See, e.g., In re Abbotts Dairies of Pa., Inc., 788 F.2d 143, 

147 (3d Cir. 1986) (“Typically, the misconduct that would destroy a [buyer’s] good faith status at 

a judicial sale involves fraud, collusion between the [proposed buyer] and other bidders or the 

trustee, or an attempt to take grossly unfair advantage of other bidders.”); In re Paulson, 276 F.3d 

389, 392 (8th Cir. 2002); In re Trism, Inc., 328 F.3d 1003, 1006 (8th Cir. 2003); In re Sasson 

Jeans, Inc., 90 B.R. 608, 610 (S.D.N.Y. 1988) (same). The Debtors submit that the Successful 

Bidder will be deemed a “good faith purchaser” within the meaning of section 363(m) of the 

Bankruptcy Code, and any Stalking Horse Agreement, or any marked versions thereof, is a 

good-faith agreement on arm’s-length terms entitled to the protections of section 363(m) of the 

Bankruptcy Code.9

 

9 The Debtors believe that a finding of good faith within the meaning of section 363(m) of the Bankruptcy Code is 

appropriate for the Successful Bidder. Pursuant to the Bidding Procedures, the Successful Bidder will have had 

to present a proposal in accordance with the Bidding Procedures. In addition, the Debtors will not choose as the 

Successful Bidder or Backup Bidder (as defined in the Bidding Procedures) any entity whose good faith under 

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56. First, as set forth in more detail above, the consideration to be received by the 

Debtors pursuant to the Sales will be substantial, fair, and reasonable. Second, any sale agreement 

with the Successful Bidder will be the culmination of a competitive Auction in which the parties 

will presumably be represented by counsel and all negotiations will be conducted on an arm’slength, good-faith basis. Third, there will be no indication of any “fraud, collusion between the 

purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other 

bidders” or similar conduct that would cause or permit the Sales to be avoided under section 363(n) 

of the Bankruptcy Code. In re Abbotts Dairies of Pa., Inc., supra. And, with respect to potential 

bidders, the Bidding Procedures are designed to ensure that no party is able to exert undue 

influence over the process. Fourth, any Successful Bidder’s offer will have been evaluated and 

approved by the Debtors in consultation with their advisors. Accordingly, the Debtors believe that 

the Successful Bidder and Stalking Horse Agreement (or marked version thereof) will be should 

to the full protections of section 363(m) of the Bankruptcy Code.

E. The Sales Should be Approved “Free and Clear” Under Section 363(f).

57. Section 363(f) of the Bankruptcy Code permits a debtor to sell property free and 

clear of another party’s interest in the property if: (a) applicable nonbankruptcy law permits such 

a free and clear sale; (b) the holder of the interest consents; (c) the interest is a lien and the sale 

price of the property exceeds the value of all liens on the property; (d) the interest is the subject of 

a bona fide dispute; or (e) the holder of the interest could be compelled in a legal or equitable 

proceeding to accept a monetary satisfaction of its interest. See 11 U.S.C. § 363(f).

 

section 363(m) of the Bankruptcy Code can reasonably be doubted, and will be prepared to present the Court with 

sufficient evidence to allow the Court to find that the “good faith” standard of section 363(m) of the Bankruptcy 

Code has been satisfied.

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58. Section 363(f) is drafted in the disjunctive. Thus, satisfaction of any of the 

requirements enumerated therein will suffice to warrant the sale of the Debtors’ Assets free and 

clear of all liens, claims, rights, interests, charges, or encumbrances (“Interests”), except with 

respect to any Interests that may be assumed liabilities under a Successful Bidder’s purchase 

agreement. See In re Kellstrom Indus., Inc., 282 B.R. 787, 793 (Bankr. D. Del. 2002) (“[I]f any 

of the five conditions are met, the debtor has the authority to conduct the sale free and clear of all 

liens.”).

59. The Debtors submit that any interest that will not be an assumed liability satisfies 

or will satisfy at least one of the five conditions of section 363(f) of the Bankruptcy Code, and that 

any such Interest will be adequately protected by either being paid in full at the time of closing, or 

by having it attach to the net proceeds of the Sales, subject to any claims and defenses the Debtors 

may possess with respect thereto. The Debtors accordingly request authority to convey the 

Remaining Real Estate Assets free and clear of all Interests, with any such interests to attach to the 

proceeds of the Sales, provided that any payment on account of such liens, claims, interests, and 

encumbrances are subject to further order of the Court,.10

IV. The Form and Manner of the Auction and Hearing Notice Should Be Approved.

60. Pursuant to Bankruptcy Rule 2002(a), the Debtors are required to provide creditors 

with 21 days’ notice of the Sale Hearing. Pursuant to Bankruptcy Rule 2002(c), such notice must 

include the time and place of the Auction and the Sale Hearing and the deadline for filing any 

objections to the relief requested herein. 

61. As noted above, within three days of entry of authorization of the Auction and 

Hearing Notice, or as soon as reasonably practicable thereafter, the Debtors will serve the Auction 

 

10 The Debtors do not seek authority to sell any non-Debtor property free and clear pursuant to section 363(f) of the 

Bankruptcy Code, but rather will assign such interests consistent with their underlying property documents.

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and Hearing Notice upon the Notice Parties, and also publish an abbreviated version of the Auction 

and Hearing Notice in The Wall Street Journal (National Edition) and the Richmond TimesDispatch, and the Case Website.

62. The Debtors submit that notice of this motion and the related hearing to consider 

entry of the Bidding Procedures Order, coupled with service of the Auction and Hearing Notice, 

and the Assumption and Assignment Procedures as provided for herein, constitutes good and 

adequate notice of the Sales and the proceedings with respect thereto in compliance with, and 

satisfaction of, the applicable requirements of Bankruptcy Rule 2002. Accordingly, the Debtors 

request that the Court approve the form and manner of the Auction and Hearing Notice.

V. The Assumption Procedures Are Appropriate and Should Be Approved.

63. As set forth above, the Sales contemplate the assumption and assignment of the 

Assumed Leases to the Successful Bidder. In connection with this process, the Debtors believe it 

is necessary to establish a process by which: (a) the Debtors and Assigned Lease Counterparties 

can reconcile cure obligations, if any, in accordance with section 365 of the Bankruptcy Code; and 

(b) such counterparties can object to the assumption and assignment of the Assumed Leases and/or 

related cure amounts.

64. As set forth in the Bidding Procedures Order, the Debtors also request that any party 

that fails to object to the proposed assumption and assignment of any Assigned Lease be deemed 

to consent to the assumption and assignment of the applicable Assigned Lease pursuant to 

section 365 of the Bankruptcy Code on the terms set forth in the Sales Order, along with the cure 

amounts identified in the Notice of Assumption and Assignment. See, e.g., In re Tabone, Inc., 175 

B.R. 855, 858 (Bankr. D.N.J. 1994) (by not objecting to sale motion, creditor deemed to consent); 

Pelican Homestead v. Wooten (In re Gabel), 61 B.R. 661, 667 (Bankr. W.D. La. 1985) (same). 

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65. The Debtors believe that the Assumption and Assignment Procedures are fair and 

reasonable, provide sufficient notice to the Assigned Lease Counterparties, and provide certainty 

to all parties in interest regarding their obligations and rights in respect thereof. Accordingly, the 

Debtors request the Court approve the Assumption and Assignment Procedures set forth in the 

Bidding Procedures Order.

VI. The Assumption and Assignment of the Leases Should Be Approved.

A. The Assumption and Assignment of the Leases Reflects the Debtors’ 

Reasonable Business Judgment.

66. To facilitate and effectuate the Sales, the Debtors are seeking authority to assign or 

transfer the Assumed Leases to the Successful Bidder to the extent required by the Successful 

Bidder. 

67. Section 365 of the Bankruptcy Code authorizes a debtor to assume and/or assign its 

executory contracts and unexpired leases, subject to the approval of the court, provided that the 

defaults under such contracts and leases are cured and adequate assurance of future performance 

is provided. The Debtors’ decision to assume or reject an executory contract or unexpired lease 

must only satisfy the “business judgment rule” and will not be subject to review unless such 

decision is clearly an unreasonable exercise of such judgment. See, e.g., Grp. of Institutional 

Investors v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 318 U.S. 523 (1943) (applying 

Bankruptcy Act section 77(b), predecessor to Bankruptcy Code section 365, and rejecting test of 

whether executory contract was burdensome in favor of whether rejection is within debtor’s 

business judgment); Sharon Steel Corp. v. Nat’l Fuel Gas Distrib. Corp., 872 F.2d 36, 40 (3d Cir. 

1989) (describing deference to a debtor’s business judgment as “breathing space afforded [to] the 

debtor to consider whether to reject or assume executory contracts under the Code.”); In re Spirit 

Holding Co., Inc., 166 B.R. 371, 378 (Bankr. E.D. Mo. 1994) (providing that the standard for 

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33

approving the assumption of an executory contract is to determine if the debtor “exercise[d] wise 

business judgment”).

68. Here, the Court should approve the decision to assume and assign the Assumed 

Leases in connection with the Sales as a sound exercise of the Debtors’ business judgment. First, 

the Assumed Leases are essential to inducing the best offer for some or all of the Remaining Real 

Estate Assets. Second, the Assumed Leases will be assumed and assigned through the process 

approved by the Court pursuant to the Bidding Procedures Order and, thus, will be reviewed by 

key constituents in these chapter 11 cases.

69. Accordingly, the Debtors submit that the assumption and assignment of the 

Assumed Leases by way of the Assumption and Assignment Procedures should be approved as an 

exercise of their business judgment.

B. Assumption and Assignment of the Unexpired Leases Satisfies the 

Requirements of the Bankruptcy Code.

70. Upon finding that a debtor has exercised its business judgment in determining that 

assuming an executory contract is in the best interest of its estate, courts must then evaluate 

whether the assumption meets the requirements of section 365(b) of the Bankruptcy Code, 

specifically that a debtor (a) cure, or provide adequate assurance of promptly curing, prepetition 

defaults in the executory contract, (b) compensate parties for pecuniary losses arising therefrom, 

and (c) provide adequate assurance of future performance thereunder. This section “attempts to 

strike a balance between two sometimes competing interests, the right of the contracting 

non-debtor to get the performance it bargained for and the right of the debtor’s creditors to get the 

benefit of the debtor’s bargain.” In re Luce Indus., Inc., 8 B.R. 100, 107 (Bankr. S.D.N.Y. 1980).

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C. Defaults Under the Assumed Leases Will Be Cured in Connection with 

the Sales.

71. The Debtors submit that the statutory requirements of section 365(b)(1)(A) of the 

Bankruptcy Code will be promptly satisfied because the Stalking Horse Agreement requires the 

cure of all defaults associated with, or that are required to properly assume, the Assumed Leases. 

Because the Assumption and Assignment Procedures provide a clear process by which to resolve 

disputes over cure amounts or other defaults, the Debtors are confident that if defaults exist that 

must be cured, such cure will be achieved fairly, efficiently, and properly, consistent with the 

Bankruptcy Code and with due respect to the rights of non-Debtor parties. 

D. Non-Debtor Parties Will Be Adequately Assured of Future Performance.

72. Similarly, the Debtors submit that the third requirement of section 365(b) of the 

Bankruptcy Code—adequate assurance of future performance—is also satisfied given the facts 

and circumstances present here. “The phrase ‘adequate assurance of future performance’ adopted 

from section 2-609(1) of the Uniform Commercial Code, is to be given a practical, pragmatic 

construction based upon the facts and circumstances of each case.” In re U.L. Radio Corp., 19 

B.R. 537, 542 (Bankr. S.D.N.Y. 1982); see In re Alipat, Inc., 36 B.R. 274, 277 (Bankr. E.D. Mo. 

1984). Although no single solution will satisfy every case, “the required assurance will fall 

considerably short of an absolute guarantee of performance.” In re Prime Motor Inns, Inc., 166 

B.R. 993, 997 (Bankr. S.D. Fla. 1994). Among other things, adequate assurance may be given by 

demonstrating the assignee’s financial health and experience in managing the type of enterprise or 

property assigned. See In re Bygaph, Inc., 56 B.R. 596, 605–06 (Bankr. S.D.N.Y. 1986) (adequate 

assurance of future performance present where a prospective assignee has financial resources and 

has expressed a willingness to devote sufficient funding to a business to give it a strong likelihood 

of succeeding). 

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73. The Debtors submit that the information required for any bidder to become a 

Qualified Bidder satisfies any adequate assurance inquiry. Further, the Bidding Procedures 

provide that the Debtors may disseminate certain information of a Qualified Bidder to affected 

landlords to satisfy the requirement of providing adequate assurance of future performance. 

VII. Relief Under Bankruptcy Rules 6004(h) and 6006(d) Is Appropriate.

74. Bankruptcy Rule 6004(h) provides that an “order authorizing the use, sale, or lease 

of property . . . is stayed until the expiration of fourteen days after the entry of the order, unless 

the court orders otherwise.” Fed. R. Bankr. P. 6004(h). Additionally, Bankruptcy Rule 6006(d) 

provides that an “order authorizing the trustee to assign an executory contract or unexpired 

lease . . . is stayed until the expiration of fourteen days after the entry of the order, unless the court 

orders otherwise.” Fed. R. Bankr. P. 6006(d). The Debtors request that the Sales Order be 

effective immediately upon its entry by providing that the fourteen-day stays under Bankruptcy 

Rules 6004(h) and 6006(d) are waived.

75. The purpose of Bankruptcy Rules 6004(h) and 6006(d) is to provide sufficient time 

for an objecting party to appeal before an order can be implemented. See Advisory Committee 

Notes to Fed. R. Bankr. P. 6004(h) and 6006(d). Although Bankruptcy Rules 6004(h) and 6006(d) 

and the Advisory Committee Notes are silent as to when a court should “order otherwise” and 

eliminate or reduce the fourteen-day stay period, the leading treatise on bankruptcy suggests that 

the fourteen-day stay should be eliminated to allow a sale or other transaction to close immediately 

“where there has been no objection to procedure.” 10 Collier on Bankr. ¶ 6004.10 (15th rev. ed. 

2006). Furthermore, if an objection is filed and overruled, and the objecting party informs the 

court of its intent to appeal, the stay may be reduced to the amount of time actually necessary to 

file such appeal. Id. 

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76. To maximize the value received for the Assets, the Debtors seek to close the Sales 

as soon as possible after the Sale Hearing. Accordingly, the Debtors hereby request that the Court 

waive the 14-day stay period under Bankruptcy Rules 6004(h) and 6006(d).

Waiver of Memorandum of Law

77. The Debtors respectfully request that this Court treat this Motion as a written 

memorandum of law or waive any requirement that this Motion be accompanied by a written 

memorandum of law as described in Local Bankruptcy Rule 9013-1(b).

Reservation of Rights

78. Nothing contained herein is intended or shall be construed as: (a) an admission as 

to the amount of, basis for, or validity of any claim against the Debtors under the Bankruptcy Code, 

any foreign bankruptcy or insolvency law, including the CCAA, or other applicable nonbankruptcy 

law; (b) a waiver of the Debtors’ or any other party in interest’s right to dispute any claim, (c) a 

promise or requirement to pay any particular claim; (d) an implication or admission that any 

particular claim is of a type specified or defined in this motion; (e) a request or authorization to 

assume, adopt, or reject any agreement, contract, or lease pursuant to section 365 of the Bankruptcy 

Code or pursuant to the CCAA; (f) an admission as to the validity, priority, enforceability, or 

perfection of any lien on, security interest in, or other encumbrance on property of the Debtors’ 

estates; or (g) a waiver of any claims or causes of action which may exist against any entity under 

the Bankruptcy Code, the CCAA, or any other applicable law.

Notice

79. The Debtors will provide notice of this Motion via first class mail and email (where 

available) to: (a) the Office of the United States Trustee for the Eastern District of Virginia, Attn: 

Robert B. Van Arsdale and Lynn A. Kohen; (b) counsel to the committee of unsecured creditors; 

(c) DIP ABL Agent and the advisors and counsel thereto; (d) DIP Taj Term Loan Agent and the 

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37

advisors and counsel thereto; (e) DIP Delaware Term Loan Agent and the advisors and counsel 

thereto; (f) the indenture trustee for the TRU Taj 12.00% Senior Notes and the advisors and 

counsel thereto; (g) the administrative agent for the prepetition Secured Revolving Credit Facility

and the advisors and counsel thereto; (h) the administrative agent for the prepetition Secured Term 

Loan B Facility and the advisors and counsel thereto; (i) the prepetition administrative agent for 

the Propco I Unsecured Term Loan Facility and the advisors and counsel thereto; (j) the agent for 

the Propco II Mortgage Loan and the advisors and counsel thereto; (k) the agent for the Giraffe 

Junior Mezzanine Loan and the advisors and counsel thereto; (l) the administrative agent for the 

prepetition European and Australian Asset-Based Revolving Credit Facility and the advisors and 

counsel thereto; (m) the administrative agent for the Senior Unsecured Term Loan Facility and the 

advisors and counsel thereto; (n) the indenture trustee for the Debtors’ 7.375% Senior Notes and 

the advisors and counsel thereto; (o) the indenture trustee for the Debtors’ 8.75% Unsecured Notes 

and the advisors and counsel thereto; (p) counsel to the ad hoc group of the Term B-4 Holders; 

(q) counsel to the Ad Hoc Committee of Taj Noteholders; (r) the monitor in the CCAA proceeding 

and counsel thereto; (s) the Debtors’ Canadian Counsel; (t) the Internal Revenue Service; (u) the 

office of the attorneys general for the states in which the Debtors operate; (v) the Securities and 

Exchange Commission; and (w) any party that has requested notice pursuant to Bankruptcy Rule 

2002 (collectively, the “Notice Parties”). The Debtors submit that, in light of the nature of the 

relief requested, no other or further notice need be given.

No Prior Request

80. No prior motion for the relief requested herein has been made to this or any other 

court.

[Remainder of page intentionally left blank]

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Richmond, Virginia

Dated: April 19, 2018

/s/ Jeremy S. Williams

KUTAK ROCK LLP KIRKLAND & ELLIS LLP

Michael A. Condyles (VA 27807) KIRKLAND & ELLIS INTERNATIONAL LLP

Peter J. Barrett (VA 46179) Edward O. Sassower, P.C.

Jeremy S. Williams (VA 77469) Joshua A. Sussberg, P.C. (admitted pro hac vice)

901 East Byrd Street, Suite 1000 601 Lexington Avenue

Richmond, Virginia 23219-4071 New York, New York 10022

Telephone: (804) 644-1700 Telephone: (212) 446-4800

Facsimile: (804) 783-6192 Facsimile: (212) 446-4900

Email: Michael.Condyles@KutakRock.com Email: edward.sassower@kirkland.com

Peter.Barrett@KutakRock.com joshua.sussberg@kirkland.com

Jeremy.Williams@KutakRock.com

-andCo-Counsel to the Debtors

and Debtors in Possession James H.M. Sprayregen, P.C.

Anup Sathy, P.C. 

Chad J. Husnick, P.C. (admitted pro hac vice)

Emily E. Geier (admitted pro hac vice)

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Email: james.sprayregen@kirkland.com

 anup.sathy@kirkland.com

 chad.husnick@kirkland.com

emily.geier@kirkland.com

Co-Counsel to the Debtors

and Debtors in Possession

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Exhibit A

Proposed Order

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Edward O. Sassower, P.C. James H.M. Sprayregen, P.C.

Joshua A. Sussberg, P.C. (admitted pro hac vice) Anup Sathy, P.C.

KIRKLAND & ELLIS LLP Chad J. Husnick, P.C. (admitted pro hac vice)

KIRKLAND & ELLIS INTERNATIONAL LLP Emily E. Geier (admitted pro hac vice)

601 Lexington Avenue KIRKLAND & ELLIS LLP

New York, New York 10022 KIRKLAND & ELLIS INTERNATIONAL LLP

Telephone: (212) 446-4800 300 North LaSalle

Facsimile: (212) 446-4900 Chicago, Illinois 60654

Telephone: (312) 862-2000

-and- Facsimile: (312) 862-2200

Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

TOYS “R” US, INC., et al.,

1

) Case No. 17-34665 (KLP)

)

Debtors. ) (Jointly Administered)

)

ORDER (I) ESTABLISHING 

BIDDING PROCEDURES FOR THE 

REMAINING REAL ESTATE ASSETS OF TOYS 

DELAWARE AND (II) GRANTING RELATED RELIEF

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

(collectively, the “Debtors”) for entry of an order (this “Order”) (a) establishing bidding 

procedures, attached hereto as Exhibit 1 (the “Bidding Procedures”), by which the Debtors will 

 

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting 

Related Relief [Docket No. 78]. The location of the Debtors’ service address is One Geoffrey Way, Wayne, 

New Jersey 07470.

2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.

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2

solicit and select the highest or otherwise best offer(s) for the sale, or sales (the “Sales”), of any 

remaining owned real property and commercial leases of Toys “R” Us-Delaware, Inc. (”Toys 

Delaware,” and such assets, the “Remaining Real Estate Assets”) at all future auctions of the 

Remaining Real Estate Assets (each, an “Auction”); (b) approving the form and manner of notice 

for any Auction and subsequent sale hearing (each, a “Sale Hearing”) attached hereto as Exhibit 2

(the “Auction and Hearing Notice”); (c) approving the noticing and procedures for the assumption 

and assignment of executory contracts and unexpired leases sold at an Auction, including the 

notice of proposed cure amounts, attached hereto as Exhibit 3 (the “Assignment Notice”); (d) 

approving the form agreements attached to the Bidding Procedures as Exhibit A; (e) scheduling 

an initial Auction and hearing to approve the Sales (the “Sale Hearing”); (f) approving procedures 

for selling certain Remaining Real Estate Assets not sold at the Auctions; and (g) granting related 

relief, it is HEREBY ORDERED THAT:

The Motion is granted as provided herein.

All objections to the relief requested in the Motion that have not been withdrawn, 

waived, or settled as announced to this Court at the hearing on the Motion or by stipulation filed 

with this Court, are overruled.

I. Auction and Bidding Procedures.

The Bidding Procedures, attached as Exhibit 1 hereto, are incorporated herein and 

are hereby approved in their entirety, and the Bidding Procedures shall govern the submission, 

receipt, and analysis of all bids related to any Sales of the Remaining Real Estate Assets and any 

Auction. Any party desiring to submit a bid shall comply with the Bidding Procedures and this 

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3

Order. The Debtors are authorized to take any and all actions necessary to implement the Bidding 

Procedures.

If the Debtors do not receive a Qualified Bid as to a particular Remaining Real 

Estate Asset by the Bid Deadline (or such later date as may be determined by the Debtors in 

consultation with the Consultation Parties), the Auction shall be cancelled or adjourned (as may 

be determined by the Debtors in consultation with the Consultation Parties) as to such asset. If the 

Debtors receive one or more Qualified Bids, the Debtors will conduct the Auction in accordance 

with the Bidding Procedures.

At the Auction, each Qualified Bidder will be entitled, but will not be obligated, to 

submit overbids and will be entitled in any such overbids to credit bid all or a portion of the value 

of the secured portion of its claims, if any, within the meaning of section 363(k) of the Bankruptcy 

Code. Each counterparty to a Lease proposed to be sold or transferred at the Auction (each a 

“Lease Counterparty”) may credit bid all or a portion of the applicable Cure Cost (as defined 

below) proposed by such Lease Counterparty. If such Lease Counterparty is the Successful Bidder 

on the applicable Lease, and it is later determined by this Court or agreement by and among the 

Debtors and Lease Counterparty that the actual Cure Cost is a lesser amount, then the Lease 

Counterparty shall pay the difference in cash prior to the Sale Closing Deadline. For the avoidance 

of doubt, any Lease Counterparty shall be deemed a Qualified Bidder.

At or following the Auction, the Debtor who is a party to the lease, as applicable, 

may: (a) select, in its business judgment, pursuant to the Bidding Procedures, (i) the highest or 

otherwise best bid as the Successful Bidder and (ii) the second highest or otherwise second-best 

bid as the Backup Bidder; and (b) reject any bid (regardless of whether such bid is a Qualified Bid) 

that, in such Debtor’s business judgment, is (i) inadequate, insufficient, or not the highest or best 

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bid, (ii) not in conformity with the requirements of the Bankruptcy Code, the Bankruptcy Rules, 

or the Bidding Procedures, or (iii) contrary to, or otherwise not in the best interests of the Debtors’ 

estates, affected stakeholders, or other parties in interest, in each case subject to and in accordance 

with the Bidding Procedures. For the avoidance of doubt, no Debtor is required to name a 

Successful Bidder for any given Remaining Real Estate Asset or group thereof and may elect to 

not sell such asset to the highest or otherwise best bidder.

In the event the Successful Bidder does not close for any given Remaining Real 

Estate Asset, the Debtors shall promptly file a supplemental notice on or before the Sale Closing 

Deadline, seeking to approve the sale to the Backup Bidder, if applicable, on expedited notice and 

a hearing. The Backup Bidder (as identified by the Notice of Successful and Backup Bidders) 

shall not be approved at the Sale Hearing. If the Debtors submit a supplemental notice of a Backup 

Bidder, the deadline to assume or reject the applicable Lease shall be tolled until the applicable 

hearing. If any sale to a Backup Bidder is not approved by this Court, any applicable Leases shall 

be deemed rejected on the Sale Closing Deadline, unless otherwise ordered by the Court.

Notwithstanding anything to the contrary in this Order, Debtors Toys “R” Us 

Europe, LLC, TRU Taj Holdings 1, LLC, TRU Taj Holdings 2, Limited, TRU Taj Holdings 3, 

LLC, TRU Taj LLC, TRU Taj (Europe) Holdings, LLC, TRU Taj Asia, LLC, and Tru Taj Finance, 

Inc. shall not be authorized to make any payments under this Order, including any payments in 

respect of the Bid Protections.

II. Notice of Sale, Auction, and Sale Hearing.

The Debtors may utilize these Bidding Procedures for future Auctions by filing an 

Auction and Hearing Notice that contains: (a) all relevant dates for the Auction, including the Bid 

Deadline, Notice of Qualified Bids, Auction, Notice of Successful and Backup Bidders, Sale 

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Objection Deadline, Hearing date, and Sale Closing Deadline; (b) a list of properties to be sold at 

the Auction; and (c) a copy of the Bidding Procedures approved herein. 

Parties will have the right to object to the proposed Auction (or related dates) by 

filing an objection (an “Auction Objection”) with the Court by 5:00 p.m. (prevailing Eastern Time) 

fourteen (14) days after the Debtors file the Auction and Hearing Notice and serving it on the 

Objection Notice Parties (as defined herein). If no Auction Objections are filed and served as set 

forth herein, the Auction (and related dates) will be deemed authorized and approved without any 

further order of the Court and the Debtors are authorized to proceed with the Auction and all 

applicable related dates. If the Debtors receive any Auction Objections that the parties cannot 

consensually resolve, the Debtors will set a hearing with the Court to approve the Auction.

Within three (3) days after the Auction is authorized, or as soon as reasonably 

practicable thereafter, following a hearing or deemed authorized by the expiration of the Auction 

Objection period, the Debtors will file and serve on the Notice Parties (as defined herein) an 

Auction and Hearing Notice. The Auction and Hearing Notice will indicate that copies of this 

Order and any future sale documents, if applicable, can be obtained on the website of the Debtors’ 

claims and noticing agent, Prime Clerk, http://www.cases.primeclerk.com/toysrus (the “Case 

Website”).

Within three (3) days after the Auction is authorized following a hearing or deemed 

authorized by the expiration of the Auction Objection period, or as soon as reasonably practicable 

thereafter, the Debtors will place a publication version of the Auction and Hearing Notice for one 

day in The USA Today (National Edition) and the Richmond Times Dispatch, and post it onto the 

Case Website. 

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The Debtors shall be permitted to choose a Stalking Horse Bidder through and 

including two days prior to the Auction.

The Debtors shall file any Auction and Hearing Notice at least 21 days prior to the 

proposed Sale Hearing. Such notice is deemed sufficient and proper notice of the Sales with 

respect to known interested parties.

After the conclusion of the Auction, the Debtors will file on the docket, but not 

serve on any party other than the Objection Notice Parties (as defined herein), a notice identifying 

the Successful Bidder(s) and Backup Bidder(s) (the “Notice of Successful and Backup Bidders”), 

identifying the applicable Successful Bidder(s), Remaining Real Estate Asset(s), the key terms of 

the agreement, and any Expense Reimbursement and/or Breakup Fee proposed to be paid, 

substantially in the form attached to this Order as Exhibit 4. 

The Debtors shall seek approval of any Bid Protections at the Sale Hearing, 

provided, that, for the avoidance of doubt, the amount of the Breakup Fee shall not exceed three 

percent (3%) of any proposed Stalking Horse Bidder Purchase Price; provided further, that the 

Debtors will only select one Stalking Horse Bidder per Remaining Real Estate Asset, regardless 

of whether such Remaining Real Estate Asset is part of a single or group bid; provided further, 

that the Debtors will provide Expense Reimbursements only to the Stalking Horse Bidder and such 

expenses must be reasonable, documented, and subject to review by the Debtors and the Objection 

Notice Parties (as defined herein), who shall have the right to review upon 14 days’ notice and 

shall have the right to raise objections during that time to be heard at the Sale Hearing. For the 

avoidance of doubt, the Consultation Parties will retain the right to object to the payment of any 

Bid Protections. 

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Parties objecting to approval of the proposed Sales must file a written objection 

(each, a “Sale Objection”) so that such Sale Objection is filed with the Court by the date listed in 

the Auction and Hearing Notice, and serve such Sale Objection on the following parties (the 

“Objection Notice Parties”): (a) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New 

York 10022, Attn: Joshua A. Sussberg, P.C., and Kirkland & Ellis LLP, 300 North LaSalle Street, 

Chicago, Illinois 60654, Attn: Chad Husnick, P.C. and Emily Geier, and Kutak Rock LLP, 901 

East Byrd Street, Suite 1000, Richmond, Virginia 23218, Attn: Michael A. Condyles, Peter J. 

Barrett, and Jeremy S. Williams, co-counsel to the Debtors; (b) the Office of the United States 

Trustee for the Eastern District of Virginia, Attn: Robert B. Van Arsdale and Lynn A. Kohen; (c) 

Kramer Levin Naftalis & Frankel LLP, 1177 Avenue of the Americas, New York, New York 

10036, Attn: Adam C. Rogoff, Esq. and Rachael Ringer, Esq., counsel to the Official Committee 

of Unsecured Creditors; (d) Davis, Polk & Wardwell LLP, 450 Lexington Avenue, New York, 

New York 11017, Attn: Marshall Huebner and Kenneth Steinberg, counsel to the DIP ABL Agent; 

and (e) Wachtell, Lipton, Rosen, and Katz, 51 West 52nd Street, New York, New York 10019, 

Attn: Joshua A. Feltman, counsel to the DIP Delaware Term Loan Agent.

A. Dates and Deadlines of Initial Auction of Remaining Real Estate Assets.

The following dates and deadlines are hereby approved for the initial Auction of 

Remaining Real Estate Assets included on Exhibit 5 hereto,3 which the Debtors may adjourn from 

time to time4in order to facilitate a smooth and efficient sale process:

(a) Stalking Horse Date: May 25, 2018, at 5:00 p.m., prevailing Eastern Time, 

until two days prior to the Auction, as the period during which the Debtors 

 

3 The Debtors reserve the right to amend the list of properties to be sold at any Auction at any time and for any 

reason in their business judgment, in consultation with the Consultation Parties.

4 For the avoidance of doubt, the Debtors may, upon notice to the Consultation Parties and after consultation with 

their advisors, extend any of the proposed dates as to any of the Remaining Real Estate Assets in order to facilitate 

an efficient and value-maximizing process for the portfolio of Remaining Real Estate Assets as a whole.

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may choose a Stalking Horse Bidder, if any.

(b) Bid Deadline: May 29, 2018, at 5:00 p.m., prevailing Eastern Time, as the 

deadline by which all bids must be actually received pursuant to the Bidding 

Procedures.

(c) Notice of Qualified Bids: June 5, 2018, at 5:00 p.m., prevailing Eastern 

Time, as the date and time by which the Debtors shall file with the Court a 

notice of Qualified Bids.

(d) Auction: June 11, 2018, at 10:00 a.m., prevailing Eastern Time, as the date 

and time by which the Auction, if needed, would be held at the offices of 

Kirkland & Ellis LLP, located at: 601 Lexington Avenue, New York, NY 

10022.

(e) Notice of Successful and Backup Bidders: if applicable, June 13, 2018, as 

the date by which the Debtors must file with the Court a notice of Successful 

and Backup Bidders (as defined herein).

(f) Sale Objection Deadline: if applicable, June 17, 2018, at 5:00 p.m., 

prevailing Eastern Time, as the deadline to object to the Sale, proposed 

assumption and assignment, and/or to the Successful Bidder’s proposed form 

of adequate assurance of future performance.

(g) Hearing to Designate Successful Bidder(s): June 25, 2018, (or such other 

date as determined by the Court’s availability) is the date set for a hearing at 

which the Debtors shall seek approval from the Court to designate the 

Successful Bidders in connection with the Sales. The Sale Hearing shall be an 

evidentiary hearing on matters relating to the Sales and there will be no further 

bidding at the Sale Hearing. In the event that the Successful Bidder cannot or 

refuses to consummate the Sales, the Debtors may, in accordance with the 

Bidding Procedures, and after consultation with the Consultation Parties, 

designate the Backup Bid to be the new Successful Bid and the Backup Bidder 

to be the new Successful Bidder, and the Debtors shall be authorized, but not 

required, to consummate the transaction with the Backup Bidder without 

further order of the Court.

B. Notice of Successful Bidder.

As soon as reasonably practicable after the conclusion of the Auction, the Debtors 

shall file on the docket, but not serve, a notice identifying the Successful Bidder(s) (the “Notice of 

Successful and Backup Bidders”), Remaining Real Estate Asset(s), key terms of the agreement, 

and identifying the Backup Bidder(s), substantially in the form attached hereto as Exhibit 4.

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III. Summary of the Assumption Procedures.

The Assumption and Assignment Procedures below are hereby approved and shall 

be the procedures by which the Debtors will notify counterparties (the “Lease Counterparties”) to 

unexpired leases (the “Leases”) of proposed cure amounts in the event the Debtors determine to 

assume and assign such contracts or leases in connection with a sale, liquidation, or other 

disposition.

On a date no later than ten days prior to the Sale Hearing, the Debtors shall file with 

the Court a notice in the form attached hereto as Exhibit 3 (the “Assumption and Assignment 

Notice”) to assume one or more Leases pursuant to section 365 of the Bankruptcy Code, which 

shall set forth, among other things: (i) the Lease or Leases to be assumed; (ii) the names and 

addresses of the counterparties to such Leases; (iii) the identity of the proposed assignee of such 

Leases (the “Assignee”), if applicable; (iv) the effective date of the assumption for each such Lease 

(the “Assignment Date”); (v) the proposed cure amount (the “Cure Costs”), if any for each such 

Lease; (vi) a description of any material amendments to the Lease made outside of the ordinary 

course of business; and (vii) the deadlines and procedures for filing objections to the Assumption 

and Assignment Notice (as set forth below). 

The Debtors will cause the Assumption and Assignment Notice to be served (i) by 

overnight delivery service upon the Lease Counterparties affected by the Assumption and 

Assignment Notice at the address set forth in the notice provision of the applicable Lease (and 

their counsel, if known) and (ii) by first class mail, email, or fax upon the Notice Parties. 

To the extent the Debtors seek to assume and assign a lease of non-residential real 

property, the Debtors will provide by overnight delivery to the applicable Lease Counterparty (and 

their counsel, if known), within 24 hours of the Qualified Bid Deadline upon request by a Lease 

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Counterparty that has submitted a valid ROFR Notice (as defined in the Bidding Procedures) and 

within 24 hours upon request by any other Lease Counterparty following the filing of the Notice 

of Successful and Backup Bidders, evidence that the proposed assignee of the lease has the ability 

to comply with the requirements of adequate assurance of future performance required under 

sections 365(b)(1) or 365(b)(3), as applicable, including the Adequate Assurance Package (as 

defined in the Bidding Procedures) on a confidential basis.

Parties objecting to a proposed assumption and assignment and/or to a Successful 

Bidder’s proposed form of adequate assurance of future performance must file a written objection 

with the Court by the Sale Objection Deadline (each, an “Assignment Objection”) and serve such 

Assignment Objection on the Objection Notice Parties.

If no objection to the assumption of any Lease is timely filed, each Lease shall be 

assumed as of the Assignment Date set forth in the applicable Assignment Notice or such other 

date as the Debtors and the Lease Counterparties agree and the proposed cure amount shall be 

binding on all Lease Counterparties and no amount in excess thereof shall be paid for cure 

purposes; provided, however that the Assignment Date for a lease of nonresidential real property 

shall not occur earlier than the date the Debtors filed and served the applicable Assumption and 

Assignment Notice.

If the Lease Counterparty does not file and serve an Assignment Objection in a 

manner that is consistent with the requirements set forth herein, and absent a subsequent order of 

the Court in connection with such objection establishing an alternative Cure Cost or an agreement 

between the Debtors and the Lease Counterparty resolving such objection, (a) the Cure Costs, if 

any, set forth in the Notice of Assumption and Assignment shall be controlling, notwithstanding 

anything to the contrary in any Assigned Lease or any other document, and (b) the Lease 

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Counterparty will be deemed to have consented to the assumption and assignment of the Assigned 

Lease and the Cure Costs, if any, and will be forever barred from asserting any other claims related 

to such Assigned Lease against the Debtors or the Successful Bidder, or the property of any of 

them.

The inclusion of an Assigned Lease on the Notice of Assumption and Assignment 

will not: (a) obligate the Debtors to assume any Assigned Lease listed thereon or the Successful 

Bidder to take assignment of such Assumed Lease; or (b) constitute any admission or agreement 

of the Debtors that such Assigned Leases an executory contract. Only those Assumed Leases that 

are included on a schedule of assumed and acquired contracts attached to a final asset purchase 

agreement with a Successful Bidder (including amendments or modifications to such schedules in 

accordance with such asset purchase agreement) will be assumed and assigned to the applicable 

Successful Bidder. No Assigned Lease shall be assumed absent closing on the assignment thereof 

to the applicable Successful Bidder.

IV. Procedures for Unsold Property.

If the Debtors determine that holding an Auction with respect to a particular 

Remaining Real Estate Asset would not result in the highest or otherwise best offer for such asset, 

or if the Debtors receive no bids on certain properties prior to the close of the Auction, or if the 

Debtors determine (in consultation with the Consultation Parties) that the highest or otherwise best 

bid at the Auction will not, in the Debtors’ business judgment (in consultation with the 

Consultation Parties) maximize the value of the Remaining Real Estate Asset(s) being sold, the 

Debtors shall follow the following procedures (the “Non-Auction Sale Procedures”) to sell such 

Remaining Real Estate Assets (the “Non-Auction Real Estate Assets”):

a. With regard to sales or transfers of Non-Auction Real Estate Assets in any 

individual transaction or series of related transactions to a single buyer or 

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group of related buyers with a sale price5less than or equal to 

$5,000,000.00:

i. subject to the procedures set forth herein, the Debtors (in 

consultation with the Consultation Parties) are authorized to 

consummate such transaction(s) without further order of the Court 

if the Debtors determine in the reasonable exercise of their business 

judgment that such sales or transfers are in the best interests of their 

estates and the sale price is higher or otherwise better than any bid 

received at the Auction, if applicable;

ii. subject to the Sale Order and any conditions therein, any such 

transactions shall be deemed final and fully authorized by the Court 

and free and clear of liens, with such liens attaching only to the sale 

proceeds with the same validity, extent, and priority as immediately 

prior to the sale or transfer;

iii. the Debtors shall cause, at least fourteen (14) days prior to the 

proposed closing date of such sale or effectuating such transfer, a 

notice of such sale (a “Non-Auction Sale Notice”) to be filed with 

the Court and served on: (a) the Office of the United States Trustee 

for the Eastern District of Virginia, Attn: Robert B. Van Arsdale 

and Lynn A. Kohen; (b) Kramer Levin Naftalis & Frankel LLP, 

1177 Avenue of the Americas, New York, New York 10036, Attn: 

Adam C. Rogoff, Esq. and Rachael Ringer, Esq., counsel to the 

Official Committee of Unsecured Creditors; (c) the DIP ABL Agent 

and the advisors and counsel thereto; (d) the DIP Delaware Term 

Loan Agent and the advisors and counsel thereto; (e) counsel to the 

administrative agent for the prepetition Secured Term Loan B 

Facility; (f) the United States Attorney’s Office for the Eastern 

District of Virginia; (g) the office of the attorneys general for the 

states in which the Debtors operate; (h) the Internal Revenue 

Service; (i) the United States Securities and Exchange Commission; 

(j) any party that has requested notice pursuant to Bankruptcy Rule 

2002, (k) any Qualified Bidder who placed a bid on such property 

at the Auction, (l) any counterparty or counterparties to any Lease(s) 

proposed to be sold or transferred, (collectively, the “Non-Auction 

Sale Notice Parties”);

iv. the content of the Non-Auction Sale Notice shall consist of: (A) an 

identification of the Non-Auction Real Estate Assets being sold or 

transferred; (B) an identification of the purchaser of the assets; 

(C) the purchase price to be paid for the Non-Auction Real Estate 

 

5 For purposes of these Non-Auction Sale Procedures, “sale price” shall refer to the bidder’s proposed purchase 

price as agreed to by the Debtors (in consultation with the Consultation Parties).

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Assets; (D) the marketing or sales process, including any 

commissions to be paid to third parties, used to sell the assets; and 

(E) the significant terms of the sale or transfer agreement;6

v. if, within fourteen (14) days after receipt of such Non-Auction Sale 

Notice by any of the Non-Auction Sale Notice Parties (or such 

additional time period as my be agreed to by the Debtors), (A) no 

written objections are filed with the Court, and (B) the Debtors do 

not receive any competing bids for any of the Non-Auction Real 

Estate Assets being sold (a “Competing Bid”), the Debtors are 

authorized to immediately consummate such sale or transfer; 

vi. if any Non-Auction Sale Notice Party files a written objection to any 

such sale or transfer with the Court within fourteen (14) days (or

such additional time period as my be agreed to by the Debtors) after 

receipt of such Non-Auction Sale Notice, the applicable 

Non-Auction Real Estate Asset shall only be sold or transferred 

upon either (A) the consensual resolution of the objection by the 

parties or (B) further order of the Court after notice and a hearing; 

and

vii. if the Debtors receive a Competing Bid, the Debtors will evaluate 

such Competing Bid, in consultation with the Consultation Parties, 

and hold an Auction between only the initial purchaser and the 

competing bidder to determine the higher or otherwise better bid. 

The Debtors shall be authorized to enter into a sale agreement with 

the successful bidder at the Auction without further order of this 

Court.

b. To the extent the Debtors seek to assume and assign a lease of 

non-residential real property, the Debtors will, at the request of the 

applicable lease counterparty, provide evidence to such applicable lease 

counterparty (and their counsel, if known) within seven (7) days of the NonAuction Sale Notice demonstrating that the assignee of the lease has the 

ability to comply with the requirements of adequate assurance of future 

performance to the extent required under sections 365(b)(1) or 365(b)(3), 

as applicable.

c. These Non-Auction Sale Procedures shall not apply to any sale or transfer 

to an insider, Committee member, or lender of the Debtors. 

 

6 A copy of the definitive agreement for the applicable Non-Auction Real Estate Assets shall be provided promptly 

to any Non-Auction Sale Notice Parties upon request.

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V. Miscellaneous.

All Bids shall be irrevocable. If any Successful Bidder or Backup Bidder seeks to 

revoke its Bid for any reason, then the Debtors shall be entitled to retain such bidder’s deposit and 

pursue all contractual remedies against such bidder under law and equity.

Unless otherwise agreed in the applicable Assumption and Assignment Agreement, 

the Assignee shall assume and cure all outstanding liabilities with respect to the Assigned Asset(s), 

including, but not limited to, accrued but unbilled adjustments for CAM, real estate taxes and 

insurance.

For the avoidance of doubt, the relief granted herein shall apply only to the 

Remaining Real Estate Assets of Toys Delaware. The Debtors shall not seek to extend any of the 

relief granted herein to any real property owned or commercial lease subleased by Toys “R” Us 

Property Company I, LLC (“Propco I”) or any subsidiary of Propco I without the prior written 

consent of Propco I and upon separate motion and further order of this Court.

The Debtors reserve the right to seek authority to sell any of the Remaining Real 

Estate Assets pursuant to a separate process pursuant to a separate order of this Court.

To the extent this Court authorizes the sale of any Remaining Real Estate Asset 

pursuant to the Bidding Procedures free and clear of any interest (including, but not limited to, any 

liens, security interests, or encumbrances) in such Remaining Real Estate Asset pursuant to 

section 363(f) of the Bankruptcy Code, such interest shall attach to the proceeds of the sale of such 

Remaining Real Estate Asset, with any payment on account of such liens, claims, interests, and 

encumbrances subject to further order of this Court.

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Except as otherwise set forth in the Bidding Procedures, any right of first refusal 

over the sale of any Remaining Real Estate Asset shall be unenforceable pursuant to section 365(f) 

of the Bankruptcy Code.

The failure to include or reference a particular provision of the Bidding Procedures 

in this Order shall not diminish or impair the effectiveness or enforceability of such a provision in 

the Bidding Procedures.

The Debtors shall properly file reports of sale for all Sales, including Sales pursuant 

to the Bidding Procedures.

Notwithstanding anything to the contrary in this Order or the Bidding Procedures, 

(i) the Debtors shall not, and shall not permit their agents or advisors to, take any action that is not 

in compliance with, or would result in a default or breach under that certain Second Amended and 

Restated Master Lease Agreement, by and among Toys “R” Us-Delaware, Inc. as Tenant, and 

Propco II, as Landlord, dated as of November 3, 2016, and as may be amended, supplemented, or 

modified from time to time (the “Propco II Master Lease”) without either (a) an amendment to or 

waiver under the Propco II Master Lease in accordance with its terms and all consents required (if 

any) under the Propco II Master Lease, that certain Loan Agreement, dated as of November 3, 

2016, among Propco II as Borrower, Goldman Sachs Mortgage Company and Bank of America 

N.A. as Lender (the “Propco II Loan Agreement”) and each of the other Loan Documents (as 

defined in the Propco II Loan Agreement), and all consents required (if any) under the Mezzanine 

Loan Agreement and each of the other Loan Documents (as defined in the Mezzanine Loan 

Agreement), or (b) the entry of a further order of this Court, in either case, permitting such action, 

and all parties reserve all rights, remedies, and positions with respect to any proceedings regarding 

a request for such further Court order; (ii) nothing in this Order or the Bidding Procedures shall 

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affect the relief granted or any of the Debtors’ obligations under the Agreed Order to Provide 

Adequate Protection to the TRU Trust 2016-Toys, Commercial Mortgage Pass-Through 

Certificates, Series 2016-Toys Pursuant to 11 U.S.C. §§ 361, 362, 363, 503, and 507 [Docket No. 

1003] (the “Propco II Adequate Protection Order”); and (iii) nothing herein shall be construed as 

a waiver of any rights, claims, or defenses of the Debtors’ estates, the Trust, the Special Servicer, 

or the Lender (as defined in the Mezzanine Loan Agreement) under, as applicable, the Loan 

Documents (as defined in the Propco II Loan Agreement), the Propco II Master Lease, or the 

Propco II Adequate Protection Order, all of which rights, claims, and defenses are expressly 

reserved. For the avoidance of doubt, Debtor Propco II is entitled to all of the relief provided by 

this Order in its capacity as tenant under its third-party leases and related property documents.

The Debtors are authorized to establish an escrow account to accept deposits from 

Qualified Bidders and may pay any reasonable fees related to such account. Any deposits made 

by Qualified Bidders into the Escrow Account shall not be property of the Debtors.

In the event of any inconsistencies between this Order and the Motion, this Order 

shall govern. In the event of any inconsistencies between this Order and the Bidding Procedures, 

the Bidding Procedures shall govern, except with respect to paragraph 43 of this Order, which shall 

govern notwithstanding any inconsistencies in the Bidding Procedures.

Nothing in this Order or in the Bidding Procedures shall apply to the Debtor Toys 

“R” Us (Canada) Ltd. Toys “R” Us (Canada) Ltee (“Toys Canada”), which shall be permitted to 

take such actions with respect to the subject matter of this Order as may be authorized pursuant to 

the Companies’ Creditors Arrangement Act (Canada) (the “CCAA”), the Initial Order or any other 

Order of the Ontario Superior Court of Justice (Commercial List) in the CCAA proceedings in 

respect of Toys Canada.

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The requirement under Local Bankruptcy Rule 9013-1(b) to file a memorandum of 

law in connection with the Motion is waived.

The requirement under Local Bankruptcy Rule 6004-2(B) to submit objections at 

least seven (7) days prior to a proposed sale of assets outside the ordinary course of business is 

waived.

Notice of the Motion as provided therein shall be deemed good and sufficient notice 

as to such Motion and the requirements of the Bankruptcy Rules and the Local Bankruptcy Rules 

for the Eastern District of Virginia are satisfied by such notice.

Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order 

shall be immediately effective and enforceable upon its entry.

The Debtors are authorized to take all actions necessary to effectuate the relief 

granted in this Order in accordance with the Motion.

This Court retains exclusive jurisdiction with respect to all matters arising from or 

related to the implementation of this Order.

Dated: __________

Richmond, Virginia THE HONORABLE KEITH L. PHILLIPS

UNITED STATES BANKRUPTCY JUDGE

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WE ASK FOR THIS:

/s/ Jeremy S. Williams 

Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

- and -

Edward O. Sassower, P.C.

Joshua A. Sussberg, P.C. (admitted pro hac vice)

KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS INTERNATIONAL LLP

601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile: (212) 446-4900

- and -

James H.M. Sprayregen, P.C.

Anup Sathy, P.C. 

Chad J. Husnick, P.C. (admitted pro hac vice)

Emily E. Geier (admitted pro hac vice)

KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS INTERNATIONAL LLP

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Co-Counsel to the Debtors and 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/ Jeremy S. Williams

 

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Exhibit 1

Bidding Procedures

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Edward O. Sassower, P.C. James H.M. Sprayregen, P.C.

Joshua A. Sussberg, P.C. (admitted pro hac vice) Anup Sathy, P.C.

KIRKLAND & ELLIS LLP Chad J. Husnick, P.C. (admitted pro hac vice)

KIRKLAND & ELLIS INTERNATIONAL LLP Emily E. Geier (admitted pro hac vice)

601 Lexington Avenue KIRKLAND & ELLIS LLP

New York, New York 10022 KIRKLAND & ELLIS INTERNATIONAL LLP

Telephone: (212) 446-4800 300 North LaSalle

Facsimile: (212) 446-4900 Chicago, Illinois 60654

Telephone: (312) 862-2000

-and- Facsimile: (312) 862-2200

Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

TOYS “R” US, INC., et al.,

1

) Case No. 17-34665 (KLP)

)

Debtors. ) (Jointly Administered)

)

BIDDING PROCEDURES 

FOR THE DISPOSITION OF THE 

REMAINING REAL ESTATE ASSETS OF TOYS DELAWARE

On [•], 2018 the United States Bankruptcy Court for the Eastern District of Virginia 

(the “Court”) entered the Order (I) Establishing Bidding Procedures for the Remaining Real Estate 

Assets of Toys Delaware and (II) Granting Related Relief (the “Bidding Procedures Order”),2by 

which the Court approved the following procedures. These Bidding Procedures set forth the 

process by which the Debtors are authorized to conduct an auction (the “Auction”) for the sale of 

 

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting 

Related Relief [Docket No. 78]. The location of the Debtors’ service address is One Geoffrey Way, Wayne, 

New Jersey 07470.

2

All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Bidding 

Procedures Order or the Debtors’ Motion for Entry of an Order (I) Establishing Bidding Procedures for the 

Remaining Real Estate Assets of Toys Delaware and (II) Granting Related Relief [Docket No. [•]] (the “Motion”).

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the remaining real property and commercial leases of Toys “R” Us-Delaware, Inc. (”Toys 

Delaware,” and such assets, the “Remaining Real Estate Assets”).

A. Solicitation Process; Distribution of Bidding Procedures.

For any sale of the Remaining Real Estate Assets in these chapter 11 cases (the 

“Bankruptcy Case”), Toys “R” Us, Inc. and affiliated Debtors (the “Debtors”), A&G Realty 

Partners, LLC (“A&G”), and/or any such other agent of the Debtors shall, at the Debtors’ direction, 

distribute these Bidding Procedures to any potential interested bidders. The Debtors, in the 

exercise of their reasonable business judgment may elect to exclude any Remaining Real Estate 

Assets from these Bidding Procedures and sell such Remaining Real Estate Assets at either a 

private or public sale, subject to Bankruptcy Court approval of any alternative sale method. 

Furthermore, the Debtors may determine in their discretion whether to proceed with a sale of any 

Remaining Real Estate Asset pursuant to these Bidding Procedures.

B. Eligibility of Bidders to Participate in Auction. 

(i) In order to be eligible to bid for the sale of any real estate in this Bankruptcy Case 

subject to bidding process or otherwise participate in the Auction (as defined 

below), each bidder must be determined, in the sole discretion of the Debtors, to be 

a Qualified Bidder (as defined below). The Debtors shall have the sole right to 

determine whether a bidder is a Qualified Bidder. 

(ii) Any counterparty to a Lease proposed to be sold or transferred at the Auction 

(“Lease Counterparty”) shall be deemed a Qualified Bidder. The Trust shall be 

deemed a Qualified Bidder with respect to any Remaining Real Estate Assets 

owned by Toys “R” Us Property Company II, LLC (“Propco II,” and such assets, 

the “Propco II Real Estate Assets”). The Special Servicer of the Trust’s mortgage 

loan to Propco II may submit, on behalf of the Trust, bids (including credit bids) on 

any Propco II Remaining Real Estate Assets that the Debtors seek to sell at the 

Auction. 

C. Qualification of Bidders.

Except as otherwise set forth herein, in order to be considered for status as a Qualified 

Bidder and to have a Qualified Bid, a bidder must:

(i) Deliver to A&G Realty Partners, LLC, c/o Emilio Amendola, 445 Broadhollow 

Road, Suite 410, Melville, NY 11747; email: emilio@agrealtypartners.com; Tel: 

(631) 465-9507; Fax: (631) 420-4499; with copy to the Debtors’ counsel, Kirkland 

& Ellis LLP, c/o Emily E. Geier, Joshua M. Altman, and Kevin S. McClelland, 300 

N. LaSalle Drive, Chicago, IL 60654; email: emily.geier@kirkland.com, 

josh.altman@kirkland.com, kevin.mcclelland@kirkland.com; Tel: 

(312) 862-2200; Fax: (312) 862-2200; and with copy to the Official Committee of 

Unsecured Creditors, Kramer Levin Naftalis & Frankel LLP, c/o Adam C. Rogoff, 

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Rachael Ringer, and Nathaniel Allard, 1177 Avenue of the Americas, New York, 

New York 10036, email: arogoff@kramerlevin.com, rringer@kramerlevin.com, 

nallard@kramerlevin.com; tel: 212-715-9100; fax: 212-715-8265, so as to be 

received before 5:00 p.m. (prevailing Eastern time) on the Bid Deadline, a written 

offer to purchase the Remaining Real Estate Assets at issue (a “Qualified Bid”) 

that:

(a) Consists of an executed form of the applicable agreement for sale that 

may not deviate substantially from the terms of the applicable form 

purchase agreement attached hereto as Exhibit A (such bidder’s 

executed agreement, the “Bidder PA”). If the Bid is to purchase a parcel 

of owned property, the Bid must include an executed form of the 

Purchase and Sale Agreement attached hereto as Exhibit A-1. If the 

Bid is purchase a lease to which the Bidder is not currently a party, the 

Bid must include an executed form of the Assumption and Assignment 

Agreement attached hereto as Exhibit A-2. If the Bid is to purchase a 

lease to which the Bidder is currently a party, the Bid must include an 

executed form of the Lease Termination Agreement attached hereto as 

Exhibit A-3. 

(b) A Qualified Bid must also include (i) a Microsoft Word copy of the 

applicable form agreement and (ii) a PDF “redline” showing any 

proposed revisions to the form agreement. Any bidder may propose to 

purchase more than one Remaining Real Estate Asset. The purchase 

agreement shall be marked to reflect differences as to the Remaining 

Real Estate Assets proposed to be purchased.

(c) A Qualified Bid must be accompanied by a completed bidder 

registration form, substantially in the form attached hereto as Exhibit B

(the “Bidder Registration Form”), which must detail which of the 

Remaining Real Estate Assets up for sale the Qualified Bidder proposes 

to purchase and list an allocation of a portion of the aggregate proposed 

purchase price to each Remaining Real Estate Asset included in its total 

Bid. A single bidder or group of bidders may purchase all or a portion 

of the Remaining Real Estate Assets. If a bidder or group of bidders 

submits an offer for a combination of Remaining Real Estate Assets, 

such bidder or group of bidders must (i) indicate if it would be willing 

to purchase any of such assets if not sold as a group and, if so, (ii) 

include a schedule indicating the Bid as to any individual or sub-group 

of assets that such bidder would purchase and the allocation of a portion 

of the aggregate purchase price for any subgroup to each Remaining 

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Real Estate Asset in such subgroup. The Debtors reserve the right to 

determine whether to auction any assets as part of a group or 

individually up through and including at the Auction or to conduct an 

Auction of any Remaining Real Estate Asset both individually and as 

part of a group in order to determine which option maximizes value of 

the assets.

(d) The Debtors reserve the right to set a minimum bid for each of the 

Remaining Real Estate Assets (which minimum bid may vary by asset).

(e) Contains no contingencies to the validity, effectiveness, and/or binding 

nature of the bid, including without limitation, contingencies for due 

diligence and inspection or financing of any kind.

(f) Contains documentation acceptable to the Debtors evidencing that the 

bidder has financial resources sufficient to close the transaction within 

twenty-one (21) days after the Auction which evidence may include, 

without limitation, evidence of cash on hand, a binding financing 

commitment from an established and financially sound financial 

institution or investment fund and the identity of contact persons at the 

entity issuing such commitment letter.

(g) Demonstrates, to the Debtors’ satisfaction, that the bidder has the legal 

capacity to consummate the transaction it is proposing. 

(h) Includes a statement from the bidder that: (i) it is prepared to enter into 

and consummate the transactions contemplated in the Bidder PA 

immediately upon entry by the Bankruptcy Court of an order approving 

the sale of the real estate to such bidder; and (ii) the Qualified Bid, if 

determined to be a Successful Bid (defined below) or Backup Bid 

(defined below), will then be irrevocable for a period of thirty (30) days 

after the conclusion of the Auction.

(i) Includes audited and unaudited financial statements, tax returns, bank 

account statements, and a description of the proposed business to be 

conducted at the premises and/or any other documentation that the 

Debtors further request (the “Adequate Assurance Package”). The 

Adequate Assurance Package should be submitted in its own compiled 

PDF document.

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(j) Subparagraphs C(i)(c), C(i)(f), and C(i)(i) shall not apply to Lease 

Counterparties bidding on Contracts to which they are party.

(ii) ALL QUALIFIED BIDS SHALL BE DEEMED IRREVOCABLE, 

NOTWITHSTANDING ANY CONDITIONS LISTED IN THE 

APPLICABLE AGREEMENT. IN THE EVENT THAT A BIDDER SEEKS 

TO REVOKE SUCH BID, THE DEBTORS SHALL BE ENTITLED TO 

KEEP SUCH BIDDER’S DEPOSIT AND PURSUE ALL OTHER 

CONTRACTUAL REMEDIES UNDER LAW OR EQUITY.

(iii) Contemporaneous with the submission of a Bid, tender an earnest money deposit 

of ten percent (10.0%) of the proposed purchase price for the sale of the real estate 

(the “Qualified Bidder Deposit”) by cashier’s or certified check or wire transfer of 

immediately available funds, which deposit shall be held in an escrow account in 

accordance with the terms of the Bidder PA.3 The wire transfer or check memo 

line must include (a) the company name listed on the Bidder Registration Form and 

(b) the store name, store address, and store number of the store(s) that correspond 

to the bid. 

(iv) A Qualified Bidder Deposit will be refunded only if (a) the bid corresponding to 

the Qualified Bidder Deposit is rejected; or (b) the bid corresponding with the 

Qualified Bidder Deposit is not approved by the Bankruptcy Court. The Debtors 

reserve the right to hold each Qualified Bidder Deposit until five (5) days after the 

closing of the sale of the Remaining Real Estate Assets, but the Debtors may refund 

the full Qualified Bidder Deposit any time after the Sale Hearing. The provisions 

of this subparagraph (iv) shall apply to Qualified Bidders and control 

notwithstanding any conflicting provisions in the Bidder PA. Notwithstanding the 

foregoing, any Lease Counterparty Bidder may submit a Bid to acquire any Lease 

without submitting a Qualified Bidder Deposit.

(v) The Qualified Bidder agrees the Adequate Assurance Package may be disseminated 

to the affected Lease Counterparty if such Qualified Bidders’ Bid is determined to 

be a Qualified Bid. Prior to receiving any Adequate Assurance Package, the Lease 

Counterparty must agree to keep all the information contained therein confidential. 

If the requesting Lease Counterparty has submitted a ROFR Notice (as defined 

below) prior to the Bid Deadline, and the Debtors have confirmed such right of first 

refusal is valid under nonbankruptcy law, the Debtors shall provide the applicable 

Adequate Assurance Package and purchase price to such Lease Counterparty as 

 

3 For the avoidance of doubt, these funds are not property of the Debtors.

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soon as reasonably practicable after the determining the applicable bidder is a 

Qualified Bidder, but in all cases one day prior to the Auction.

D. Rejection of “Qualified Bid” Status for Non-Conforming Bids. 

The Debtors shall provide a copy of each bid received by the Debtors on or prior to the Bid 

Deadline to the Consultation Parties as soon as reasonably practicable after the Debtors receive 

such bid. The Debtors shall determine in their discretion which bids qualify as Qualified Bids and 

which bids shall be rejected as non-confirming bids. The Debtors shall have the right to reject bids 

as non-conforming bids; provided, however, the Debtors shall have the right to negotiate with any 

bidder with respect to clarification of any bid.

E. Expense Reimbursement, Work Fee, and Breakup Fee.

Subject to entry of the Sale Order, the Debtors shall be further authorized, but not obligated, 

in an exercise of their business judgment, to (a) select no more than one Qualified Bidder, to act 

as a stalking horse bidder (a “Stalking Horse Bidder”) in connection with the Auction and (b) in 

connection with any staking horse agreement with a Stalking Horse Bidder, provide for a breakup 

fee (the “Breakup Fee”), in an amount not to exceed three percent (3%) of the proposed purchase 

price (inclusive of any Expense Reimbursement or Work Fee, each as defined below); provided, 

however, any Breakup Fee will not be binding on the Debtors until entry of the Sale Order; 

provided further, however, that no Breakup Fee shall be paid to a credit bidder, insider, or member 

of the Committee. The Breakup Fee shall be allocated among the Remaining Real Estate Assets 

included in the Stalking Horse Bidder’s bid in the same proportion as the allocation of its aggregate 

purchase price among Remaining Real Estate Assets listed on the Stalking Horse Bidder’s Bidder 

Registration Form. The amount of any Expense Reimbursement or Work Fee paid to any Stalking 

Horse Bidder pursuant to these Bidding Procedures shall be deducted from the Breakup Fee, if 

payable. Any Breakup Fee, Expense Reimbursement, or Work Fee shall be payable solely from 

the proceeds of the sale of Remaining Real Estate Assets to a Successful Bidder or Successful 

Bidders.

Subject to entry of the Sale Order, the Debtors shall be authorized, but not obligated, in an exercise 

of their business judgment, to close an agreement, if any, to reimburse the reasonable and 

documented out-of-pocket fees and expenses of one or more Stalking Horse Bidders (each, an 

“Expense Reimbursement”), and/or agree to pay one or more Stalking Horse Bidders a “work fee” 

or other similar cash fee (each, a “Work Fee”) if the Debtors reasonably determine in their business 

judgment that any such Expense Reimbursement or Work Fee will encourage one or more parties 

to submit a Qualified Bid or result in a competitive bidding and Auction process. For the avoidance 

of doubt, the Debtors will provide Expense Reimbursements and/or Work Fees only to the Stalking 

Horse Bidder and such expenses must be reasonable, documented, and subject to review by the 

Debtors. Subject to entry of the Sale Order, the Debtors shall be authorized to indefeasibly pay 

any such amounts to such Stalking Horse Bidders pursuant to section 363(b)(1) of the Bankruptcy 

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Code and any such amounts paid by the Debtors to such Stalking Horse Bidders will not be subject 

to disgorgement irrespective of whether the Stalking Horse Bidders receiving such reimbursements 

or payments are ultimately the Successful Bidder as long as such Stalking Horse Bidder acted in 

good faith. 

F. Due Diligence.

Any Qualified Bidder may request diligence from the Debtors, and the Debtors may grant 

or deny the request. The Debtors may require such Qualified Bidder to execute a non-disclosure 

agreement prior to providing diligence to such Qualified Bidder.

G. Bid Deadline. 

All Qualified Bids must be submitted to A&G, with a copy to the Debtors’ counsel and 

counsel to the Official Committee of Unsecured Creditors in accordance with paragraph C (above), 

so as to be received not later than the Bid Deadline. 

H. Terms of Auction.

In the event that one or more Qualified Bids are submitted in accordance with these Bidding 

Procedures, the Debtors will conduct an auction sale of the Remaining Real Estate Assets (the 

“Auction”) on the following terms:

(i) Time, Date and Location of Auction; Adjournment of Auction; Appearance of 

Qualified Bidders at Auction. The Auction will take place at the offices of 

Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022. The Auction 

will be conducted on the date and time listed in the Auction and Hearing Notice. 

The Debtors will send written notice of the date, time, and place of the Auction to 

the Qualified Bidders no later than two business days before such Auction, and file 

a notice of the date, time, and place of the Auction with the Court no later than two 

business days before such Auction and post such notice on the Debtors’ Case 

Website: http://www.cases.primeclerk.com/toysrus. The Debtors may modify the 

date, time, and place of the Auction by providing written notice to Qualified 

Bidders and filing a notice with the Court so long as such notice is no later than two 

days before the Auction.

(ii) Permitted Attendees at Auction. Unless otherwise ordered or directed by the 

Bankruptcy Court, only representatives of the Debtors, any other parties invited 

specifically by the Debtors, the Consultation Parties, Lease Counterparties, the 

Special Servicer, and any Qualified Bidders (and the professionals for each of the 

foregoing) shall be entitled to attend the Auction; provided that, only (i) Special 

Servicer, (ii) Lease Counterparties that have either submitted a Qualified Bid or 

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affirmatively provided evidence of a right of first refusal in writing (the 

“ROFR Notice”) by the Bid Deadline, and (iii) other Qualified Bidders that have 

submitted Qualified Bids by the Bid Deadline shall be entitled to bid at the Auction. 

The Special Servicer shall not be required to submit a Qualified Bid prior to the 

Auction to bid on Propco II Real Estate Assets at the Auction. Any permitted 

attendee may attend the Auction telephonically; provided that such permitted 

attendee must provide actual notice to A&G that it will make such an appearance 

at least one day prior to the Auction.

(iii) Auction Bid Submission Procedures. Auction bidding shall be subject to the 

following procedures:

(a) For a Qualified Bid to be considered and in order for a Qualified Bidder 

to further bid at the Auction, Qualified Bidders must appear in person 

at the Auction, or through a duly authorized representative, unless 

alternative arrangements are agreed upon in advance by the Debtors.

(b) Only Qualified Bidders shall be entitled to make any subsequent bids at 

the Auction.

(c) Bidding will commence with the announcement of the highest and best 

Qualified Bid with respect to each Remaining Real Estate Asset or 

group thereof, which shall be determined solely by the Debtors in their 

business judgment. Any Qualified Bidder may then submit successive 

bids in minimum increments, which will be determined by the Debtors 

at each Auction depending on the total dollar value of the Remaining 

Real Estate Assets being sold (the “Minimum Overbid Amount”). The 

Minimum Overbid Amount may be different with respect to each asset 

or group of assets being auctioned. Any Lease Counterparty that 

submits a ROFR Notice by the Bid Deadline may submit successive 

bids on the applicable Remaining Real Estate Asset(s) without offering 

any additional consideration, provided that the Debtors have determined 

such Lease Counterparty’s right of first refusal would be enforceable 

under nonbankruptcy law.

(d) If one or more Qualified Bids are received by the Debtors, each such 

Qualified Bidder shall have the right to improve its respective bid at the 

Auction.

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(e) Each successive bid submitted by any bidder at the Auction must 

contain an actual cash purchase price that exceeds the then existing 

highest bid by at least the Minimum Overbid Amount.

(f) At commencement of the Auction, the Debtors may announce 

procedural and related rules governing the Auction, including time 

periods available to all Qualified Bidders to submit successive bid(s) in 

an amount equivalent to at least the Minimum Overbid Amount.

(iv) No Collusion. Each Qualified Bidder participating at the Auction will be required 

to confirm on the record at the Auction that (i) it has not engaged in any collusion 

with respect to the bidding, and (ii) its Qualified Bid is a good-faith bona fide offer 

and it intends to consummate the proposed transaction if selected as the Successful 

Bidder.

(v) Selection of Successful Bid. The Auction shall continue until there is only one bid 

remaining to purchase a certain portion or all of the Remaining Real Estate Assets 

that the Debtors determine in their sole discretion, and in consultation with the 

Consultation Parties, subject to Bankruptcy Court approval, is the highest and/or 

best Qualified Bid (such bid, the “Successful Bid” and such bidder, the “Successful 

Bidder”). For the avoidance of doubt, if there are any Qualified Bids for different 

portions of the Remaining Real Estate Assets, there may be multiple Successful 

Bidders. In making this decision, each Debtor shall consider the amount of the 

purchase price, the form of consideration being offered, the contents of the Bidder 

PA, the likelihood of such Qualified Bidder’s ability to close the transaction, the 

timing thereof, and the net benefit to the estates. Each Debtor reserves the right to 

select the Successful Bid, even if it is not the highest bid; provided that in the event 

a Stalking Horse Bidder is selected by the Debtors and is not the Successful Bidder, 

the aggregate amount of the Successful Bid or Successful Bids (other than credit 

bids) must exceed the amount of the Stalking Horse Bid plus the Breakup Fee 

payable to the Stalking Horse Bidder plus the aggregate amount of Expense 

Reimbursement or Work Fees paid or payable to the Stalking Horse Bidder. The 

Debtors reserve the right to not select any Successful Bid or Successful Bidder with 

respect to any Remaining Real Estate Asset or group thereof. The Successful 

Bidder shall have such rights and responsibilities of the purchaser, as set forth in 

the Bidder PA. Prior to the Sale Hearing, the Successful Bidder shall complete and 

execute a final and revised Bidder PA, as necessary to conform to the terms of the 

Auction, and all other agreements, contracts, instruments, and other documents 

evidencing and containing the terms and conditions upon which the Successful Bid 

was made (such documents collectively, the “Successful Bidder Sale Documents”). 

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The Successful Bid shall be irrevocable for a period of thirty (30) days after the

conclusion of the Auction.

(vi) Selection of Backup Bidder. The bidder of the second highest and best bid for a 

portion or all of the Remaining Real Estate Assets, as determined by the Debtors in 

their discretion, may be deemed a backup bidder (such bidder the “Backup Bidder” 

and such bid the “Backup Bid”). Notwithstanding the foregoing, the Trust shall not 

be required to serve as the Backup Bidder. For the avoidance of doubt, if there are 

Qualifying Bids for different portions of the Remaining Real Estate Assets, there 

may be multiple Backup Bidders. If the Debtors so designate a bidder as a Backup 

Bidder, such Backup Bidder shall be required to complete and execute a purchase 

agreement in form and substance reasonably acceptable to the Debtors 

memorializing, among other things, the amount of the Backup Bid (the “Backup 

Bidder PA”). Upon the failure of the Successful Bidder to timely consummate its 

purchase of the Remaining Real Estate Assets, pursuant to the terms of the 

Successful Bidder Sale Documents, the Debtors shall promptly file a supplemental 

notice seeking to approve the sale to the Backup Bidder, if applicable, on expedited 

notice and a hearing. The Backup Bidder PA shall be irrevocable for a period of 

thirty (30) days after the conclusion of the Auction. 

(vii) Irrevocability of Bids; Rejection of Bids. A Qualified Bid must be irrevocable 

unless and until the Debtors accept a higher Bid and such Qualified Bidder is not 

selected as the Backup Bidder. Unless determined by the Debtors to be the 

Successful Bid or Backup Bid, all other Qualified Bids and all other successive bids 

at the Auction shall be deemed rejected at the conclusion of the Auction. 

Notwithstanding the foregoing, all bids shall be deemed rejected on the Sale 

Closing Deadline; provided, however, in the event the Successful Bidder does not 

close for any given Remaining Real Estate Asset, and the Debtors promptly file a 

supplemental notice on or before the Sale Closing Deadline, seeking to approve the 

sale to the Backup Bidder, if applicable, on expedited notice and a hearing, such 

bids shall remain irrevocable until the transaction is approved and closed, or 

rejected by the Court.

I. Sale Hearing. 

The Bankruptcy Court shall hold a Sale Hearing on the date listed in the Auction and 

Hearing Notice to approve the Sale of the Remaining Real Estate Assets, if any. The Sale Hearing 

will be held at the United States Bankruptcy Court for the Eastern District of Virginia. At the Sale 

Hearing, the Debtors will seek entry of an order approving and authorizing the proposed sale to 

the Successful Bidder(s), if any. The Debtors shall also notify the Bankruptcy Court of the Backup 

Bidder, if any. The Debtors shall ascertain whether the Successful Bidder and the Backup Bidder 

are insiders of one or more of the Debtors, whether the sale represents an arm’s-length transaction 

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between the parties, made without fraud or collusion, and whether there has been any attempt by 

either party to take any unfair advantage of the other such that the Successful Bidder or Backup 

Bidder may be deemed to be purchasing the Remaining Real Estate Assets in good faith pursuant 

to 11 U.S.C. § 363(m). At the Sale Hearing, the Debtors shall make a record of these findings 

with respect to the Successful Bidder and any order approving the Sales shall include such findings 

in order to approve the sale to the Successful Bidder(s), pursuant to 11 U.S.C. § 363(m). The Sale 

Hearing may be adjourned or rescheduled without notice other than by announcement of the 

adjourned date at the Sale Hearing or the Debtors’ filing notice of a rescheduled Sale Hearing with 

the Court.

In the event the Successful Bidder does not close for any given Remaining Real Estate 

Asset, the Debtors will promptly file a supplemental notice on or before the Sale Closing Deadline, 

seeking to approve the sale to the Backup Bidder. The Backup Bidder (as identified by the Notice 

of Successful and Backup Bidders) shall not be approved at the Sale Hearing.

J. Closing. 

The closing of the sale of the Remaining Real Estate Assets will occur no later than the 

Sale Closing Deadline, in accordance with the terms of the Successful Bidder Sale Documents or 

the purchase agreement of the entity otherwise authorized by the Bankruptcy Court to purchase 

the Remaining Real Estate Assets, as applicable.

K. Failure of Successful Bidder to Consummate Purchase. 

If the Successful Bidder fails to consummate the purchase of the Remaining Real Estate 

Assets pursuant to the terms of the Successful Bidder Sale Documents, and such failure is the result 

of the Successful Bidder’s breach of, or default or failure to perform under any Successful Bidder 

Sale Documents or the terms of these Bidding Procedures (the “Defaulting Bidder”), such 

Defaulting Bidder’s Qualified Bidder Deposit shall be forfeited to the Debtors as liquidated 

damages, and the Debtors shall have all rights and remedies available under applicable law.

L. Disclosures.

Qualified Bidders shall disclose to the Debtors all communications with other Qualified 

Bidders following the submission of a Qualified Bid until the sale of the Remaining Real Estate 

Assets is consummated.

M. Commissions. 

Subject to section E hereof, the Debtors shall be under no obligation to pay commission to 

any agent or broker, with the exception of any agent or broker retained by the Debtors. All 

commissions, fees, or expenses for agents, other than as retained by the Debtors, may be paid by 

bidders at such bidder’s discretion. In no case shall any commissions, fees, or expenses be 

deducted from the proceeds of the sale of the Remaining Real Estate Assets or the agreed 

Successful Bid, subject to section E hereof.

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N. Consultation Parties. 

The term “Consultation Parties” as used in these Bidding Procedures shall mean: (i) the 

official committee of unsecured creditors (the “Committee”); (ii) counsel and financial advisor to 

the group of term B-4 lenders (the “B-4 Lenders”); and counsel and financial advisor to the DIP 

ABL Agent. In the event that any Consultation Party, any member of the Committee, or any 

affiliate of any of the foregoing submits a bid for any Remaining Real Estate Asset at the Auction 

under these Bidding Procedures, any obligation of the Debtors to consult with such bidding party 

pursuant to these Bidding Procedures, solely with respect to any Remaining Real Estate Asset on 

which such party placed a bid, will be suspended without further action until such party advises 

the Debtors and the other Consultation Parties that it has irrevocably withdrawn its bid for such 

Remaining Real Estate Assets, at which time such party’s consultation privileges will be reinstated. 

If a member of the Committee submits a Qualifying Bid, counsel and financial advisors to the 

Committee will continue to have consultation rights as set forth in these Bidding Procedures; 

provided that the such advisors shall exclude such member from any discussions of deliberations 

regarding the sale of the Remaining Real Estate Assets in question and shall not provide any 

information regarding the sale of the Remaining Real Estate Assets to such member.

Prior to the Bid Deadline, the Debtors’ counsel shall provide all diligence that the Debtors 

and/or their advisors receive to the Consultation Parties, and respond to any inquiries from the 

Consultation Parties regarding the sales as soon as reasonably practicable. As soon as reasonably 

practical following the Bid Deadline, the Debtors shall provide access to the data room to the 

Consultation Parties. Following the Bid Deadline, the Debtors shall consult with the Consultation 

Parties prior to making all material decisions prior to the Auction (including for the avoidance of 

doubt, selection of a Stalking Horse Bidder), and shall consult with the Consultation Parties present 

at the Auction prior to making all material decisions at the Auction (including, for the avoidance 

of doubt, minimum bids and bidding increments and the selection of Successful Bidders and 

Backup Bidders). The failure to specifically identify consultation rights in any section of these 

Bidding Procedures and/or the Bidding Procedures Order shall not limit or otherwise impair the 

rights of the Consultation Parties to consult with the Debtors.

O. No Representation; Qualified Bidder’s Duty to Review. 

The Debtors are not making and have not at any time made any warranties or 

representations of any kind or character, express or implied, with respect to the Remaining Real 

Estate Assets, including, but not limited to, any warranties or representations as to habitability, 

merchantability, fitness for a particular purpose, title, zoning, tax consequences, latent or patent 

physical or environmental condition, utilities, operating history or projections, valuation, 

governmental approvals, the compliance of the Remaining Real Estate Assets with governmental 

laws (including, without limitation, accessibility for handicapped persons), the truth, accuracy, or 

completeness of any documents related to the Remaining Real Estate Assets, or any other 

information provided by or on behalf of the Debtors to a bidder, or any other matter or thing 

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regarding the Remaining Real Estate Assets. All bidders must acknowledge and agree that upon 

closing the Debtors shall sell and transfer to the Successful Bidder and the Successful Bidder shall 

accept the Remaining Real Estate Assets “AS-IS, WHERE IS, WITH ALL FAULTS,” except to 

the extent expressly provided otherwise in the Bankruptcy Court’s order approving the sale. All 

bidders must agree that they have not relied on and will not rely on, and the Debtors are not liable 

for or bound by, any express or implied warranties, guaranties, statements, representations, or 

information pertaining to the Remaining Real Estate Assets or relating thereto (including 

specifically, without limitation, information regarding the Remaining Real Estate Assets 

distributed with respect to such real estate) made or furnished by the Debtors or any real estate 

broker or agent representing or purporting to represent the Debtors, to whomever made or given, 

directly or indirectly, orally or in writing, unless specifically set forth in the Bankruptcy Court’s 

order approving the sale.

P. Reservation of Rights. 

The Debtors reserve their rights to modify these Bidding Procedures, other than 

paragraphs B(ii), C(i)(c), H (ii), H(iii)(c), H(iv), N, and R, in their business judgment, with the 

consent of the Committee for all material modifications (which consent shall not be unreasonably 

withheld), in any manner that will best promote the goals of these Bidding Procedures, or impose, 

at or prior to the Auction, additional customary terms and conditions on Sales, including, without 

limitation: (a) extending the deadlines set forth in these Bidding Procedures; (b) adjourning the 

Auction at the Sale Hearing; (c) adding procedural rules that are reasonably necessary or advisable

under the circumstances for conducting the Auction; (d) canceling the Auction; and (e) rejecting 

any or all Bids or Qualified Bids. Nothing in these Bidding Procedures shall abrogate the fiduciary 

duties of the Debtors.

Q. Consent to Jurisdiction.

All Qualified Bidders at the Auction shall be deemed (i) to have consented to the 

jurisdiction of the Court and (ii) to have waived any right to a jury trial in connection with any 

disputes relating to the Auction, the construction, and enforcement of these Bidding Procedures.

R. Return of Qualified Bidder Deposit.

The Qualified Bidder Deposit of the Successful Bidder shall be applied to the purchase 

price of any transaction that closes with respect to that Qualified Bidder. The Qualified Bidder 

Deposits for each Qualified Bidder shall be held in one or more escrow accounts on terms 

acceptable to the Debtors and shall be returned (other than with respect to the Successful Bidder 

and the Backup Bidder) on the date that is five business days after the close of the Sales, or as soon 

as is reasonably practicable thereafter.

If a Successful Bidder (or Backup Bidder, as applicable) fails to consummate a proposed 

transaction because of a breach by such Successful Bidder (or Backup Bidder, as applicable), the 

Qualified Bidder Deposit shall be released to the Debtors and the Debtors shall not have any 

obligation to return the Qualified Bidder Deposit deposited by such Successful Bidder (or Backup 

Bidder, as applicable). Such Qualified Bidder Deposit released to the Debtors may be retained by 

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the Debtors as liquidated damages, in addition to any and all rights, remedies, or causes of action 

that may be available to the Debtors and their estates.

S. Fiduciary Out.

Nothing in these Bidding Procedures shall require each Debtor’s management or board of 

directors to take any action, or to refrain from taking any action, with respect to these Bidding 

Procedures, to the extent each Debtor’s management or board of directors determines, or based on 

the advice of counsel, that taking such action, or refraining from taking such action, as applicable, 

is required to comply with applicable law or its fiduciary obligations under applicable law.

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Exhibit A-1

Form Purchase and Sale Agreement

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PURCHASE AND SALE AGREEMENT

This Purchase and Sale Agreement Subject to Bidding Process (this “Agreement”) is 

executed as of the _____ day of ____________, 2018 (the “Effective Date”), by and between 

________________ (“Seller”) and ______________________ (“Purchaser”).

RECITALS

WHEREAS, on September 18, 2017 (the “Petition Date”), Toys “R” Us, Inc. and its 

indirect and direct subsidiaries and related entities (collectively, the “Debtors”) filed voluntary 

petitions for relief under chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532 

(the “Bankruptcy Code”), in the United States Bankruptcy Court for the Eastern District of 

Virginia (the “Court”).

WHEREAS, the Debtors seek to sell real property described in Exhibit A hereof (the 

“Property”) pursuant to the terms and conditions of the Bidding Procedures for the Disposition of 

the Remaining Real Estate Assets of Toys Delaware (the “Bidding Procedures”) subject to approval 

by the the United States Bankruptcy Court for the Eastern District of Virginia in the chapter 11 

cases of In re Toys “R” Us, Inc., Case No. 17-34665 (KLP) (Bankr. E.D. Va. 2018) (the 

“Bankruptcy Cases”). 

WHEREAS, Seller believes that the Property should be sold through an orderly sale and/or 

auction process as part of the Bankruptcy Cases.

WHEREAS, Seller is willing to sell the Assets to Purchaser, and Purchaser is willing to 

purchase the Property from Seller.

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

conditions stated herein, the sufficiency of which is hereby acknowledged by the parties hereto, 

Seller and Purchaser hereby agree as follows:

AGREEMENT

1. Sale of Property. On the terms and conditions set forth in this Agreement, Seller agrees to 

sell, assign, convey, and transfer to the Purchaser, and the Purchaser agrees to purchase from the 

Debtors, all rights, title, and interests held by the Debtors in the Property. 

2. Purchase Price. 

A. Seller is to sell and Purchaser is to purchase the Property for a total of 

_________________ Dollars ($_____________) (the “Purchase Price”).

B. The Purchase Price for the Assets (exclusive of closing adjustments and costs 

provided for herein) shall be paid in the following manner: 

(i) An initial deposit in the amount of $________________ (the “Initial 

Deposit”) is due when Purchaser signs and submits this Agreement and is payable in 

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immediately available funds and shall be delivered to the Seller who shall hold such Initial 

Deposit in a segregated, non-interest bearing account (the “Account”). 

(ii) The balance of the Purchase Price, exclusive of closing adjustments and 

costs (the “Balance”), is due at the closing of the transaction contemplated hereunder (the 

“Closing”) and is payable in immediately available funds and shall be delivered to the 

Seller, who shall hold the Balance in the Account. 

C. The acceptance by Purchaser of the delivery of the Bankruptcy Trustee’s Deed at 

Closing shall be deemed to be full performance and discharge of every agreement and obligation 

(either express or implied) on the part of the Seller to be performed pursuant to this Agreement 

and no representation, warranty or agreement, express or implied, of Seller shall survive the 

Closing except those which are herein specifically stated to survive the Closing.

5. Access and Cooperation. Purchaser, its agents, employees, contractors and designees, at 

any time after the Effective Date, upon 24 hours prior written notice, and continuing through the 

Contingency Waiver Date, shall have the right to enter upon the Property during the Seller’s 

business hours for the purpose of conducting any and all Inspections, studies and investigations of 

the Property which may be desired by Purchaser. Purchaser shall not perform any invasive testing 

on the property without obtaining Seller’s prior written consent. Purchaser shall indemnify and 

hold Seller harmless from and against any and all cost, expense, liability or damage arising out of: 

(i) any injury to any person or the Property attributable to Purchaser's exercise of any of its rights 

hereunder (including, but not limited to, the entry upon the Property by Purchaser or any of its 

agents or contractors); and (ii) any mechanics liens filed against the Property or claims or demands 

made against Seller for work performed by or on the behalf of Purchaser.

6. Bankruptcy Court Approval and Sale Order. The parties’ obligations set forth in this 

Agreement are expressly subject to approval by the Bankruptcy Court (“Bankruptcy Court 

Approval”) pursuant to an Order (the “Sale Order”) approving the sale to the Purchaser. The Sale 

Order shall include factual findings and ordering provisions that provide (i) title to the Property 

shall be transferred to the Purchaser free and clear of all liens, claims, encumbrances and interests 

pursuant to Section 363(f) of the Bankruptcy Code, with all such liens, claims, encumbrances and 

interests to attach to the proceeds of the sale in the same order, priority and validity that presently 

exists; provided however, the Property shall be transferred subject to all easements, right of ways, 

leases (recorded or unrecorded), covenants, restrictions and all other exceptions of record; (ii) the 

Purchaser is purchasing the Property in “good faith” within the meaning of Section 363(m) of the 

Bankruptcy Code and, as such, is entitled to the protections offered thereby; (iii) the Agreement 

was negotiated, proposed, and entered into by the parties without collusion, in good faith and arms’ 

length bargaining position; and (iv) that stay provided under the Rule 6004(g) of the Federal Rules 

of Bankruptcy Procedure shall be waived to the extent necessary to permit a Closing to occur as 

soon as possible after entry of the Sale Order.

7. Bidding Procedures Order. The Purchaser’s right to purchase the Property is subject to 

entry of, and governed exclusively by an order entered by the Bankruptcy Court (the “Bidding 

Procedures Order”), a copy of which is attached hereto as Exhibit C, the terms and provisions of 

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which are incorporated herein by reference. Where the terms of this Agreement and the Bidding 

Procedures Order conflict, the terms of the Bidding Procedures Order will prevail.

8. Representations of Purchaser. Purchaser covenants, represents, and warrants to Seller that, 

both now and as of the Closing Date:

A. The proposed sale represents an arms-length transaction between the parties, made 

without fraud or collusion with any other person (including any other prospective bidder for the 

Property); and

B. There has been no attempt to take any unfair advantage of Seller.

9. Closing Deliveries. 

A. At Closing, Seller shall deliver to Purchaser each of the following, executed and 

acknowledged, as appropriate: (a) the Sale Order in recordable form, (b) a Bankruptcy Trustee’s 

Deed (in proper statutory form for recording) so as to transfer all of its right, title and interest in 

and to the Property, (c) a settlement sheet, and (d) such other documents required to effect a 

transfer of the Property under applicable state law. Notwithstanding anything to the contrary 

contained herein, Seller shall not be required to execute or deliver any Vendor’s Affidavit or 

Owner’s Title Affidavit.

B. At Closing, Purchaser shall deliver to Seller each of the following, executed and 

acknowledged, as appropriate: (a) a settlement sheet, and (b) such other documents reasonably 

requested by the title company handling the Closing (“Title Company”) and which are consistent 

with this Agreement to effectuate the conveyance of real property. Purchaser shall also deliver the 

Balance of the Purchase Price in accordance with Section 2 hereof. 

10. Closing Date and Office. The Closing shall take place not later than the Sale Closing 

Deadline, at the offices of the Seller’s attorney, or at such other location as may be mutually agreed 

by the parties, at a time mutually convenient for all parties; provided however, Seller has obtained 

a Sale Order by the Closing Date. Buyer to execute all closing documents offsite, and transmit to 

Title Company accordingly. In the event the Bankruptcy Court has not entered the Sale Order by 

the Closing Date, the parties may agree, in writing, to extend the Closing Date or terminate this 

Agreement, with no consequences to the Seller and/or the Bankruptcy Estate. In the event of such 

termination, the Seller shall immediately refund the Deposit to the Purchaser and neither party 

shall have any further obligation hereunder. In the event the Bankruptcy Court rejects Purchaser’s 

offer as set forth herein, the rights and remedies of the parties shall be as set forth in the Bidding 

Procedures Order. Time is of the essence with respect to Closing. 

11. Subject to Provisions. At Closing, Seller shall convey title to the Property, subject to all 

easements, covenants, restrictions, declarations or agreements of record set forth on Exhibit B

attached hereto and made a part hereof plus those matters that would be disclosed upon a visual 

inspection of the Property, but expressly excluding any mortgages, deeds of trust, tax liens, 

judgments, mechanics’ liens or other monetary encumbrances against the Property (“Permitted 

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Exceptions,” and the condition of the title subject only to the Permitted Exceptions is referred to 

herein as “Acceptable Title”).

12. Title Company Approval. Purchaser shall accept title subject to the Permitted Exceptions. 

If Purchaser desires to purchase title insurance from the Title Company (or any other title 

company), Purchaser may do so, at Purchaser’s discretion and at its sole cost and expense. Seller 

shall not be obligated to cause the Title Company to omit any Permitted Exception, including, but 

not limited to, the satisfaction of any exception to title relating to the filing of Seller’s federal or 

state tax return. Purchaser shall not have the right to terminate this Agreement if Seller is able to 

provide Acceptable Title.

13. Survey. Purchaser may order a survey of the Property, at its sole cost and expense.

14. Flood Area/Other. If the Property is located in a flood plain, the Purchaser may be required 

to carry insurance at the Purchaser’s expense. Revised flood maps and changes to Federal law 

may substantially increase future flood insurance premiums or require insurance for formerly 

exempt properties. The Purchaser should consult with one or more flood insurance agents 

regarding the need for flood insurance and possible premium increases. In the event the Property 

requires flood insurance, the Purchaser may not terminate this Agreement. The Purchaser may not 

terminate this Agreement if the Property is subject to building or use limitations by reason of the 

location which materially interfere with the Purchaser’s intended use of the Property.

15. Insurance and Risk of Loss. The Seller shall cause the insurance on the Property to be 

canceled as of the Closing Date. In the event that, prior to the Closing, all or any portions of the 

Property, any interests therein, or any rights appurtenant thereto are taken or appropriated (either 

permanently or for temporary periods) under the power of eminent domain or condemnation by 

any authority having such power, or by virtue of any actions or proceedings in lieu thereof, or if 

any notice or threat of such taking or appropriation has been given or is pending at the Closing 

Date, then the Purchaser, at his or her option, may either (a) terminate this Agreement by written 

notice to the Seller, and upon receipt of such written notice, the Seller shall immediately refund 

the Deposit to the Purchaser and neither party shall have any further obligation hereunder, or (b) 

elect to proceed with Closing, in which event the Purchase Price shall be reduced by an amount 

equal to any sums actually received by the Seller from the condemning authority by reason of such 

taking, appropriation or action or proceeding in lieu thereof. In the event the Property is damaged 

prior to closing, and there is no insurance to cover the loss, either the Purchaser or the Seller can 

terminate this Agreement, by written notice to the other party. In such an event, the Seller shall 

immediately refund the Deposit to the Purchaser and neither party shall have any further obligation 

hereunder. In the event the Property is damaged prior to Closing, and there is insurance to cover 

the loss, then Purchaser shall proceed with Closing in which event the Purchase Price shall be 

reduced by all insurance proceeds payable in respect of such damage collected by Seller before the 

Closing Date and Seller shall assign to Purchaser all of Seller’s rights, title and interest in and to 

all such insurance proceeds not collected by Seller before Closing Date.

16. Acceptance of State and Municipal Department Violations and Orders. Purchaser accepts 

the Property subject to all notes or notices of violations, known or unknown, of law or municipal 

ordinances, orders or requirements noted in or issued by any governmental department having 

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authority as to lands, housing, buildings, fire and health and labor conditions affecting the 

Property. This provision shall survive Closing. 

17. Closing Adjustments and Costs. 

A. Purchaser shall pay the cost of all (i) documentary stamps, recordation taxes, 

transfer taxes and any other similar tax related to the conveyance of title to Property and (ii) title 

searches, title commitments, title policies, survey(s), investigations, tests and closing costs of the 

Title Company. 

B. If at the time of Closing the Property is affected by an assessment which is or may 

become payable in annual installments, and the first installment is then a lien, or has been paid, 

then for the purposes of this Agreement all the unpaid installments shall be payable by Purchaser 

when each installment as to such assessment is due and payable after the Closing.

C. Each of the following items are to be apportioned as of midnight the day before 

Closing: (a) real estate taxes on the basis of the fiscal period for which assessed; (b) special 

assessment liens in accordance with the preceding paragraph; (c) utilities; (d) water and sewer 

charges; and (e) any other charges customarily prorated in similar transactions. If Closing shall 

occur before a new tax rate is fixed, the apportionment of taxes shall be upon the basis of the old 

tax rate for the preceding period applied to the latest assessed valuation.

18. Use of Purchase Price to Pay Encumbrances. If there is any monetary encumbrance which 

is capable of being reduced to a sum certain affecting the sale which Seller is obligated to pay and 

discharge at Closing pursuant to this Agreement, Seller may, to the extent permitted by the Sale 

Order, use any portion of the balance of the Purchase Price to discharge it. As an alternative, Seller 

may, to the extent permitted by the Sale Order, deposit money with the Title Company in such 

amount as reasonably required by the Title Company to assure its discharge. Upon request made 

within a reasonable time before Closing, Purchaser agrees to provide separate certified checks to 

assist in clearing up these matters.

19. Personal Property. Purchaser accepts such personal property, identified in the third 

paragraph of the recitals herein, in its “as-is” condition, without representation as to quantity, 

quality, or any other matter.

20. Events of Default.

A. Purchaser shall be in default under this Agreement if Purchaser (1) fails to pay the 

balance of the Purchase Price on or before the Closing Date, (2) fails to pay, perform or observe 

any of Purchaser’s obligations hereunder, or (3) assigns this Agreement, or records any written 

instrument regarding this Agreement, without the consents set forth in Section 36 of this 

Agreement. 

B. If any payment or any other material covenant of this Agreement hereof is not 

made, tendered or performed by either Seller or Purchaser, as herein provided, then this 

Agreement, at the option of the party who is not in default, may be terminated by such party. 

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(i) In the event of such default by Seller, if Purchaser elects to treat this 

Agreement as terminated, then, as Purchaser’s sole remedy, the Deposit shall be returned 

to Purchaser and Seller shall be released from any and all liability hereunder. Purchaser 

expressly waives its right to seek damages in the event of Seller’s default hereunder. 

(ii) In the event of such default by Purchaser, if Seller elects to treat this 

Agreement as terminated, then all payments made hereunder shall be forfeited to and 

retained by Seller and Seller shall be entitled to the retention of the Deposit as liquidated 

damages and not a penalty, and Seller shall retain all rights to bring such other causes of 

action against Seller as are allowed by law as a result of the Purchaser’s default. 

C. Notwithstanding the occurrence of an event of default hereunder by Purchaser, the 

Seller, may, in its sole discretion, keep this Agreement in effect and proceed to Closing. 

D. If Purchaser breaches this Agreement and Seller institutes a judicial action to 

enforce its rights or obtain remedies hereunder, the Purchaser shall pay to the Seller the reasonable 

attorneys’ fees, court costs and expenses incurred by the Seller.

21. No Representation; Purchaser’s Duty to Review.

IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS 

NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND 

OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY 

INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS 

TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, 

TITLE, ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR 

ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, 

VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY 

WITH GOVERNMENTAL LAWS (INCLUDING, WITHOUT LIMITATION, 

ACCESSIBILITY FOR HANDICAPPED PERSONS), THE TRUTH, ACCURACY OR 

COMPLETENESS OF ANY PROPERTY DOCUMENTS OR ANY OTHER INFORMATION 

PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER 

OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND 

AGREES THAT UPON CLOSING SELLER SHALL SELL AND TRANSFER TO 

PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, 

WITH ALL FAULTS”, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE 

IN THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND 

SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED 

WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION 

PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING 

SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES 

DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY THE 

SELLER OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR 

PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY 

OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN 

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THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS 

CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF 

THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND 

ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO 

SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE 

OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY 

HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, 

AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION 

PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH 

RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND 

COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. THE 

PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING.

22. Broker’s Commission. Any commission or fee of any type due and payable to a broker on 

behalf of Purchaser as a result of this Agreement or related to the sale of the Property shall be paid 

solely by Purchaser. Seller shall have no obligation to fund or cause the funding of any 

commission or fee due to any broker acting on behalf of Purchaser. Purchaser indemnifies Seller 

in this regard including, without limitation, for any such fee and for all expenses incurred in respect 

of any litigation or claims brought seeking the payment of such fee. This paragraph shall survive 

Closing. 

23. Notices. Any notice pursuant to this Agreement shall be given in writing by (a) personal 

delivery, or (b) reputable overnight delivery service with proof of delivery, or (c) United States 

Mail, postage prepaid, registered or certified mail, return receipt requested, or (d) legible facsimile 

transmission sent to the intended addressee at the address set forth below, or to such other address 

or to the attention of such other person as the addressee shall have designated by written notice 

sent in accordance herewith, and shall be deemed to have been given either at the time of personal 

delivery, or, in the case of expedited delivery service or mail, as of the date of first attempted 

delivery at the address and in the manner provided herein, or, in the case of facsimile transmission, 

as of the date of the facsimile transmission provided that an original of such facsimile is also sent 

to the intended addressee by means described in clauses (a), (b) or (c) above. Unless changed in 

accordance with the preceding sentence, the addressees for notices given pursuant to this 

Agreement shall be as follows:

If to Seller: __________________________

Attn: _____________________

__________________________

__________________________

Phone: ____________________

Email: ____________________

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If to Purchaser: __________________________

Attn: _____________________

__________________________

__________________________

Phone: ____________________

Email: ____________________

24. Additional Provisions. 

A. This Agreement shall be governed and construed in accordance with the laws of the 

State of New York without regard to conflicts of laws principles. 

B. The parties agree that neither this contract nor any memorandum thereof shall be 

recorded or filed in any government office charged with the obligation to accept documents for 

recording or filing, and such office is instructed to refuse to accept same for recordation or filing.

25. Strict Compliance. Any failure by either party to insist upon strict performance by the 

other party of any of the provisions of this Agreement shall not be deemed a waiver of any of the 

provisions hereof, irrespective of the number of violations or breaches that may occur, and each 

party, notwithstanding any such failure, shall have the right thereafter to insist upon strict 

performance by the other of any and all of the provisions of this Agreement.

26. Waiver of Jury Trial. EXCEPT AS PROHIBITED BY LAW, THE PARTIES SHALL, 

AND THEY HEREBY DO, EXPRESSLY WAIVE TRIAL BY JURY IN ANY LITIGATION 

ARISING OUT OF, CONNECTED WITH, OR RELATING TO THIS AGREEMENT, OR THE 

RELATIONSHIP CREATED HEREBY. With respect to any matter for which a jury trial cannot 

be waived, the parties agree not to assert any such claim as a counterclaim in, nor move to 

consolidate such claim with, any action or proceeding in which a jury trial is waived. The parties 

submit to the exclusive jurisdiction and venue of the Bankruptcy Court with respect to any dispute, 

claim or issue arising out of this Agreement. 

27. Entire Agreement. All prior understandings and agreements between Seller and Purchaser 

are merged in this Agreement. It completely expresses their full agreement; neither party is relying 

upon any statements made by anyone else that are not set forth in this Agreement.

28. Singular Also Means Plural. Any singular word or term herein shall also be read as in the 

plural whenever the sense of this Agreement may require it.

29. Gender. A reference in this Agreement to any one gender, masculine, feminine or neuter, 

includes the other two, and the singular includes the plural, and vice versa, unless the context 

requires otherwise.

30. Certain References. The term “herein,” “hereof” or “hereunder” or similar terms used in 

this Agreement shall refer to this entire Agreement and not to the particular provision in which the 

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term is used. Unless otherwise stated, all references herein to paragraphs, subparagraphs or other 

provisions are references to paragraph, subparagraphs, or other provisions of this Agreement.

31. No Oral Changes. This Agreement cannot be changed or any provision waived orally. 

ANY CHANGES OR ADDITIONAL PROVISIONS OR WAIVERS MUST BE SET FORTH IN 

A RIDER ATTACHED HERETO OR IN A SEPARATE WRITTEN AGREEMENT SIGNED 

BY THE PARTIES.

32. Date of Performance. If any date for performance hereunder falls on a Saturday, Sunday 

or other day which is a federal holiday or holiday under the laws of the state where the Property is 

located, the date for such performance shall be the next succeeding business day.

33. Severability. Except as set forth herein, if any clause or provision of this Agreement is 

held to be invalid or unenforceable by any court of competent jurisdiction as against any person or 

under any circumstances, the remainder of this Agreement and the applicability of any such clause 

or provision to other persons or circumstances shall not be affected thereby; provided, however, 

the parties agree that the conditions for Bankruptcy Court approval and issuance of a Sale Order 

is a non-negotiable condition precedent to the validity and enforcement of this Agreement against 

the Trustee. Any other clauses or provisions of this Agreement, not found invalid and 

unenforceable, shall be and remain valid and enforceable. 

34. Counterparts. This Agreement may be executed in multiple counterparts all of which when 

taken together shall constitute an Agreement for the sale of real estate under the laws of the State 

of Indiana. It is binding upon and inures to the benefit of the parties hereto and their respective 

heirs, devisees, executors, administrators, successors and assigns, and may be canceled, modified 

or amended only by a written instrument executed by both the Seller and the Purchaser.

35. Facsimile Execution. For the purposes of executing this Agreement, a document signed 

and transmitted by facsimile machine or electronic (PDF) mail shall be treated as an original 

document. The signature of any party thereon shall be considered as an original signature, and the 

document transmitted shall be considered to have the same binding legal effect as an original 

signature on an original document. At the request of either party, any facsimile or electronic (PDF) 

mail document shall be re-executed by both parties in original form. No party hereto may raise 

the use of a facsimile machine or electronic (PDF) mail or the fact that any signature was 

transmitted through the use of a facsimile machine or electronic (PDF) mail as a defense to the 

enforcement of this Agreement or any amendment executed in compliance with this paragraph. 

This paragraph does not supersede the requirements of Section 23 hereof. 

36. Assignment. Purchaser shall not assign this Agreement without the prior written consent 

of the Seller, such consent to be given in Seller’s sole discretion. Any purported assignment by

Purchaser in violation of this Agreement shall be voidable at the option of the Seller. The refusal 

of any such person to consent to an assignment shall not entitle Purchaser to cancel this Agreement 

nor give rise to any claim for damages against the Seller. Any assignment by Purchaser, even if 

consented to by Seller, shall not act to limit, reduce or impact in any way any of Purchaser’s 

obligations to perform all of its obligations under this Agreement including, without limitation, its 

obligation to pay the Purchase Price.

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37. Construction of Agreement. This Agreement has been drafted through a cooperative effort 

of both Parties, and neither Party shall be considered the drafter of this Agreement so as to give 

rise to any presumption of convention regarding construction of this document. All terms of this 

Agreement were negotiated in good faith and at arm’s-length, and this Agreement was prepared 

and executed without fraud, duress, undue influence, or coercion of any kind exerted by any of the 

Parties upon the other. The execution and delivery of this Agreement is the free and voluntary act 

of the Parties.

[Signatures appear on following page]

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 IN WITNESS HEREOF, Purchaser and Seller agree that the date of this Agreement shall 

be the date Seller executes this Agreement.

PURCHASER:

By:

Printed: 

Title: 

SELLER:

[COMPANY]

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Exhibit A

Legal Description of Property

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Exhibit B

Permitted Exceptions

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Exhibit C

Bidding Procedures Order

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Exhibit A-2

Form Assumption and Assignment Agreement

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ASSUMPTION AND ASSIGNMENT AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Agreement”), dated as 

of _______, 2018, is by and between __________________ (“Assignor”) and 

___________________ (“Assignee”).

RECITALS

WHEREAS, Assignor, along with its affiliated debtors and debtors in possession, has filed 

a voluntary petition for relief pursuant to chapter 11 of Title 11 of the United States Code, 11 

U.S.C. §§ 101 et seq. (as amended, the “Bankruptcy Code”), in the United States Bankruptcy Court 

for the Eastern District of Virginia (the “Bankruptcy Court”), Case No. 17-34665; and

WHEREAS, Assignor has agreed to assign and Assignee has agreed to assume the real 

property lease(s) listed on the attached Schedule A (referred to as either the “Assigned Asset(s)” 

or the “Lease(s)”) with respect to the premises set forth on Schedule A (the “Premises”) pursuant 

to the terms and conditions of the Bidding Procedures for the Disposition of the Remaining Real 

Estate Assets of Toys Delaware subject to approval by the United States Bankruptcy Court for the 

Eastern District of Virginia in the chapter 11 cases of In re Toys “R” Us, Inc., Case No. 17-34665 

(KLP) (Bankr. E.D. Va. 2018).

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein 

contained, the parties hereto agree as follows:

AGREEMENT

1. Assignment and Assumption.

(a) Assignor hereby sells, transfers, conveys, assigns and sets over to Assignee, 

its successors and assigns, all of Assignor’s right, title, and interest in and to the Assigned Asset(s).

(b) Assignee hereby assumes and undertakes to pay, perform and discharge all 

of Assignor’s obligations and duties with respect to the Assigned Asset(s).

2. Payment of Purchase Price. Assignee shall, on the date hereof, deliver the purchase 

price for the Assigned Asset(s) in the amount of ________________ (the “Purchase Price”) in 

immediately available funds wired to the account specified by Assignor. If the assumption and 

assignment of the Assigned Asset(s) do(es) not occur by ________, 2018, Assignee will 

additionally reimburse Assignor for all amounts that came due, were required to be paid, and were 

in fact paid in connection with the Assigned Asset(s) on and after _________, 2018.

3. Assumption of Liabilities. In addition to assuming all remaining obligations that 

exist with respect to the Assigned Asset(s), including, but not limited to, accrued but unbilled 

adjustments for CAM, real estate taxes and insurance, Assignee shall assume and cure all 

outstanding liabilities with respect to the Assigned Asset(s).

4. No Further Liability of Assignor. From and after the date hereof, Assignor shall 

have no further obligations and duties with respect to the Assigned Asset(s).

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5. Further Assurances. At any time and from time to time after the date hereof, at the 

request of Assignee, and without further consideration, Assignor shall execute and deliver such 

other instruments of sale, transfer, conveyance, assignment, and confirmation or consents and take 

such other action as Assignee may reasonably request as necessary or desirable in order to more 

effectively transfer, convey, and assign to Assignee Assignor’s rights to the Assigned Asset(s).

6. “As Is Where Is” Transaction. Assignee hereby acknowledges and agrees that 

Assignor makes no representations or warranties whatsoever, express or implied, with respect to 

any matter relating to the Assigned Asset(s). Without limiting the foregoing, Assignor hereby 

disclaims any warranty (express or implied) of merchantability or fitness for any particular purpose 

as to any portion of the Assigned Asset(s). Assignee further acknowledges that the Assignee has 

conducted an independent inspection and investigation of the physical condition of the Assigned

Asset(s) and all such other matters relating to or affecting the Assigned Asset(s) as Assignee 

deemed necessary or appropriate and that in proceeding with its acquisition of the Assigned 

Asset(s), Assignee is doing so based upon such independent inspections and investigations. 

Accordingly, Assignee will accept the Assigned Asset(s) “AS IS” and “WHERE IS.”

7. Compliance With Law. Assignee hereby agrees to comply with all applicable laws. 

Assignee agrees to indemnify and hold Assignor harmless for any violation or alleged violation of 

this section.

8. Governing Law. This Agreement shall be governed by and construed in accordance 

with the laws of the State of New York without regard to principles of conflicts of law.

9. Jurisdiction. The Parties consent to the exclusive jurisdiction of the United States 

Bankruptcy Court for the Eastern District of Virginia with respect to all matters arising under or 

relating to this Agreement. The Parties hereby irrevocably waive any objection on the grounds of 

venue, forum non conveniens, or any similar grounds and irrevocably consent to service of process 

by mail or in any other manner permitted by applicable law. The Parties further hereby waive any 

right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this 

Agreement. 

10. No Reliance. Each Party represents and warrants that in entering into this 

Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of 

any attorney it has retained to represent it in this matter. In entering into this Agreement, no Party 

is relying on any representation or statement made by any other Party or any person representing 

such other Party.

11. Construction. This Agreement has been drafted through a cooperative effort of 

both Parties, and neither Party shall be considered the drafter of this Agreement so as to give rise 

to any presumption of convention regarding construction of this document. All terms of this 

Agreement were negotiated in good faith and at arm’s-length, and this Agreement was prepared 

and executed without fraud, duress, undue influence, or coercion of any kind exerted by any of the 

Parties upon the other. The execution and delivery of this Agreement is the free and voluntary act 

of the Parties.

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12. Execution in Counterparts. This Agreement may be executed in one or more 

counterparts, each of which shall be deemed an original, but all of which together shall constitute 

one and the same instrument. All signatures of the Parties to this Agreement may be transmitted 

by facsimile or by electronic mail, and such transmission will, for all purposes, be deemed to be 

the original signature of such Party whose signature it reproduces, and will be binding upon such 

Party.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date 

first above written.

[Signatures appear on following page]

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ASSIGNOR:

[COMPANY]

By

Name

Its

ASSIGNEE:

[ASSIGNEE]

By

Name

Its

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Schedule A

Description of Asset(s)

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Exhibit A-3

Form Lease Termination Agreement

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LEASE TERMINATION AGREEMENT

This Lease Termination Agreement (the “Agreement”) is made as of this ___ day of , 

2018 by and between ____________________ (“Landlord”) and ___________________ 

(“Tenant” or “Debtor”).

RECITALS

WHEREAS, Landlord and Tenant entered into a certain lease dated ________ (the 

“Lease”), covering certain premises located at _____________________________ (the 

“Premises”), on the terms and conditions set forth therein; 

WHEREAS, Tenant, along with its affiliated debtors and debtors in possession, has filed a 

voluntary petition for relief pursuant to chapter 11 of Title 11 of the United States Code, 11 U.S.C. 

§§ 101, et seq. (as amended, the “Bankruptcy Code”), in the United States Bankruptcy Court for 

the Eastern District of Virginia (the “Bankruptcy Court”); 

WHEREAS, Landlord has prepetition and postpetition sums due and owing from Tenant. 

The Parties desire to enter into this Agreement, for among things, Landlord to be restored to 

possession of the Premises as of the Termination Date, the parties release the other Landlord is 

able to dispose of any remaining equipment at the Premises in its sole and absolute discretion;

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

herein, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby 

covenant and agree as follows subject only to an order of the Bankruptcy Court approving this 

Agreement:

AGREEMENT

1. Recitals. The Recitals are incorporated herein as if set forth at length.

2. Lease Termination. The Lease is terminated effective _________ (the 

“Termination Date”). Tenant shall file a notice in the Bankruptcy Court rejecting the Lease 

effective upon the Termination Date.

3. Consideration. Landlord shall pay to Tenant $_____________.

4. Landlord Release of Tenant. For valuable consideration, and the mutual covenants 

and agreements contained herein, Landlord does hereby fully, forever and irrevocably release, 

discharge and acquit Tenant, and its respective past and present affiliates, and the respective past 

and present officers, directors, shareholders, agents, and employees of each and all of the foregoing 

entities, and its and their respective successors, heirs, and assigns, and any other person or entity 

now, previously, or hereafter affiliated with any or all of the foregoing entities, of and from any 

and all rights, claims, demands, obligations liabilities, indebtedness, breaches of contract, breaches 

of duty or any relationship, acts, omissions, misfeasance, malfeasance, cause or causes of action, 

debts, sums of money, accounts, compensations, contracts, controversies, promises, damages, 

costs, losses and expenses of every type, kind, nature, description or character, and irrespective of 

how, why, or by reason of what facts, whether heretofore or now existing, or that could, might, or 

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may be claimed to exist, of whatever kind or name, whether known or unknown, suspected or 

unsuspected, liquidated or unliquidated, claimed or unclaimed, whether based on contract, tort, 

breach of any duty, or other legal or equitable theory of recovery, each as though fully set forth 

herein at length, including, without limitation, any and all claims evidenced by the Lease.

5. Tenant Release of Landlord. For valuable consideration, and the mutual covenants 

and agreements contained herein, Tenant does hereby fully, forever and irrevocably release, 

discharge and acquit Landlord, and its respective past and present affiliates, and the respective past 

and present officers, directors, shareholders, agents, property managers, and employees of each 

and all of the foregoing entities, and its and their respective successors, heirs, and assigns, and any 

other person or entity now, previously, or hereafter affiliated with any or all of the foregoing 

entities, of and from any and all rights, claims, demands, obligations liabilities, indebtedness, 

breaches of contract, breaches of duty or any relationship, acts, omissions, misfeasance, 

malfeasance, cause or causes of action, debts, sums of money, accounts, compensations, contracts, 

controversies, promises, damages, costs, losses and expenses of every type, kind, nature, 

description or character, and irrespective of how, why, or by reason of what facts, whether 

heretofore or now existing, or that could, might, or may be claimed to exist, of whatever kind or 

name, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, claimed 

or unclaimed, whether based on contract, tort, breach of any duty, or other legal or equitable theory 

of recovery, each as though fully set forth herein at length, including, without limitation, any and 

all claims evidenced by the Lease.

6. As further consideration for this Release, the parties hereto, for themselves and their 

successors and assigns, hereby agree, represent and warrant that the matters released herein are 

not limited to matters that are known or disclosed, and the parties hereby waive any and all rights 

and benefits that they now have, or in the future may have, conferred upon it by virtue of the 

provisions of Section 1542 of the Civil Code of the State of California (or any other statute or 

common law principles of similar effect), which Section provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE 

CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER 

FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN 

BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER 

SETTLEMENT WITH THE DEBTOR.

7. In this connection, the parties hereby agree, represent and warrant that they realize 

and acknowledge that factual matters now unknown to them may have given or may hereafter give 

rise to causes of action, claims, demands, debts, controversies, damages, costs, losses, and 

expenses that are presently unknown, unanticipated, and unsuspected, and the parties further agree, 

represent and warrant that this Release has been negotiated and agreed upon in light of that 

realization and that, except as expressly limited above, it nevertheless hereby intends to release, 

discharge, and acquit the Released Parties from any such unknown causes of action, claims, 

demands, debts, controversies, damages, costs, losses, and expenses.

8. Conditions Precedent. As a condition precedent to the effectiveness of this 

Agreement, each and all of the following shall have occurred no later than the Termination Date:

(a) Tenant has delivered possession of the Premises to Landlord;

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(b) Tenant has delivered to Landlord the keys and access codes to the Premises;

(c) An order has been entered approving the entirety of this Agreement.

9. Furniture, Fixtures and Equipment (FF&E). Any FF&E remaining at the Premises 

after the Termination Date is deemed abandoned and the Landlord and their managing agents are 

free to dispose of the FF&E in their sole and absolute discretion without liability to the Debtor or 

any entity.

10. Authority to Settle. Each of the parties to this Agreement respectively represents 

and warrants that each such party has the absolute and unfettered power, right and authority to 

enter into this Agreement and settle, compromise and release fully and completely all matters and 

claims contemplated to be resolved hereby. Each of the parties to this Agreement respectively 

represents and warrants that each such party owns and controls each of the claims, causes of action, 

or other matters that are the subject matter of this Agreement and that it has not assigned or 

transferred to any other person any of such claims, causes of action, or other matters.

11. Entire Agreement. This Agreement, the exhibits hereto and the other items to be 

delivered as a condition precedent to the effectiveness of this Agreement, contains the entire 

agreement and understanding concerning the subject matter of the Agreement supersedes and 

replaces all prior negotiations and proposed settlement agreements, written or oral. Each of the 

parties to this Agreement respectively represents and warrants that no other party to this 

Agreement, nor any agent or attorney of any such party, has made any promise, representation or 

warranty, express or implied, not contained in this Agreement or the exhibits hereto to induce any 

party to execute this Agreement. Each of the parties to this Agreement further acknowledges that 

such party is not executing this Agreement in reliance on any promise, representation or warranty 

not contained in this Agreement or the exhibits hereto.

12. Advice of Counsel. Each of the parties to this Agreement respectively represents 

and warrants that each such party has (a) been adequately represented, or has had the opportunity 

to be represented, by independent legal counsel of its own choice, throughout all of the negotiations 

that preceded the execution of this Agreement, (b) executed this Agreement with the consent and 

upon the competent advice of such counsel, or that it has had the opportunity to seek such consent 

and advice, (c) read this Agreement, and understands and assents to all the terms and conditions 

contained in this Agreement without any reservations; and (d) had, or has had the opportunity to 

have had, the same explained to it by its own counsel. In entering into this Agreement, no Party is 

relying on any representation or statement made by any other Party or any person representing 

such other Party.

13. Attorneys’ Fees. Each party to this Agreement agrees that in the event a dispute 

arises as to the validity, scope, applicability, or enforceability of this Agreement, the prevailing 

party shall be entitled to recover its costs and attorneys’ fees.

14. Counterparts. This Agreement may be executed in one or more counterparts, each 

of which shall be an original, and all of which shall constitute one and the same document. Further, 

each of the parties to this Agreement agrees that scanned signatures of each party hereto shall be 

deemed original signatures and shall be binding on each such party whose signature is by scan to 

the same extent as if it were its original signature.

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15. Governing Law. This Agreement shall be governed by and construed under the 

laws of the State of New York, without regard to conflicts of laws principles that would require 

the application of the law of another jurisdiction.

16. Jurisdiction. The Parties consent to the exclusive jurisdiction of the United States 

Bankruptcy Court for the Eastern District of Virginia with respect to all matters arising under or 

relating to this Agreement. The Parties hereby irrevocably waive any objection on the grounds of 

venue, forum non conveniens, or any similar grounds and irrevocably consent to service of process 

by mail or in any other manner permitted by applicable law. The Parties further hereby waive any 

right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this 

Agreement. 

17. Miscellaneous.

(a) The headings of the sections of this Agreement are for convenience of reference 

only and shall not affect the meaning or interpretation of this Agreement. This Agreement and its 

terms, provisions, covenants and conditions may not be amended, changed, altered, modified or 

waived except by an express instrument in writing signed by each and all of the parties hereto.

(b) This Agreement and each of its provisions are binding upon and shall inure to the 

benefit of the Tenant’s successors and assigns, including, without limitation, a trustee, if any, 

subsequently appointed under Chapter 7 or 11 of the Bankruptcy Code.

(c) Each of the parties to this Agreement shall take all necessary steps, cooperate, and 

use reasonable best efforts to obtain and achieve the objectives and fulfill the obligations of this 

Agreement. Each of the parties hereto shall cooperate with each other and shall execute and deliver 

any and all additional notices, papers, documents, and other assurances, and shall do any and all 

acts and things reasonably necessary in connection with the performance of their obligations 

hereunder and to carry out the intent of this Agreement.

(d) Each of the parties to this Agreement shall pay all of its own legal fees, costs, and 

any other expenses incurred or to be incurred in connection with the consummation of this 

Agreement.

(e) The determination of the terms of, and the drafting of, this Agreement has been by 

mutual agreement after negotiation, with consideration by and participation of all parties hereto 

and their counsel. Because this Agreement was drafted with the participation of all parties hereto 

and their counsel, the presumption that ambiguities shall be construed against the drafter does not 

apply. Each of the parties to this Agreement respectively represents and warrants that each such 

party was represented by competent and effective counsel throughout the course of settlement 

negotiations and in the drafting and execution of this Agreement, and there was no disparity in 

bargaining power among the parties to this Agreement.

[Signatures appear on following page]

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IN WITNESS HEREOF, the parties have duly executed this Agreement as of the

date and year first written above.

[LANDLORD]

By:___________________________

Print Name:____________________

Its:___________________________

[TENANT]

By:___________________________

Print Name:____________________

Its:___________________________

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Exhibit B

Bidder Registration Form

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OFFER AND BIDDER REGISTRATION FORM

Bidder, _______________________________________________________________, hereby: 

 Offers to purchase the following Real Estate, Real Estate & Leasehold Interest, and/or 

Lease for the bid set forth below, pursuant to this Offer & Qualified Bidder Form and the 

terms and conditions of the accompanying purchase agreement (the “Bidder PA”), and 

 Seeks to become a Qualified Bidder pursuant to the terms and conditions of the Bidding 

Procedures for the Disposition of the Remaining Real Estate Assets of Toys Delaware 

subject to approval by the United States Bankruptcy Court for the Eastern District of 

Virginia in the chapter 11 cases of In re Toys “R” Us, Inc., Case No. 17-34665 (KLP) 

(Bankr. E.D. Va. 2018) (the “Bidding Procedures”). 

Bidder’s offer is for the following Properties at the following bids:

REAL ESTATE, REAL ESTATE & 

LEASEHOLD INTEREST &/OR LEASE

BID/PURCHASE PRICE

1.

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Aggregate Purchase Price:

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Bidder hereby warrants and represents as follows: 

(a) Bidder has received, reviewed, understands and agrees to abide by the terms and conditions 

of the Bidding Procedures, the terms and conditions of which are incorporated herein by 

reference. 

(b) Bidder has received, reviewed and understands the terms and conditions of the Bidder PA 

the terms and conditions of which are incorporated herein by reference. 

(c) To the extent that the words and phrases which are capitalized in this Offer & Qualified 

Bidder Form have been defined in the Bidding Procedures or in the Bidder PA, those 

definitions are incorporated herein by reference.

(d) Each Bid made at the Auction shall constitute a binding, irrevocable “Bid” pursuant to the 

Bidding Procedures.

(e) Each Bid is and shall be a good faith, bona fide, irrevocable offer to purchase the Real 

Estate, the Real Estate & Leasehold Interests, and/or the Leases on an as-is, where-is basis, 

with no contingencies.

(f) Bidder (a) has relied solely upon its own independent review, investigation, and/or 

inspection of any documents and/or the Real Estate, the Real Estate & Leasehold Interests, 

and/or the Leases in making its offer; (b) did not rely upon any written or oral statements, 

representations, promises, warranties or guaranties whatsoever, whether express or implied 

(by operation of law or otherwise), regarding the Real Estate, the Real Estate & Leasehold 

Interests, and/or the Leases or the completeness of any information provided in connection 

therewith or the Auction other than as provided in the Bidder PA; and (c) is not entitled to 

any break-up fee, termination fee, expense reimbursement, or similar type of payment, (d) 

and by submitting a Bidder PA, waives, and shall be deemed to waive, the right to pursue 

a substantial contribution claim under § 503 of title 11 of the United States Code (the 

“Bankruptcy Code”) related in any way to the submission of its bid, the Bidding 

Procedures, or any earnest money Deposit.

(g) Bidder is either not represented by a broker seeking a commission, or if Bidder is 

represented by a broker, Bidder exclusively authorizes broker to submit such offer on 

behalf of Bidder and that any commission or fee of any type due and payable to such broker 

as a result of a Sale shall be paid solely by Bidder and Bidder shall indemnify the Debtors 

and their agents in this regard, and (ii) Bidder acknowledges that it will comply with the 

Bidding Procedures.

(h) Bidder acknowledges that, pursuant to, inter alia, 18 U.S.C. § 371, it is a federal crime to 

engage in collusive bidding or to chill the bidding. 

(i) Bidder confirms that it has not engaged, and will not engage, in any collusion with respect 

to the bidding or the Sale.

(j) Identification of how the Bidder will pay the purchase price at Closing.

[Signatures appear on following page]

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AGREED & ACCEPTED this ____ day of ___________, 2018

Company: __________________

By:________________________

Name:

Title:

BIDDER I.D.

Bidder’s Company: _____________________________________________________________

Bidder’s Address:

Bidder’s Contact:

Bidder’s Phone & Facsimile Numbers:

Bidder’s Email Address: _________________________________________________________

Bidder’s Tax ID Number:

ATTORNEY OR AUTHORIZED AGENT I.D.

Attorney or Agent Name: 

Law Firm or Company: __________________________________________________________

Address:

Phone & Facsimile Numbers:

Email Address: ________________________________________________________________

BIDDER WIRING INFORMATION FOR DEPOSIT RETURN

Bidder’s Bank Name:

Account Name:

Account Number:

ABA Number:

Bidder’s Address:

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Exhibit 2

Auction and Hearing Notice

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Edward O. Sassower, P.C. James H.M. Sprayregen, P.C.

Joshua A. Sussberg, P.C. (admitted pro hac vice) Anup Sathy, P.C.

KIRKLAND & ELLIS LLP Chad J. Husnick, P.C. (admitted pro hac vice)

KIRKLAND & ELLIS INTERNATIONAL LLP Emily E. Geier (admitted pro hac vice)

601 Lexington Avenue KIRKLAND & ELLIS LLP

New York, New York 10022 KIRKLAND & ELLIS INTERNATIONAL LLP

Telephone: (212) 446-4800 300 North LaSalle

Facsimile: (212) 446-4900 Chicago, Illinois 60654

Telephone: (312) 862-2000

-and- Facsimile: (312) 862-2200

Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

TOYS “R” US, INC., et al.,

1

) Case No. 17-34665 (KLP)

)

Debtors. ) (Jointly Administered)

)

NOTICE OF BID DEADLINE AND POTENTIAL SALE HEARING

______________________________________________________________________________

On [•], 2018 the United States Bankruptcy Court for the Eastern District of Virginia 

(the “Court”) entered the Order (I) Establishing Bidding Procedures for the Remaining Real Estate 

Assets of Toys Delaware and (II) Granting Related Relief (the “Bidding Procedures Order”),2by 

which the Court approved procedures setting forth the process by which the Debtors are authorized 

 

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting 

Related Relief [Docket No. 78]. The location of the Debtors’ service address is One Geoffrey Way, Wayne, 

New Jersey 07470.

2

All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the 

Bidding Procedures Order or the Debtors’ Motion for Entry of an Order (I) Establishing Bidding Procedures 

for the Remaining Real Estate Assets of Toys Delaware and (II) Granting Related Relief [Docket No. [•]].

Case 17-34665-KLP Doc 2787 Filed 04/19/18 Entered 04/19/18 18:26:27 Desc Main

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2

to conduct an auction (the “Auction”) for the sale of certain real property and commercial leases 

(collectively, the “Remaining Real Estate Assets”).

PLEASE TAKE NOTICE that the Debtors are soliciting offers for the sale, liquidation, 

or other disposition of certain of the Debtors’ Remaining Real Estate Assets consistent with the 

Bidding Procedures approved by the Court by entry of an order on [•], 2018 [Docket No.[ •]] (the 

“Bidding Procedures Order”). All interested bidders should carefully read the Bidding 

Procedures and Bidding Procedures Order. To the extent that there are any inconsistencies 

between this notice and the Bidding Procedures or Bidding Procedures Order, the Bidding 

Procedures or Bidding Procedures Order, as applicable, shall govern in all respects.

PLEASE TAKE FURTHER NOTICE that, if the Debtors receive qualified competing 

bids within the requirements and time frame specified by the Bidding Procedures, the Debtors will 

conduct an Auction of certain of the Debtors’ Remaining Real Estate Assets on or about [•] at the 

offices of Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022 (or at any other 

location as the Debtors may hereafter designate on proper notice).

PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the Sale(s) 

at the Sale Hearing scheduled to commence on or before [•], 2018 (the “Sale Hearing”) before the 

Honorable Judge Keith L. Phillips, at the Court, 701 East Broad Street, 5th Floor, Courtroom 

No. 5100, Richmond, Virginia 23219.

PLEASE TAKE FURTHER NOTICE that objections to approval of the proposed Sale, 

the proposed assumption and assignment, and/or to the Successful Bidder’s proposed form of 

adequate assurance of future performance must file a written objection (each, a “Sale Objection”) 

so that such objection is filed with the Court so as to be actually received by [•] and serve such 

Objection on: (a) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, 

Attn: Joshua A. Sussberg, P.C. Kirkland & Ellis LLP, 300 North LaSalle Street, Chicago, Illinois 

60654, Attn: Chad Husnick, and Emily Geier, and Kutak Rock LLP, 901 East Byrd Street, Suite 

1000, Richmond, Virginia 23218, Attn: Michael A. Condyles, Peter J. Barrett, and Jeremy S. 

Williams, co-counsel to the Debtors; (b) the Office of the United States Trustee for the Eastern 

District of Virginia, Attn: Robert B. Van Arsdale and Lynn A. Kohen; (c) Kramer Levin Naftalis 

& Frankel LLP, 1177 Avenue of the Americas, New York, New York 10036, Attn: Adam C. 

Rogoff, Esq. and Rachael Ringer, Esq., counsel to the Official Committee of Unsecured Creditors; 

(d) Davis, Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 11017, Attn: 

Marshall Huebner and Kenneth Steinberg, counsel to the DIP ABL Agent; (e) if the applicable 

Debtor Lease counterparty is an obligor on the Taj Notes, then to (1) counsel to the Taj DIP Notes 

Trustee; (2) counsel to the Taj Notes Trustee; and (3) Paul, Weiss, Rifkind, Wharton & Garrison, 

LLP, 1285 Avenue of the Americas, New York, New York 10019-6064, Attn: Brian S. Hermann, 

Samuel E. Lovett, and Kellie A. Cairns, counsel to the Ad Hoc Group of Taj Noteholders; and (f) 

Wachtell, Lipton, Rosen, and Katz, 51 West 52nd Street, New York, New York 10019, Attn: 

Joshua A. Feltman, counsel to the DIP Delaware Term Loan Agent.

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3

CONSEQUENCES OF FAILING TO TIMELY MAKE AN OBJECTION

ANY PARTY OR ENTITY WHO FAILS TO TIMELY MAKE AN OBJECTION TO 

THE SALE ON OR BEFORE THE TRANSACTION OBJECTION DEADLINE IN 

ACCORDANCE WITH THE BIDDING PROCEDURES ORDER SHALL BE FOREVER 

BARRED FROM ASSERTING ANY OBJECTION TO THE SALE, INCLUDING WITH 

RESPECT TO THE DISPOSITION OF THE DEBTORS’ ASSETS FREE AND CLEAR OF 

ALL LIENS, CLAIMS, ENCUMBRANCES, AND OTHER INTERESTS, EXCEPT AS SET 

FORTH IN SUCH OTHER AGREEMENT WITH THE SUCCESSFUL BIDDER.

PLEASE TAKE FURTHER NOTICE that copies of the Sale Procedures Motion, 

Bidding Procedures, and the Bidding Procedures Order, as well as all related exhibits, including 

the form purchase agreement, are available: (a) upon request to Prime Clerk LLC (the notice and 

claims agent retained in these chapter 11 cases) by calling (844) 794-3476 (toll free) or, for 

international callers, (917) 962-8499; (b) by visiting the website maintained in 

these chapter 11 cases at http://www.cases.primeclerk.com/toysrus; or (c) for a fee via PACER 

by visiting http://www.vaeb.uscourts.gov.

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Richmond, Virginia

Dated: 

/s/ Jeremy S. Williams

KUTAK ROCK LLP KIRKLAND & ELLIS LLP

Michael A. Condyles (VA 27807) KIRKLAND & ELLIS INTERNATIONAL LLP

Peter J. Barrett (VA 46179) Edward O. Sassower, P.C.

Jeremy S. Williams (VA 77469) Joshua A. Sussberg, P.C. (admitted pro hac vice)

901 East Byrd Street, Suite 1000 601 Lexington Avenue

Richmond, Virginia 23219-4071 New York, New York 10022

Telephone: (804) 644-1700 Telephone: (212) 446-4800

Facsimile: (804) 783-6192 Facsimile: (212) 446-4900

Email: Michael.Condyles@KutakRock.com Email: edward.sassower@kirkland.com

Peter.Barrett@KutakRock.com joshua.sussberg@kirkland.com

Jeremy.Williams@KutakRock.com

-andCo-Counsel to the Debtors

and Debtors in Possession James H.M. Sprayregen, P.C.

Anup Sathy, P.C. 

Chad J. Husnick, P.C. (admitted pro hac vice)

Emily E. Geier (admitted pro hac vice)

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Email: james.sprayregen@kirkland.com

 anup.sathy@kirkland.com

 chad.husnick@kirkland.com

emily.geier@kirkland.com

Co-Counsel to the Debtors

and Debtors in Possession

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Exhibit 3

Assumption and Assignment Notice

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 Document Page 109 of 129
Edward O. Sassower, P.C. James H.M. Sprayregen, P.C.

Joshua A. Sussberg, P.C. (admitted pro hac vice) Anup Sathy, P.C.

KIRKLAND & ELLIS LLP Chad J. Husnick, P.C. (admitted pro hac vice)

KIRKLAND & ELLIS INTERNATIONAL LLP Emily E. Geier (admitted pro hac vice)

601 Lexington Avenue KIRKLAND & ELLIS LLP

New York, New York 10022 KIRKLAND & ELLIS INTERNATIONAL LLP

Telephone: (212) 446-4800 300 North LaSalle

Facsimile: (212) 446-4900 Chicago, Illinois 60654

Telephone: (312) 862-2000

-and- Facsimile: (312) 862-2200

Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

TOYS “R” US, INC., et al.,

1

) Case No. 17-34665 (KLP)

)

Debtors. ) (Jointly Administered)

)

NOTICE OF ASSUMPTION OF CERTAIN UNEXPIRED LEASES

PLEASE TAKE NOTICE that on [•], 2018 the United States Bankruptcy Court for the 

District of Virginia (the “Court”) entered the Order (I) Establishing Bidding Procedures for the 

Remaining Real Estate Assets of Toys Delaware and (II) Granting Related Relief (the “Bidding 

Procedures Order”),2by which the Court approved expedited procedures for the assumption and 

 

1

The in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, 

are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting Related Relief

[Docket 78]. The location of the Debtors’ service address is One Geoffrey Way, Wayne, New Jersey 07470.

2

All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Bidding 

Procedures Order or the Debtors’ Motion for Entry of an Order (I) Establishing Bidding Procedures for the 

Remaining Real Estate Assets of Toys Delaware and (II) Granting Related Relief.

Case 17-34665-KLP Doc 2787 Filed 04/19/18 Entered 04/19/18 18:26:27 Desc Main

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2

assignment of unexpired leases and granting related relief, which order is attached hereto as 

Exhibit A.

PLEASE TAKE FURTHER NOTICE that, pursuant to the Bidding Procedures Order 

and by this written notice (this “Assumption and Assignment Notice”), the Debtors hereby notify 

you that they have determined, in the exercise of their business judgment, that each unexpired 

lease set forth on Exhibit B attached hereto is hereby assumed and assigned effective as of the 

date (the “Assumption Date”) set forth in Exhibit B or such other date as the Debtors and the 

counterparties to such unexpired leases agree.

PLEASE TAKE FURTHER NOTICE that the Debtors believe that the party to which 

each applicable unexpired lease will be assigned has the financial wherewithal to meet all future 

obligations under such unexpired lease and the Debtors will, at the request of the applicable lease 

counterparty, use commercially reasonable efforts to provide evidence thereof to such applicable 

lease counterparty (and their counsel, if known) thereby demonstrating that the assignee of the 

lease has the ability to comply with the requirements of adequate assurance of future performance.

PLEASE TAKE FURTHER NOTICE that parties objecting to the proposed assumption 

and assignment and/or to the Successful Bidder’s proposed form of adequate assurance of future 

performance must file a written objection (each, an “Assumption Objection”) so that such 

objection is filed with the Court so as to be actually received by [•] and serve such Assumption 

Objection on: (a) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, 

Attn: Joshua A. Sussberg, P.C., and Kirkland & Ellis LLP, 300 North LaSalle Street, Chicago, 

Illinois 60654, Attn: Chad Husnick, P.C. and Emily Geier, and Kutak Rock LLP, 901 East Byrd 

Street, Suite 1000, Richmond, Virginia 23218, Attn: Michael A. Condyles, Peter J. Barrett, and 

Jeremy S. Williams, co-counsel to the Debtors; (b) the Office of the United States Trustee for the 

Eastern District of Virginia, Attn: Robert B. Van Arsdale and Lynn A. Kohen; (c) Kramer Levin 

Naftalis & Frankel LLP, 1177 Avenue of the Americas, New York, New York 10036, Attn: Adam 

C. Rogoff, Esq. and Rachael Ringer, Esq., counsel to the Official Committee of Unsecured 

Creditors; (d) Davis, Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 11017, 

Attn: Marshall Huebner and Kenneth Steinberg, counsel to the DIP ABL Agent; (e) if the 

applicable Debtor Contract counterparty is an obligor on the Taj Notes, then to (1) counsel to the 

Taj DIP Notes Trustee; (2) counsel to the Taj Notes Trustee; and (3) Paul, Weiss, Rifkind, Wharton

& Garrison, LLP, 1285 Avenue of the Americas, New York, New York 10019-6064, Attn: Brian 

S. Hermann, Samuel E. Lovett, and Kellie A. Cairns, counsel to the Ad Hoc Group of Taj 

Noteholders; and (f) Wachtell, Lipton, Rosen, and Katz, 51 West 52nd Street, New York, New 

York 10019, Attn: Joshua A. Feltman, counsel to the DIP Delaware Term Loan Agent.

PLEASE TAKE FURTHER NOTICE that, absent an Assumption Objection being 

timely filed, the assumption of each unexpired lease shall become effective on the Assumption 

Date set forth in Exhibit B, or such other date as the Debtors and the counterparty or counterparties 

to such unexpired lease agree.3

 

3

An objection to the assumption of any particular unexpired lease listed in this Assumption and Assignment Notice 

shall not constitute an objection to the assumption of any other contract listed in this Assumption and Assignment 

Notice. Any objection to the assumption of any particular unexpired lease listed in this Assumption and 

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 Document Page 111 of 129
3

PLEASE TAKE FURTHER NOTICE that, if a Sale Objection is timely filed and not 

withdrawn or resolved, such objection will be heard at the Sale Hearing or such other date and 

time as agreed to by the Debtors and the objecting party or ordered by the Court. If such Sale 

Objection is overruled or withdrawn, such unexpired lease shall be assumed as of the Assumption 

Date set forth in Exhibit B or such other date as the Debtors and the counterparty or counterparties 

to such unexpired lease agree.

[Remainder of page intentionally left blank]

 

Assignment Notice must state with specificity the unexpired lease(s) to which it is directed. For each particular 

unexpired lease whose assumption is not timely or properly objected to, such assumption will be effective in 

accordance with this Assumption and Assignment Notice and the Bidding Procedures Order.

Case 17-34665-KLP Doc 2787 Filed 04/19/18 Entered 04/19/18 18:26:27 Desc Main

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Richmond, Virginia

Dated: 

/s/ Jeremy S. Williams

KUTAK ROCK LLP KIRKLAND & ELLIS LLP

Michael A. Condyles (VA 27807) KIRKLAND & ELLIS INTERNATIONAL LLP

Peter J. Barrett (VA 46179) Edward O. Sassower, P.C.

Jeremy S. Williams (VA 77469) Joshua A. Sussberg, P.C. (admitted pro hac vice)

901 East Byrd Street, Suite 1000 601 Lexington Avenue

Richmond, Virginia 23219-4071 New York, New York 10022

Telephone: (804) 644-1700 Telephone: (212) 446-4800

Facsimile: (804) 783-6192 Facsimile: (212) 446-4900

Email: Michael.Condyles@KutakRock.com Email: edward.sassower@kirkland.com

Peter.Barrett@KutakRock.com joshua.sussberg@kirkland.com

Jeremy.Williams@KutakRock.com

-andCo-Counsel to the Debtors

and Debtors in Possession James H.M. Sprayregen, P.C.

Anup Sathy, P.C. 

Chad J. Husnick, P.C. (admitted pro hac vice)

Emily E. Geier (admitted pro hac vice)

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Email: james.sprayregen@kirkland.com

 anup.sathy@kirkland.com

 chad.husnick@kirkland.com

emily.geier@kirkland.com

Co-Counsel to the Debtors

and Debtors in Possession

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Exhibit A

Bidding Procedures Order

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Exhibit B

Assumed Unexpired Leases

Unexpired 

Lease1

Lease 

Counterparty Assignee Cure Amount

Assumption 

Date

 

1 The inclusion of an unexpired lease on this list does not constitute an admission as to the existence or validity of 

any claims held by the counterparty or counterparties to such unexpired lease.

Case 17-34665-KLP Doc 2787 Filed 04/19/18 Entered 04/19/18 18:26:27 Desc Main

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Exhibit 4

Notice of Successful and Backup Bidders

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Edward O. Sassower, P.C. James H.M. Sprayregen, P.C.

Joshua A. Sussberg, P.C. (admitted pro hac vice) Anup Sathy, P.C.

KIRKLAND & ELLIS LLP Chad J. Husnick, P.C. (admitted pro hac vice)

KIRKLAND & ELLIS INTERNATIONAL LLP Emily E. Geier (admitted pro hac vice)

601 Lexington Avenue KIRKLAND & ELLIS LLP

New York, New York 10022 KIRKLAND & ELLIS INTERNATIONAL LLP

Telephone: (212) 446-4800 300 North LaSalle

Facsimile: (212) 446-4900 Chicago, Illinois 60654

Telephone: (312) 862-2000

-and- Facsimile: (312) 862-2200

Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

TOYS “R” US, INC., et al.,

1

) Case No. 17-34665 (KLP)

)

Debtors. ) (Jointly Administered)

)

NOTICE OF SUCCESSFUL AND BACKUP BIDDER WITH RESPECT TO 

THE AUCTION OF CERTAIN OF THE DEBTORS’ REAL ESTATE ASSETS

______________________________________________________________________________

On [•], 2018 the United States Bankruptcy Court for the Eastern District of Virginia 

(the “Court”) entered the Order (I) Establishing Bidding Procedures for the Remaining Real Estate 

Assets of Toys Delaware and (II) Granting Related Relief (the “Bidding Procedures Order”),2

attached hereto as Exhibit A, by which the Court approved procedures setting forth the process by 

 

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, are set forth in the Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting 

Related Relief [Docket No. 78]. The location of the Debtors’ service address is One Geoffrey Way, Wayne, 

New Jersey 07470.

2

All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Bidding 

Procedures Order or the Debtors’ Motion for Entry of an Order (I) Establishing Bidding Procedures for the 

Remaining Real Estate Assets of Toys Delaware and (II) Granting Related Relief [Docket No. [•]].

Case 17-34665-KLP Doc 2787 Filed 04/19/18 Entered 04/19/18 18:26:27 Desc Main

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which the Debtors are authorized to conduct an auction (the “Auction”) for the sale of certain real 

property and commercial leases (collectively, the “Real Estate Assets”).

PLEASE TAKE FURTHER NOTICE that, on [•], pursuant to the Bidding Procedures 

Order, the Debtors conducted the Auction with respect to certain of the Real Estate Assets at the 

offices of Kirkland & Ellis, LLP, located at 601 Lexington Avenue, New York, New York, 10022.

PLEASE TAKE FURTHER NOTICE that, at the conclusion of the Auction, the Debtors, 

in consultation with their professionals, selected the following Successful Bidder and Backup 

Bidder with respect to each of the Remaining Real Estate Assets listed on Exhibit B attached 

hereto:

Real Estate 

Asset(s)

Successful 

Bidder

Backup Bidder Proposed 

Expense 

Reimbursement 

and/or Breakup 

Fee

Key Terms of 

Proposed Sale

PLEASE TAKE FURTHER NOTICE that the Sale Hearing to consider approval of the 

sale, liquidation, or other disposition of the Remaining Real Estate Assets to the Successful 

Bidders at the Auction, free and clear of all liens, claims, interests, and encumbrances in 

accordance with Bankruptcy Code section 363(f), will be held before the Honorable Judge Keith 

L. Phillips, at the Court, 701 East Broad Street, 5th Floor, Courtroom No. 5100, Richmond, 

Virginia 23219, on [•], 2018.

PLEASE TAKE FURTHER NOTICE, that at the Sale Hearing, the Debtors will seek 

the Court’s approval of the Successful Bid. Unless the Court orders otherwise or as agreed to by 

the applicable parties, the Sale Hearing shall be an evidentiary hearing on matters relating to the 

Sale and there will be no further bidding at the Sale Hearing. In the event that the Successful 

Bidder cannot or refuses to consummate the Sale following entry of a Sale Order because of the 

breach or failure on the part of the Successful Bidder, the Debtors shall promptly file a 

supplemental notice on or before the Sale Closing Deadline, seeking to approve the sale to the 

Backup Bidder, if applicable, on expedited notice and a hearing.

PLEASE TAKE FURTHER NOTICE that this Notice of Successful Bidder and Backup 

Bidder is subject to the terms and conditions of the Sale Procedures Motion and the Bidding 

Procedures Order, with such Bidding Procedures Order controlling in the event of any conflict, 

and the Debtors encourage parties in interest to review such documents in their entirety. Parties

interested in receiving more information regarding the sale or other disposition of the Remaining 

Real Estate Assets may make a written request to: Prime Clerk LLC (the notice and claims agent 

retained in these chapter 11 cases) by calling (844) 794-3476 (toll free) or, for international callers, 

(917) 962-8499.

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PLEASE TAKE FURTHER NOTICE that copies of the Sale Procedures Motion, the 

Bidding Procedures Order, this Notice, and any other related documents are available: (a) upon 

request to Prime Clerk LLC by calling (844) 794-3476 (toll free) or, for international callers, (917) 

962-8499; (b) by visiting the website maintained in these chapter 11 cases at 

http://www.cases.primeclerk.com/toysrus; or (c) for a fee via PACER by visiting 

http://www.vaeb.uscourts.gov.

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Richmond, Virginia

Dated: 

/s/ Jeremy S. Williams

KUTAK ROCK LLP KIRKLAND & ELLIS LLP

Michael A. Condyles (VA 27807) KIRKLAND & ELLIS INTERNATIONAL LLP

Peter J. Barrett (VA 46179) Edward O. Sassower, P.C.

Jeremy S. Williams (VA 77469) Joshua A. Sussberg, P.C. (admitted pro hac vice)

901 East Byrd Street, Suite 1000 601 Lexington Avenue

Richmond, Virginia 23219-4071 New York, New York 10022

Telephone: (804) 644-1700 Telephone: (212) 446-4800

Facsimile: (804) 783-6192 Facsimile: (212) 446-4900

Email: Michael.Condyles@KutakRock.com Email: edward.sassower@kirkland.com

Peter.Barrett@KutakRock.com joshua.sussberg@kirkland.com

Jeremy.Williams@KutakRock.com

-andCo-Counsel to the Debtors

and Debtors in Possession James H.M. Sprayregen, P.C.

Anup Sathy, P.C. 

Chad J. Husnick, P.C. (admitted pro hac vice)

Emily E. Geier (admitted pro hac vice)

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Email: james.sprayregen@kirkland.com

 anup.sathy@kirkland.com

 chad.husnick@kirkland.com

emily.geier@kirkland.com

Co-Counsel to the Debtors

and Debtors in Possession

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Exhibit A

Bidding Procedures Order

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Exhibit B

Remaining Real Estate Asset(s) to be Sold

Real 

Estate 

Assets(s) 

to be Sold

Name and 

Address of 

Purchaser

Proposed 

Purchase 

Price

Location of 

Assets to 

be Sold

Location 

of Sale (if 

different 

than 

location 

of Assets)

Description 

of 

Marketing 

or Sale 

Process

Significant 

Terms of 

Sale or 

Transfer 

Agreement

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1

Exhibit 5

Remaining Real Estate Assets Included in Initial Auction1

No. Store # Store Name Chain State Entity Type

1 5669 Tustin BRU CA Delaware Lease

2 5670 Tempe BRU AZ Delaware Lease

3 5673 Henderson BRU NV Delaware Lease

4 5693 Ontario BRU CA Delaware GL

5 5858 Salinas BRU CA Delaware GL

6 6370 Deptford BRU NJ Delaware Lease

7 6371 Bensalem BRU PA Map 2005 Lease

8 6372 Fairless Hills BRU PA Map 2005 Lease

9 6373 Mays Landing BRU NJ Delaware Lease

10 6376 Christiana BRU DE Delaware Lease

11 6384 Peabody BRU MA Map 2005 Lease

12 6385 Warwick BRU RI Delaware Lease

13 6410 Nanuet BRU NY Delaware Lease

14 6425 Harrisburg BRU PA Map 2005 GL

15 6426 Winston Salem BRU NC Delaware GL

16 6429 Manchester BRU CT Delaware GL

17 6440 Taylor BRU MI Delaware Lease

18 6444 Staten Island BRU NY Delaware Lease

19 6456 Clearwater BRU FL Delaware Lease

20 6481 Manalapan BRU NJ Delaware Lease

21 6478 Cranberry BRU PA Map 2005 Lease

22 6477 Waldorf BRU MD Delaware Lease

23 6491 Waterford BRU CT Delaware Lease

24 6508 Toms River BRU NJ Delaware Lease

25 6504 Lancaster BRU PA Map 2005 Lease

26 6502 Springfield BRU IL Delaware GL

27 6518 Danbury BRU CT Delaware GL

28 6539 Totowa BRU NJ Delaware Lease

29 6534 Chula Vista BRU CA Delaware GL

30 6563 Nashville BRU TN Delaware Lease

31 6570 S. Richmond BRU VA Delaware GL

 

1 The Debtors reserve the right to amend this list of properties to be sold at any Auction at any time and for any 

reason in their business judgment, in consultation with the Consultation Parties.

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2

32 6536 Ft. Myers BRU FL Delaware GL

33 6576 Shorewood BRU IL Delaware Lease

34 6642 Pearl City BRU HI Delaware Lease

35 7705 South Austin BRU TX Delaware Lease

36 7703 Metairie BRU LA Delaware Lease

37 7713 McAllen BRU TX Delaware Lease

38 7711 San Antonio BRU TX Delaware Lease

39 8826 Coral Way BRU FL Delaware Lease

40 6605 Kissimmee BRU FL Delaware Lease

41 8857 Kendall BRU FL Delaware Lease

42 8854 Kennesaw BRU GA Delaware Lease

43 8828 Mobile BRU AL Delaware Lease

44 8855 Evans BRU GA Delaware GL

45 8861 Pembroke Pines BRU FL Delaware Lease

46 8880 Chattanooga BRU TN Delaware Lease

47 8865 Lauderhill BRU FL Delaware Lease

48 8881 Concord BRU NC Delaware GL

49 8884 Chantilly BRU VA Delaware Lease

50 8863 Knoxville BRU TN Delaware Lease

51 8878 Pineville BRU NC Delaware Lease

52 8882 Chesapeake BRU VA Delaware Lease

53 8894 Greensboro BRU NC Delaware Lease

54 9247 Sterling Heights BRU MI Delaware Lease

55 9246 Burbank BRU IL Delaware Lease

56 9244 Forest Park BRU OH Map 2005 Lease

57 9541 St. Louis BRU MO Delaware Lease

58 9548 Tulsa BRU OK Delaware Lease

59 9547 Cypress BRU TX Delaware Lease

60 9572 Lynnwood BRU WA Delaware Lease

61 9553 Westminster BRU CO Delaware Lease

62 9552 Arlington BRU TX Delaware Lease

63 9562 Mesquite BRU TX Delaware Lease

64 9577 Oklahoma City BRU OK Delaware GL

65 9583 Kansas City BRU MO Delaware GL

66 5602 Van Nuys TRU CA Delaware Lease

67 5626 La Mesa TRU CA Delaware Lease

68 5634 Huntington Beach TRU CA Delaware Lease

69 5639 Hawaii TRU HI Delaware GL

70 5683 Ontario Mills TRU CA Delaware GL

71 5685 Murray TRU UT Delaware Lease

72 5807 Arden Way TRU CA Delaware Lease

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3

73 5808 Sunrise TRU CA Delaware Lease

74 5810 Stockton TRU CA Delaware GL

75 5811 Dublin TRU CA Delaware Lease

76 6003 Springfield TRU IL Delaware GL

77 6005 Melrose TRU IL Delaware Owned

78 6012 Woodridge TRU IL Delaware Owned

79 6033 Madison TRU WI Delaware GL

80 6077 Jackson TRU MI Delaware Lease

81 6304 Totowa TRU NJ Delaware GL

82 6308 Flatbush TRU NY Delaware Owned

83 6309 Massapequa TRU NY Delaware Lease

84 6312 Staten Island TRU NY Delaware Lease

85 6313 Eatontown TRU NJ Delaware Lease

86 6332 Danbury TRU CT Delaware GL

87 7022 Monroe TRU LA Delaware Lease

88 7028 West El Paso TRU TX Delaware Lease

89 7040 Hattiesburg TRU MS Delaware Lease

90 7043 Lake Charles TRU LA Delaware Owned

91 7046 Sugarland TRU TX Delaware GL

92 7080 Citrus Park TRU FL Delaware Lease

93 7081 Santa Ana TRU CA Delaware Lease

94 7502 Warwick TRU RI Delaware Lease

95 7503 Peabody TRU MA Map 2005 GL

96 7517 Clay TRU NY Delaware Lease

97 7532 Buckland Hills TRU CT Delaware GL

98 7802 Fort Worth TRU TX Delaware Lease

99 7805 Mesquite TRU TX Delaware Lease

100 8302 Montgomeryville TRU PA Map 2005 Lease

101 8308 Cottman TRU PA Map 2005 Lease

102 8314 Christiana TRU DE Delaware Owned

103 8319 Gaithersburg TRU MD Delaware Lease

104 8331 Colonial Heights TRU VA Delaware GL

105 8350 Glen Burnie TRU MD Delaware Lease

106 8373 Greensboro South TRU NC Delaware GL

107 8376 Winston-Salem TRU NC Delaware Owned

108 8705 Hialeah TRU FL Delaware Lease

109 8706 Plantation TRU FL Delaware Owned

110 8710 Fort Myers TRU FL Delaware GL

111 8719 Mayaguez TRU PR Delaware GL

112 8732 Orange Park TRU FL Delaware GL

113 8733 Gainesville TRU FL Delaware Lease

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114 8810 Knoxville TRU TN Delaware Lease

115 8811 Gwinnett TRU GA Delaware Lease

116 8825 Concord TRU NC Delaware GL

117 8827 Mobile TRU AL Delaware Owned

118 8909 Greenwood TRU IN Delaware Lease

119 8918 Evansville TRU IN Delaware GL

120 8920 Fort Wayne TRU IN Delaware Lease

121 9206 Niles TRU OH Map 2005 Lease

122 9227 Henrietta TRU NY Delaware GL

123 9229 Greensburg TRU PA Map 2005 GL

124 9502 Independence TRU MO Delaware Lease

125 9520 Metro North TRU MO Delaware GL

126 9525 Tulsa TRU OK Delaware Lease

127 7543 Kissimmee TRU FL Delaware Lease

128 6322 Douglaston TRU NY Delaware Lease

129 5573 Garland, TX SBS TX Delaware Lease

130 5579 Upland, CA SBS CA Delaware Lease

131 5641 Goodyear SBS AZ Delaware Lease

132 5644 North Phoenix SBS AZ Delaware Lease

133 5646 E. Tucson SBS AZ Delaware GL

134 5657 Chino Hills SBS CA Delaware Lease

135 5803 Pleasant Hill (Concord) SBS CA Delaware Lease

136 5806 Elk Grove SBS CA Delaware GL

137 5822 Fremont SBS CA Delaware Lease

138 6019 Riverview SBS IL Delaware GL

139 6022 Algonquin SBS IL Delaware Lease

140 6034 Rockford SBS IL Delaware Lease

141 6063 South Elgin SBS IL Delaware Lease

142 6305 E. Brunswick SBS NJ Delaware Lease

143 6307 Watchung SBS NJ Delaware Lease

144 6310 Valley Stream SBS NY Delaware Owned

145 6315 Jersey City SBS NJ Delaware Lease

146 6317 Lake Grove SBS NY Delaware Lease

147 6318 Woodbridge SBS NJ Delaware Lease

148 6324 Bayshore SBS NY Delaware Lease

149 6329 Union SBS NJ Delaware Lease

150 6334 Raritan SBS NJ Delaware Lease

151 6335 Rockaway SBS NJ Delaware GL

152 6336 Bronx SBS NY Delaware Lease

153 6347 White Plains SBS NY Delaware Lease

154 6623 Secaucus SBS NJ Delaware Lease

Case 17-34665-KLP Doc 2787 Filed 04/19/18 Entered 04/19/18 18:26:27 Desc Main

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5

155 6624 NW Las Vegas SBS NV Delaware Lease

156 6629 Bronx Terminal SBS NY Delaware Lease

157 6753 Rego Park SBS NY Delaware Lease

158 6755 Coral Springs SBS FL Delaware Lease

159 6756 Memphis SBS TN Delaware Lease

160 7004 Katy SBS TX Delaware Lease

161 7009 Willowbrook SBS TX Delaware Lease

162 7017 Baton Rouge SBS LA Delaware Lease

163 7032 North San Antonio SBS TX Delaware Lease

164 7506 Woburn SBS MA Map 2005 Lease

165 7507 Dedham SBS MA Delaware Lease

166 7518 Utica SBS NY Delaware GL

167 7527 Leominster SBS MA Map 2005 Lease

168 7530 Hyannis SBS MA Map 2005 Lease

169 7808 Cedar Hill Plaza SBS TX Delaware Lease

170 7820 Dallas_North Park SBS TX Delaware Lease

171 8002 Tukwila SBS WA Delaware Lease

172 8004 Jantzen Beach SBS OR Delaware Lease

173 8011 Bellevue SBS WA Delaware Lease

174 8014 Meridian SBS ID Delaware Lease

175 8245 Thornton SBS CO Delaware Lease

176 8315 West Harrisburg SBS PA Delaware Lease

177 8322 Horsham SBS PA Delaware Lease

178 8330 Vineland SBS NJ Delaware GL

179 8345 Hagerstown SBS MD Delaware Lease

180 8348 Bel Air SBS MD Delaware GL

181 8353 Richmond SBS VA Delaware Lease

182 8357 Virginia Beach SBS VA Delaware GL

183 8358 Roanoke SBS VA Delaware GL

184 8363 Columbia SBS MD Delaware Lease

185 8367 Parkersburg SBS WV Delaware Lease

186 8374 Fayetteville SBS NC Delaware Lease

187 8722 Plaza Las Americas SBS PR Delaware GL

188 8725 Waterford Lakes SBS FL Delaware Lease

189 8727 Wesley Chapel SBS FL Delaware Lease

190 8729 Jacksonville SBS FL Delaware Lease

191 8751 Milennia SBS FL Delaware Lease

192 8803 McDonough SBS GA Delaware Lease

193 8805 Smyrna SBS GA Delaware Lease

194 8809 Huntsville SBS AL Delaware Lease

195 8818 Columbus SBS GA Delaware GL

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196 8819 Pensacola SBS FL Delaware Lease

197 8822 Greenville SBS SC Delaware Lease

198 8823 Spartanburg SBS SC Delaware Lease

199 8834 Gastonia SBS NC Delaware Lease

200 8870 Mall of Georgia SBS GA Delaware Lease

201 8889 North Raleigh SBS NC Delaware Lease

202 8911 Polaris SBS OH Delaware Lease

203 8928 Paducah SBS KY Delaware Lease

204 8931 Beavercreek SBS OH Delaware Lease

205 9007 Southlake SBS TX Delaware Lease

206 9009 Birmingham SBS AL Delaware Lease

207 9062 Rossmoor, CA SBS CA Delaware GL

208 9063 Vallejo, CA SBS CA Delaware Lease

209 9204 Mayfield SBS OH Map 2005 GL

210 9205 Parma SBS OH Map 2005 Lease

211 9223 Amherst SBS NY Delaware GL

212 9504 Topeka SBS KS Delaware GL

213 9512 Springfield SBS MO Delaware GL

214 9528 Aurora SBS CO Delaware GL

215 9533 Fort Collins SBS CO Delaware Lease

216 9537 Sioux Falls SBS SD Delaware GL

217 9549 Ingram SBS TX Delaware Lease

218 7047 Austin, TX SBS TX Delaware Lease

219 9545 LITTLETON SBS CO Delaware Lease

220 5654 Montebello SBS CA Delaware GL

221 6338 Long Island City SBS NY Delaware GL

222 6350 Holbrook SBS NY Delaware Lease

223 7504 Auburn SBS MA Map 2005 Lease

224 7058 Sevierville Outlet TN Delaware Lease

225 7059 National Harbor Outlet MD Delaware Lease

226 7060 Los Angeles Outlet CA Delaware Lease

227 7061 Tempe Outlet AZ Delaware Lease

228 7063 St. Augustine Outlet FL Delaware Lease

229 7064 Glendale Outlet NY Delaware Lease

230 7065 Tannersville Outlet PA Delaware Lease

231 7066 Orlando Outlet FL Delaware Lease

232 7067 Tinton Falls Outlet NJ Delaware Lease

233 7071 Tulalip Outlet WA Delaware Lease

234 7082 Livermore Outlet CA Delaware Lease

235 7085 Las Vegas Outlet NV Delaware Lease

236 7068 Wrentham Outlet MA Delaware Lease

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237 7077 Woodbridge Outlet VA Delaware Lease

238 7088 San Marcos Outlet TX Delaware Lease

239 7089 Grapevine Outlet TX Delaware Lease

240 7093 Southaven Outlet MS Delaware Lease

241 7094 Branson Outlet MO Delaware Lease

242 7544 Miami Outlet FL Delaware Lease

243 7546 Gilroy Outlet CA Delaware Lease

244 7547 Birch Run Outlet MI Delaware Lease

245 7548 Smithfield Outlet NC Delaware Lease

246 7549 Ontario Outlet CA Delaware Lease

247 5749 Camarillo Outlet CA Delaware Lease

248 5750 Dawsonville Outlet GA Delaware Lease

249 5751 Barceloneta Outlet PR Delaware Lease

250 5752 Round Rock Outlet TX Delaware Lease

251 5753 West Palm Beach Outlet FL Delaware Lease

252 5754 San Diego Outlet CA Delaware Lease

253 5755 Nashville Outlet TN Delaware Lease

254 5756 Woodstock Outlet GA Delaware Lease

255 5757 Chesterfield Outlet MO Delaware Lease

256 6164 El Paso Outlet TX Delaware Lease

257 6630 Oceanside Outlet NY Delaware Lease

258 6978 Limerick Outlet PA Delaware Lease

259 7103 Orlando Outlet FL Delaware Lease

260 7158 Woodbury Outlet NY Delaware Lease

261 7159 Elizabeth Outlet NJ Delaware Lease

262 8018 Milpitas Outlet CA Delaware Lease

263 8285 Atlantic City Outlet NJ Delaware Lease

264 8286 Las Vegas Outlet NV Delaware Lease

265 8288 Sunrise Outlet FL Delaware Lease

266 8289 Shirley Outlet NY Delaware Lease

267 9057 Foley Outlet AL Delaware Lease

268 9058 Kaneohe Outlet HI Delaware Lease

269 5601 Rialto Warehouse DC CA Delaware Owned

270 6001 Joliet Warehouse DC IL Delaware Lease

271 6301 Mount Olive Warehouse DC NJ Delaware Owned

272 7701 Midlothian Warehouse DC TX Delaware Owned

273 9501 Lee Summit Warehouse DC MO Delaware Owned

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