Assets of Retail Store Business

Sale of assets of Fairway Group Holdings Corp. which includes:

1. all Inventory of Sellers Related to the Business (other than Excluded Inventory);
2. the Furnishings and Equipment owned by Sellers and Related to the Business (other than Excluded Furnishings and Equipment);
3. the leases set forth on Section 1.1 of the Disclosure Schedule under the heading “Assumed Leases” (the “Assumed Leases”) and (to the extent of Sellers’ interest therein) the buildings, fixtures and improvements located on or attached to such real property, and all rights arising therefrom, and all tenements, hereditaments, appurtenances and other real property rights appertaining thereto, and all rights of Sellers under any agreement (including any subordination, non-disturbance and attornment agreements) with the lessor of an Assumed Lease or its lenders, subject to the rights of the applicable landlord (including rights to ownership or use of such property) under the Assumed Leases;
4. all rights under those Contracts set forth on Section 1.1 of the Disclosure Schedules under the heading “Transferred Contracts” (including a Modified Labor Agreement), other than those Contracts that expire or that are terminated prior to the Closing in accordance with their respective terms (such Contracts, together with the Assumed Leases, the “Transferred Contracts”) and the right to possess or use the property that is the subject of the Transferred Contract; provided, that Sellers shall not reject or terminate any Contract used or held for use exclusively in the operation of the Store without Buyer’s consent from and after the date hereof;
5. to the extent assignable or transferable, all warranties and similar guarantees related to any of the foregoing;
6. to the extent that any Affected Union enters into a Modified Labor Agreement with Buyer, all rights under such Modified Labor Agreement;
7. with respect to each Store, the amount of cash that is in such Store following the close of business on the date which is the date before the Closing, subject to adjustment on a dollar for dollar basis based on the actual amount of cash in such Store as determined on the Inventory Date by the Inventory Taker as set forth in Section 2.6 (the “Per Store Cash Closing Balance”);
8. all Permits of Sellers exclusively Related to the Business, to the extent requested by Buyer and assignable to Buyer under applicable Law (and, for the avoidance of doubt, solely to the extent the applicable Governmental Authority consents to or otherwise approves the assignment or transfer of the applicable Permit) other than those Permits listed on Section 1.1 of the Disclosure Schedule under the heading “Excluded Permits”;
9. all in-store processors, front-end systems, point-of-sale systems (including self-checkout equipment), credit card readers, computers, computer equipment, hardware, software, peripherals, pin pads, direct access storage devices and a flood protection system, in each case, that are exclusively related to the operation of the Business, located at the Stores and owned by Sellers and solely to the extent no information that identifies or could be used to identify an individual person, including “personally identifiable information” as defined by the Bankruptcy Code, 11 U.S.C. §101(41A), (“Personal Information”) is transferred in connection therewith;
10. all email addresses of those customers who (x) expressly indicated that any of the Stores is such customer’s preferred store or (y) expressly provided a zip code and any of the Stores was the closest store operated by the Sellers (the “Store Exclusive Emails”), subject to Section 5.12; provided, however, that notwithstanding anything to the contrary in this Agreement, any transfer of customer data shall be subject to the Bankruptcy Code, and if the Bankruptcy Court requires the appointment of a consumer privacy ombudsman, there shall be no transfer of any Store Exclusive Emails until the Bankruptcy Court permits such transfer; provided, further, that the cost of such ombudsman (if one is appointed) shall be borne soley by Buyer; and
11. all books and records of Sellers exclusively related to operation of the Business, including records relating to payroll, sales, and expenses, the plans, specifications, keys, key cards, passwords, and combinations for the Store and those other items set forth on Section 1.1 of the Disclosure Schedule under the heading “Acquired Assets”;