AMENDED AND RESTATED ASSET PURCHASE AGREEMENT

(a)           all Accounts Receivable existing on the date hereof or arising in the ordinary course of the Business after the date hereof, except to the extent that any of the foregoing are collected, paid, satisfied or discharged on or prior to the Closing;

(b)           all credits, claims for refunds, prepaid expenses, prepaid rent, and prepaid items relating to the Business, including without limitation, such of the foregoing as are listed and described on Schedule 1.1(b) ;

(c)           all Contracts listed or described in Schedules 1.1(c)(i), (c)(ii), (c)(iii) and (c) (iv) other than those excluded pursuant to the next to last paragraph of this Section 1.1 , as the same may be supplemented pursuant to the next to last paragraph of this Section 1.1 (the “ Assigned Contracts ”):

(i)                 all of the Contracts between any Seller and a customer relating to the Business (the “ Customer Contracts ”), including without limitation, such of the foregoing as are listed or described on Schedule 1.1(c)(i) or that relate to the Business or arise in the ordinary course of the Business after the date hereof;

(ii)                 the Contracts between any Seller and a vendor or other third party providing goods or services relating to the Business (the “ Supplier Contracts ”), including without limitation, such of the foregoing as are listed or described on Schedule 1.1(c)(ii) or that relate to the Business and arise in the ordinary course of the Business after the date hereof;

(iii)                 the licenses, sublicenses or other Contracts to which a Seller is a party or otherwise bound pursuant to which Sellers have granted,

 been granted, have given, or have obtained any right to use any Intellectual Property that is material to the Business or is otherwise related to the Acquired Assets, including without limitation such of the foregoing as are listed or described on Schedule 1.1(c)(iii) (the “ License Agreements ”); and

(iv)                 all Material Contracts not otherwise covered by clauses (i)-(iii) above and the other Contracts and arrangements that are listed or described on Schedule 1.1(c)(iv) .

(d)           any rights, claims or causes of action of Sellers against third parties arising out of events occurring prior to the Closing Date, including and, for the avoidance of doubt, arising out of events occurring prior to the Petition Date and including any rights under or pursuant to any and all warranties, representations and guarantees made by suppliers, manufacturers and contractors relating to products sold, or services provided, to Sellers, excluding only the rights, claims and causes of action that are identified as Excluded Assets in Section 1.2 ;

(e)           all inventory, finished goods, goods in transit, works in process, samples, raw materials, packaging materials and other materials used or held for use in the operation of the Business or held by third parties, whether on consignment or not, including without limitation such of the foregoing as are listed or described on Schedule 1.1(e) (collectively, the “ Inventory ”);

(f)           (i) the Owned Real Property used in the operation of the Business that is listed and described on Schedule 1.1(f)(i) (the “ Acquired Owned Real Property ”) and (ii) all Leases of Leased Real Property used in the operation of the Business that are listed and described on Schedule 1.1(f)(ii) , other than such Leases that are excluded pursuant to the next to last paragraph of this Section 1.1 , as the same may be supplemented pursuant to the next to last paragraph of this Section 1.1 (such Leases, the “ Assumed Leases ” and the Leased Real Property subject thereto, the “ Acquired Leased Real Property ”);

(g)           all machinery, equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles, tools, order entry devices and all other tangible personal property owned by the Sellers that are used in the operation of the Business and located on any Owned Real Property or on any Leased Real Property (collectively, the “ Tangible Personal Property ”), including, without limitation, such of the foregoing as are listed or described on Schedule 1.1(g) ;

(h)           all Trademarks that are listed on Schedule 1.1(h) , and each of the following used in connection with such Trademarks or products manufactured and sold under or that are used in connection with such Trademarks as of the Effective Date: all trade dress, logos, slogans, Domain Names, and other similar designations of source or origin, together with the goodwill symbolized by, and any registrations and applications for, the foregoing; Patents; Copyrights (other than Software); know-how, Trade Secrets, and rights in proprietary processes, formulae, Customer Lists, and supplier lists; and all other Intellectual Property owned, used or licensed by Sellers;

(i)           all rights in the computer software programs and information technology systems listed or described on Schedule 1.1(i) (the “ Software ”);

(j)           all Permits issued to the Sellers by any Governmental Entity relating to the operation of the Business and any subsidies and remissions provided by any Government Entity to Sellers with respect to the Business;

(k)           the bank accounts and lockbox arrangements relating to the Business that are listed or described on Schedule 1.1(k) (excluding all rights or incidents of interest with respect to the cash or cash equivalents in such bank accounts or lock box arrangements on or before the Closing Date);

(l)           all Documents except those (i) specifically excluded under Section 1.2(l) or (ii) relating to employees of Sellers who are not Hired Employees;

(m)                  all of Sellers’ rights, to the extent they are transferable, to make claims, and to receive the proceeds of any such claims, (i) under property or casualty insurance policies maintained by or on behalf of Sellers, or any of them, for any loss to an Acquired Asset occurring prior to Closing that is covered by such policies, and (ii) under liability insurance policies maintained by or on behalf of Sellers, or any of them, with respect to any Assumed Liability;

(n)           all goodwill associated with the Business or the Acquired Assets;

(o)           all telephone and telephone facsimile numbers and other directory listings used in connection with the Business;

(p)           all original artwork, prints, lithographs, etchings, oil paintings, watercolor drawings and other similar works of art located at any Owned Real Property or Leased Real Property;

(q)           all rights of Sellers under letters of credit or similar instruments issued by third parties naming any Seller as a beneficiary thereunder relating to the Acquired Assets; and

(r)           all other or additional privileges, rights and interests associated with the Acquired Assets of every kind and description and wherever located that are used or intended for use in connection with, or that are necessary to the continued operation of, the Business as presently being operated.

(a)     all cash, cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit and other bank accounts, or marketable securities of the Sellers;

(b)     all of the Accounts Receivable that have been satisfied or discharged prior to the Closing;

(c)     all intercompany payables, liabilities and obligations (of any nature or kind, and whether based in common law or statute or arising under written contract or otherwise, known or unknown, fixed or contingent, accrued or unaccrued, liquidated or unliquidated, real or potential) owed or payable to any Sellers or any affiliate thereof or as to which any Seller or any affiliate thereof is an obligor or is otherwise responsible or liable;

(d)     all of the Contracts that have terminated or expired prior to the Closing in the ordinary course of the Business;

(e)     all Contracts, and all of Sellers’ rights thereunder, that are not Assigned Contracts (the “ Excluded Contracts ”);

(f)      all Owned Real Property other than Acquired Owned Real Property;

(g)     all Leases other than the Assumed Leases, after giving effect to the terms set forth in the next to last paragraph of Section 1.1 , and any letters of credit relating thereto;

(h)     any Inventory sold prior to the Closing in the ordinary course of the Business consistent with past practice;

(i)      any Tangible Personal Property disposed of in the ordinary course of the Business consistent with past practice;

(j)      any right the Sellers have with respect to any deferred Tax assets or any refund for Taxes;

(k)     any shares of capital stock or other equity interest of any Seller or any affiliate thereof or any securities convertible into, exchangeable or exercisable for shares of capital stock or other equity interest of any Seller or any affiliate thereof;

(l)      the company seal, minute books, charter documents, stock or equity record books and such other books and records as pertain to the organization, existence or capitalization of the Sellers or any affiliate thereof as well as any other Documents relating to the Sellers or any affiliate thereof related primarily to an Excluded Asset or Excluded Liability;

(m)    all avoidance actions and other causes of action under Sections 544 through 553, inclusive, of the Bankruptcy Code;

(n)     any right, property or asset that is listed or described on Schedule 1.2(n) ;

(o)     any rights, claims or causes of action of Sellers arising under this Agreement or the Ancillary Documents;

(p)     all receivables, claims or causes of action related primarily to any Excluded Asset;

(q)     all letters of credit related solely to any Excluded Asset;

(r)      all rights under (i) insurance policies relating to claims for losses related primarily to any Excluded Asset or Excluded Liability or (ii) directors’ and officers’ insurance policies or similar fiduciary policies; and

(s)     any asset of Sellers that would constitute an Acquired Asset (if owned by Sellers on the Closing Date) that is conveyed or otherwise disposed of during the period from the date hereof until the Closing Date as permitted by the terms of this Agreement.

(a)     all customer and consumer programs in the ordinary course of the Business, including gift certificates, customer deposits, store credits, product returns, promotional discounts and allowances;

(b)     all Liabilities of any Seller under each of the Assigned Contracts and the Assumed Leases arising after the Closing in respect of which the Bankruptcy Court has approved its assumption by, and assignment to, the Purchasers or, if required, a Third Party Consent has been obtained;

(c)     all Liabilities related to the Des Plaines Mortgage Loan;

(d)     amounts incurred in the ordinary course of business consistent with past practice that are current in nature (and not past due) and are owed to suppliers and service providers in respect of goods and services provided after the Petition Date to or for the benefit of the Acquired Assets that would have an administrative priority claim attached to them under Section 503(b)(1) of the Bankruptcy Code (collectively, “ Eligible Administrative Claims ”); provided , however , that (i) any amounts owed to any supplier set forth on Exhibit L must be on payment terms consistent with the terms set forth on Exhibit L in order to qualify as Eligible Administrative Claims, and (ii) Eligible Administrative Claims shall not include the claims of any suppliers or service providers to the Sellers since the Petition Date that provide for payment terms in excess of seven days unless otherwise set forth on Exhibit L; and provided , further , that all Eligible Administrative Claims shall be payable on the later of (i) 60 days after Closing and (ii) their respective scheduled payment dates.

(e)     (i) accrued payroll (including accrued payroll Taxes) for all current employees of Sellers and (ii) accrued (to the extent not paid by Sellers) and unused paid time off (“ PTO ”) to which the Hired Employees are entitled pursuant to the PTO policies of the Sellers applicable to such Hired Employees immediately prior to the Closing Date (the “ PTO Policies ”), and Purchasers shall permit such Hired Employees to use such PTO in accordance with Purchasers’ PTO policies; provided that during the period between the date hereof and the Closing Date, Sellers shall not modify or amend the PTO Policies with respect to the Hired Employees;

(f)      all Cure Costs; and

(g)     the other liabilities and obligations described on Schedule 1.3(g) .

(i)                 the Base Purchase Price shall be adjusted based on the amount obtained by subtracting seventy-two percent (72%) of the Pre-Closing DIP Balance from the Base Purchase Price (the “ Adjustment Amount ”);

(ii)                 if the Adjustment Amount is a positive number, the Adjusted Base Purchase Price shall be the Base Purchase Price less the Adjustment Amount; and

(iii)                 if the Adjustment Amount is a negative number, the Adjusted Base Purchase Price shall be the Base Purchase Price plus the absolute value of the Adjustment Amount.

 (b)  The Adjusted Base Purchase Price shall be paid in cash except to the extent of the face value of letters of credit included therein that are assumed or replaced by Purchasers at Closing.

(a)           At the Closing, the Sellers shall deliver to the Purchasers, or with respect to clause (iii) below, shall make available to the Purchasers at their then present location:

(i)                 one or more Bills of Sale, including a transfer of all Intellectual Property owned by the Sellers and included in the Acquired Assets but that is not covered in the instruments of assignment identified in Section 2.2(a)(ii) , Deeds with respect to each Acquired Owned Real Property, the Assignment and Assumption Agreement, which shall include, but not be limited to, the assignment and assumption of the Lease of each Acquired Leased Real Property, and each other Ancillary Document to which any Seller is a party, duly executed by the appropriate Sellers;

(ii)                 instruments of assignment of the Patents (the “ Assignment of Patents ”), Trademarks (the “ Assignment of Trademarks ”), Copyrights (the “ Assignment of Copyrights ”) and Domain Names (the “ Assignment of Domain Names ”) that are owned by Sellers and included in the Acquired Assets, if any, duly executed by Sellers, in form for recordation with the

(iii)                 all material artwork, sketches, designs, drawings and copyrighted materials (registered and unregistered) that are included in the Acquired Assets, including all existing archives thereof, in the form maintained by Sellers and all existing hard copies of the foregoing, in each case as in Sellers’ possession;

(iv)                 keys for the Acquired Owned Real Property and the Acquired Leased Real Property, the combinations for any safes located on the Acquired Owned Real Property and the Acquired Leased Real Property, and the access codes for any electronic security systems located on the Acquired Owned Real Property and the Acquired Leased Real Property;

(v)                 a certified copy of the Sale Order;

(vi)                 copies of all Third Party Consents;

(vii)                 the officer’s certificates required to be delivered pursuant to Sections 6.3(a) , (b) and (f) ;

(viii)                 a certificate executed by each Seller that transfers a United States real property interest (as defined in Section 897(c) of the Code) pursuant to this Agreement, in the form prescribed under Treasury Regulation Section 1.1445-2(b), that such Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Code;

(ix)                 the transition services agreement to be entered into between the Sellers and the Purchasers (the “ Transition Services Agreement ”), substantially in the form of Exhibit I attached hereto, and a “Reverse Transition Services Agreement” (herein so called) in substantially the same form as the Transition Services Agreement but with Purchasers providing certain transition services to Sellers necessary for the administration of the Chapter 11 Cases, duly executed by each Seller;

(x)                 the Loan Assignment and Assumption Agreements, duly executed by HSM Real Estate LLC and Hart Schaffner & Marx;

(xi)                 a closing statement, duly executed by Sellers, setting forth customary real property matters;

(xii)                 all other previously undelivered certificates and other documents required to be delivered by the Sellers to the Purchasers at or prior to the Closing Date in connection with the Asset Purchase;

(xiii)                 unconditional commitments (the “ Title Commitments ”) by the Title Company to issue ALTA owners title insurance policies insuring the interest of Purchasers in the Acquired Owned Real Property following the consummation of the transactions contemplated hereby, subject only to Permitted Encumbrances and such other exceptions as are reasonably acceptable to Purchasers, and with such endorsements as Purchasers shall reasonably require; provided that such endorsements shall not include any endorsement the issuance of which requires that a survey, zoning opinion or similar third party work product be delivered to the Title Company unless Purchasers obtain same at Purchaser’s expense;

(xiv)                 owner’s affidavits, duly executed by the applicable Sellers, in a form reasonably acceptable to the Title Company to issue title policies in accordance with the Title Commitments without the standard or pre-printed exceptions contained in the Title Commitments (other than any standard or pre-printed exceptions that can only be deleted by delivery of a survey to the Title Company), together with all other items within Sellers’ control that are reasonably required by the Title Company to issue such title policies, provided , that any requirements contained in the Title Commitments that are not waived or deleted by the Title Company shall be deemed to be reasonable; and

(xv)                 such other bills of sale, deeds, endorsements, assignments and other good and sufficient instruments of conveyance and transfer, and any other documents and writings (either executed counterparts or otherwise) required or reasonably requested by Purchasers to vest in Purchasers all the right, title and interest of Sellers in, to or under any or all the Acquired Assets, each in form and substance reasonably satisfactory to Purchasers.

(b)           At the Closing, the Purchasers shall deliver to the Sellers or Wachovia as provided in this Agreement:

(i)                 the cash portion of the Adjusted Base Purchase Price by wire transfer in immediately available funds to an account or accounts designated by the Sellers;

(ii)                 the Junior Secured Note;

(iii)                 the Assignment and Assumption Agreement and each other Ancillary Document to which the Purchasers are party, duly executed by the Purchasers;

(iv)                 the Transition Services Agreement (and the Reverse Transition Services Agreement) duly executed by the Purchasers;

(v)                 the Loan Assignment and Assumption Agreements, duly executed by one or more designee of the Purchasers;

(vi)                 the officer’s certificates required to be delivered pursuant to Sections 6.2(a) and (b) ;

(vii)                 a closing statement, duly executed by Purchaser, setting forth customary real property matters;

(viii)                 all other previously undelivered certificates and other documents required to be delivered by the Purchasers to the Sellers at or prior to the Closing Date in connection with the Asset Purchase; and

(ix)                 any other documents, instruments and writings (either executed counterparts or otherwise) required or reasonably requested by Sellers to be delivered by Purchasers pursuant to this Agreement for Sellers to transfer and assign the Assumed Liabilities to Purchasers and for Purchasers to assume the Assumed Liabilities, each in form and substance reasonably satisfactory to Sellers and Purchasers.

(a)           Sellers are in compliance with all Legal Requirements applicable to their respective operations and the Business, except as would not reasonably be expected to have a Material Adverse Effect.

(b)           Sellers currently have all material Permits required for the operation of the Business as presently conducted and, subject to the effects of the filing of the Chapter 11 Cases, all such Permits are in full force and effect in all material respects. No Seller is in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any Permit to which it is a party,

(c)           The representations and warranties set forth in this Section 3.6 shall not be applicable to (i) Intellectual Property, which is covered by Section 3.12(d) , (ii) Environmental Laws and Environmental Permits, which are covered by Section 3.13(c) , or (iii) Legal Requirements applicable to the Owned Real Property and the Leased Real Property or to employment matters, which are covered by Sections 3.13(a)(iii) and 3.14 , respectively.

(a)           Sellers have conducted the Business in the ordinary course of the Business;

(b)           there have not occurred any facts, conditions, changes, violations, inaccuracies, circumstances, effects or events that have constituted, or which would be reasonably likely to result in, individually or in the aggregate, a Material Adverse Effect; and

(c)           no Seller has taken any action described in Section 5.1 .

(a)           Schedule 3.12(a) sets forth a true, correct and complete list, in all material respects, of all U.S. and foreign (i) issued Patents and pending applications for Patents; (ii) registered Trademarks and pending applications for Trademarks; (iii) registered Copyrights and pending applications for Copyrights; and (iv) all Domain Names, in each case which is owned by a Seller and which is material to the Business. Except as set forth on Schedule 3.12(a) , Sellers are the sole record owners of all of the Intellectual Property set forth on Schedule 3.12(a) , and all such Intellectual Property is subsisting and, to Sellers’ Knowledge, valid and enforceable. Subject to Section 1.5 , Sellers will transfer to Purchasers, all of their right, title and interest in and to all Intellectual Property owned by Sellers, and all of their right and interest in all Intellectual Property licensed to Sellers, in each case to the extent included in the Acquired Assets.

(b)           Schedule 1.1(c)(iii) sets forth a true, correct and complete list, in all material respects, of all License Agreements, including any and all amendments and modifications thereto, and the Sellers have provided copies of all such License Agreements to Purchasers. Except as otherwise disclosed in Schedule 1.1(c)(iii) , each License Agreement is in full force and effect and is a valid and binding obligation of the Seller party thereto and, to Sellers’ Knowledge, the other parties thereto, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally. Upon entry of the Sale Order and payment of the Cure Costs, (x) no Seller will be in breach or default of its obligations under any License Agreement, (y) no condition exists that with notice or lapse of time or both would constitute a default by any Seller under any of the License Agreements, and (z) to Sellers’ Knowledge, no other party to any of the License Agreements is in breach or default thereunder, except in the case of clauses (x), (y), and (z) for any breaches or defaults that would not reasonably be expected to have a Material Adverse Effect.

(c)           To Sellers’ Knowledge, except as would not reasonably be expected to have a Material Adverse Effect, Sellers own, or have a valid right to use, free and clear of all Encumbrances (other than Permitted Encumbrances and any Encumbrances arising pursuant to the terms of a License), all Intellectual Property necessary to conduct the Business.

(d)           Except as disclosed on Schedule 3.12(d) , and except as would not reasonably be expected to have a Material Adverse Effect, (i) the conduct of the Business by Sellers (including the products currently sold by Sellers) as currently conducted

does not infringe, misappropriate or otherwise violate any Person’s intellectual property rights, and there has been no such claim or Action asserted or threatened in writing and that has not been resolved in the past four (4) years against any Seller, or to Sellers’ Knowledge, any other Person, and (ii) to Sellers’ Knowledge, no Person (including any current or former officer, director, employee or contractor of any Seller), is infringing, misappropriating or otherwise violating any Intellectual Property owned by Sellers, or to which Sellers have any exclusive license, in the conduct of the Business, and no such claims or Actions have been asserted or threatened in writing and that have not been resolved against any Person by Sellers, or, to Sellers’ Knowledge, any other Person, in the past four (4) years.

(e)           The Sellers have taken commercially reasonable measures to protect the confidentiality of their Trade Secrets.

(a)           Schedule 3.13(a)(i) contains a true and complete list, in all material respects, of all real property (including the common address thereof) which is owned by any Seller as of the Effective Date (collectively, the “ Owned Real Property ”). Schedule 3.13(a)(ii) contains a true and complete list, in all material respects, of all leases or other occupancy agreements (collectively, “ Leases ”) of real property leased by Sellers in connection with the Business as of the Effective Date (the “ Leased Real Property ”). Sellers have provided true, complete and correct copies of the Leases to Purchasers for each Assumed Lease, including any amendments thereto.

(i)                 Sellers have received all Permits that are necessary in connection with Sellers’ occupancy, ownership or leasing of the Acquired Owned Real Property and the Acquired Leased Real Property and the present use of the Acquired Owned Real Property and the Acquired Leased Real Property by Sellers does not violate the Permits applicable thereto, except where the failure to receive, or violation of, a Permit would not reasonably be expected to have a Material Adverse Effect.

(ii)                 No Seller has received written notice of, nor to Sellers’ Knowledge is there any threatened (A) condemnation, eminent domain, expropriation or similar proceeding affecting the Acquired Owned Real Property or the Acquired Leased Real Property, (B) proceeding to change the zoning classification of any portion of the Acquired Owned Real Property or the Acquired Leased Real Property or (C) imposition of any special assessments for public betterments affecting the Acquired Owned Real Property or the Acquired Leased Real Property, which in each of clauses (A), (B) and (C) would reasonably be expected to have a Material Adverse Effect.

(iii)                 The Acquired Owned Real Property and the Acquired Leased Real Property used by Sellers, and the present uses of the Acquired Owned Real Property and the Acquired Leased Real Property by Sellers, are in compliance with, and Sellers have received no written notice that they are

in default under or in violation of, any building, zoning, land use, public health, public safety, sewage, water, sanitation or other comparable Legal Requirement except for such noncompliance, default or violation that would not reasonably be expected to have a Material Adverse Effect.

(iv)                 Except as otherwise disclosed in Schedule 3.13(a)(iv)(1) , each Assumed Lease is in full force and effect and is a valid and binding obligation of the Seller party thereto and, to the Knowledge of the Sellers, the other parties thereto, in accordance with its terms. Since the Petition Date and to the Knowledge of Sellers, Sellers have performed all of their respective obligations under the Assumed Leases in all material respects, except with respect to obligations the Sellers are prohibited from performing pursuant to the automatic stay in connection with the Chapter 11 Cases.

(v)                 No third parties have any options to purchase and/or rights of first offer or refusal or other pre-emptive rights or purchase rights with respect to any of the Acquired Owned Real Property, other than any such rights that would not reasonably be expected to have a Material Adverse Effect.

(b)           Immediately prior to the Closing, Sellers will have good, valid, marketable and insurable title in fee simple to the Acquired Owned Real Property, free and clear of all Encumbrances, except Permitted Encumbrances.

(c)           Except as set forth in Schedule 3.13(c) or as would not reasonably be expected to have a Material Adverse Effect:

(i)            Sellers have all Environmental Permits necessary for the lawful operation of the Business as currently conducted.

(ii)           The current operations of the Business comply with, and are not subject to any Order that is not generally applicable to Persons engaged in a business similar to the Business with respect to, all applicable Environmental Laws.

(iii)           No Seller has received written notice (1) alleging that the activities of the Business are in violation of any Environmental Laws, (2) of the institution or threat of any claim or Proceeding against, or investigation of, such Seller by any Governmental Entity or third party related to Hazardous Substances or Environmental Law, or (3) of the investigation, remediation or removal of Hazardous Substances at, on, under or from the Acquired Owned Real Property or the Acquired Leased Real Property.

(iv)           There has been no Release of any Hazardous Substances at, on, under or from any of the Acquired Owned Real Property or the Acquired Leased Real Property, and to Sellers’ Knowledge, none of such properties has been used by any Person as a (A) landfill or (B) storage, treatment or disposal site for any type of hazardous waste as defined under the RCRA that would require a permit pursuant to the RCRA.

(v)           There are no claims or Proceedings by any employee pending or, to Sellers’ Knowledge, threatened, against any Seller that are premised on the exposure to asbestos or asbestos-containing material in any of the Acquired Owned Real Property or the Acquired Leased Real Property.

(vi)           The storage tanks that presently exist on, at or under any of the Acquired Owned Real Property or, to Sellers’ Knowledge, the Acquired Leased Real Property are currently operated and maintained in all material respects in accordance with all Environmental Laws and none of them is Releasing any Hazardous Substance.

(vii)            No Encumbrance (other than a Permitted Encumbrance) has been imposed or asserted on any Acquired Owned Real Property or any Acquired Leased Real Property used by Sellers by any Governmental Entity in connection with any Environmental Law.

(viii)                      Sellers have made available or provided Purchasers with copies of the most recent versions of the material documents, records and information in Sellers’ possession concerning the condition of the Environment at any of the Acquired Owned Real Property or Acquired Leased Real Property, whether generated by Sellers or others, including environmental audits and environmental site assessments.

(a)           Schedule 3.14(a) sets forth, as of the date of this Agreement, a true and complete list of each (i) deferred compensation plan, (ii) incentive compensation plan, (iii) equity compensation plan, (iv) “welfare” plan, fund or program (within the meaning of Section 3(1) of ERISA), (v) “pension” plan, fund or program (within the meaning of Section 3(2) of ERISA), (vi) “employee benefit plan” (within the meaning of Section 3(3) of ERISA, (vii) employment (including offer letters other than those that make no promises of any term of employment or other benefit to be provided to the individual employee thereunder), termination, severance or “change in control” agreement and (viii) other material employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by Sellers or by any trade or business, whether or not incorporated (an “ ERISA Affiliate ”), that together with Sellers would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA, or to which Sellers or any ERISA Affiliate is party, for the benefit of any employee or director or any former employee or director of Sellers (each such plan is referred to herein as a “ Benefit Plan ”). Each Benefit Plan is and has been written (if a writing is required), operated and administered in all material respects in accordance with its terms and applicable law (including ERISA and the Code). Sellers have provided Purchasers with copies of the most recent actuarial valuation for each Benefit Plan subject to the funding requirements of Section 412 of the Code.

(b)           With respect to each Benefit Plan subject to Title IV or Section 302 of ERISA (“ Title IV Plan ”), no material Liability under Title IV of ERISA has been incurred by Sellers or any ERISA Affiliate that has not been satisfied in full. No Benefit Plan has incurred any “accumulated funding deficiency” within the meaning of Section 302

of ERISA or 412 of the Code. Except as set forth on Schedule 3.14(b) , no “reportable event” (within the meaning of Section 4043 of ERISA) has occurred with respect to any Benefit Plan. No Title IV Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA nor is any Title IV Plan a plan described in Section 4063(a) of ERISA.

(c)           No Benefit Plan contains any term or provision or is subject to any law that would prohibit the transactions contemplated in this Agreement. Schedule 3.14(c) lists each Benefit Plan under which the consummation of the transactions contemplated hereby could, either alone or in combination with another event (i) entitle any current or former employee, director or officer of Sellers or any ERISA Affiliate to severance pay or any other material payment, or (ii) accelerate the time of payment or vesting, or increase materially the amount of compensation due any current or former employee, agent, consultant, adviser, director or officer of Sellers or any ERISA Affiliate.

(d)           Except as set forth on Schedule 3.14(d) , no Benefit Plan provides any medical, disability or life insurance benefits to any employees of the Business after termination of employment (other than as required by COBRA or other applicable law).

(e)           Neither the Seller nor any ERISA Affiliate has incurred any liability for any material tax imposed under Sections 4971 through 4980G of the Code, or civil liability under Section 502 of ERISA. No “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA has occurred with respect to any Benefit Plan. Every Benefit Plan that is tax-qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service that such plan is qualified, the Internal Revenue Service has not revoked, or threatened to revoke, such determination letter(s), and all amendments to such plans that are required to be adopted as a condition for retention of the plans’ tax-qualified status have been adopted.

(f)           All material levies, assessments or penalties made against Sellers pursuant to all applicable workers compensation legislation as of the date hereof have been paid by Sellers, and Sellers have not been reassessed under any such legislation.

(g)           There are no pending or, to Sellers’ Knowledge, threatened claims by or on behalf of any Benefit Plan, by any employee or beneficiary covered under any such Benefit Plan, or otherwise involving any Benefit Plan (other than routine claims for benefits) that could reasonably be excepted to result in the imposition of any Liability upon Purchasers.

(a)           Except as would not reasonably be expected to have a Material Adverse Effect (i) Sellers are in compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, including the Immigration Reform and Control Act, (ii) all wages and other amounts paid to employees have been properly reported on IRS Forms W-2, (iii) all required wage and employment Taxes have been withheld and remitted to the relevant Taxing authority, and (iv)

all persons classified by Sellers as independent contractors do satisfy and have satisfied the requirements of law to be so classified, and the Sellers have fully and accurately reported their compensation on IRS Forms 1099 when required to do so and have withheld and remitted any required backup withholding amounts.

(b)           Except as disclosed on Schedule 3.15(b) , there are no unfair labor practice charges or other employee-related complaints or claims against Sellers pending or, to Sellers’ Knowledge, threatened before the National Labor Relations Board, the Equal Employment Opportunity Commission, the Occupational Safety and Health Review Commission, the Department of Labor or any other Governmental Entity by or concerning the employees, independent contractors or consultants of Sellers (including claims for compensation, bonus payments or other payments allegedly due under employment agreements), in each case that if decided adversely would reasonably be expected to have a Material Adverse Effect. Except as disclosed on Schedule 3.15(b) , Sellers have not been notified by any Governmental Entity in writing of any alleged violation by Sellers of applicable law that remains unresolved respecting employment, employment practices or terms and conditions of employment.

(c)           Except as set forth on Schedule 3.15(c) , Sellers are not (i) party to any labor or collective bargaining agreement (the “ Collective Bargaining Agreements ”), (ii) currently negotiating any such agreement or (iii) obligated to negotiate any such agreement. As related to the Acquired Assets (x) no labor organization or group of Sellers’ employees has made a pending demand to Sellers for recognition or certification, (y) to the Sellers’ knowledge, there are no existing organization drives with respect to the employees of Sellers and (z) there are and have been no representation or certification proceedings, or petitions seeking a representation proceeding, with the National Labor Relations Board or any other labor relations tribunal or authority, nor have any such demands, proceedings or petitions been brought or were, to Sellers’ Knowledge, threatened to be brought, within the past three (3) years.

(d)           There are no organized strikes, slowdowns or work stoppages pending or, to Sellers’ Knowledge, threatened with respect to Sellers’ employees, nor has any such organized strike, slowdown or work stoppage occurred or, to Sellers’ Knowledge, been threatened within three (3) years prior to the date hereof.

                                             (a)           On the Closing Date, the Purchasers will have sufficient funds available to deliver the cash portion of the Adjusted Base Purchase Price to the Sellers and consummate the transactions contemplated by this Agreement, including the timely satisfaction of the Assumed Liabilities.

(b)           The Purchasers have advised the Sellers that Purchasers have received (i) a commitment letter (the “ Debt Commitment Letter ”), relating to the provision of a senior credit facility (the “ Debt Financing ”) for the purpose of funding the transactions contemplated by this Agreement, and (ii) an equity commitment letter (the “ Equity Commitment Letter ” and together with the Debt Commitment Letter, the “ Financing Commitments Letters ”), pursuant to which and subject to the terms and conditions thereof the investor named therein has committed to invest the amount set forth therein (the “ Equity Financing ” and together with the Debt Financing, the “ Financing ”). The respective commitments contained in the Financing Commitment Letters have not been withdrawn, modified or rescinded in any respect prior to the Effective Date. As of the Effective Date, each of the Financing Commitment Letters is in full force and effect. There are no conditions precedent (including pursuant to any “flex” provisions) related to the Financing, other than as expressly set forth in the Financing Commitment Letters. Subject to the terms and conditions of the Financing Commitment Letters, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitment Letters will be sufficient for the Purchasers to pay the cash portion of the Adjusted Base Purchase Price and to pay all related fees and expenses pursuant hereto and the Ancillary Documents. As of the Effective Date, no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), in each case, on the part of Purchasers under the Financing Commitment Letters or any other party to the Financing Commitment Letters, and the Purchasers do not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to the Purchasers on the Closing Date. The Purchasers have fully paid all commitment fees or other fees required to be paid prior to the Effective Date pursuant to the Financing Commitment Letters.

(a)           Except (x) as expressly provided in this Agreement, including in connection with the Auction, (y) as set forth on Schedule 5.1 or (z) with the prior express written approval of Purchasers, no Seller shall:

(i)       &