Conditions Precedent and Subsequent. (a) The willingness of Purchaser to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretion: (i) Entry of the Approval Order shall have occurred no later than April 18, 2018; (ii) All representations and warranties of Merchant hereunder shall be true and correct in all material respects as of the Closing, and Merchant shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and (iii) All of the Parties shall have executed this Agreement. (b) The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Merchant: (i) The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018; (ii) All representations and warranties of Purchaser hereunder shall be true and correct in all material respects as of the Closing, and Purchaser shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and (iii) All of the Parties shall have executed this Agreement.
Appears in 1 contract
Conditions Precedent and Subsequent. (a) The willingness of Purchaser Agent to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretionAgent:
(i) Entry of the Approval Order shall have occurred no later than April 18, 2018;
(ii) All representations and warranties of the Merchant hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the Closingdate hereof and on the Sale Commencement Date;
(ii) No injunction, and Merchant stay or restraining order shall have be in all material respects performed effect prohibiting the obligations and complied with consummation of the covenants required transactions contemplated by this Agreement (including, without limitation, the Sale);
(iii) The Bankruptcy Court shall have entered the Approval Order, in form and substance meeting the standards set forth in Section 2(b), on or before April 6, 2017;
(iv) The Bankruptcy Court shall have entered one or more interim and/or final orders, inter alia, approving Merchant’s use of cash collateral;
(v) All parties to be performed or complied with by it prior to this Agreement (including, without limitation, the ClosingAdministrative Agent, on behalf of itself and the Lenders) shall have executed this Agreement in the space provided therefor; and
(iiivi) All conditions to the obligations of Purchaser and Merchant set forth in ARTICLE VIII and ARTICLE IX, respectively, of the Parties APA shall have executed this Agreementbeen satisfied (or waived in accordance with the APA).
(b) The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by the Merchant:
(i) The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018;
(ii) All representations and warranties of Purchaser Agent hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the Closingdate hereof and on the Sale Commencement Date;
(ii) No injunction, and Purchaser stay or restraining order shall have be in all material respects performed effect prohibiting the obligations and complied with consummation of the covenants required transactions contemplated by this Agreement to be performed or complied with by it prior to (including, without limitation, the ClosingSale);
(iii) The Bankruptcy Court shall have entered the Approval Order; and
(iiiiv) All parties to this Agreement (including, without limitation, the Administrative Agent, on behalf of itself and the Parties Lenders) shall have executed this AgreementAgreement in the space provided therefor.
Appears in 1 contract
Conditions Precedent and Subsequent. (a) The willingness of Purchaser Agent to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretionAgent:
(i) Entry of the Approval Order shall have occurred no later than April 18, 2018;
(ii) All representations and warranties of Merchant hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the Closing, date hereof and Merchant shall have in all material respects performed on the obligations and complied with the covenants required by Sale Commencement Date.
(ii) Xxxxxx has executed this Agreement to be performed or complied (with by it prior to the Closing; andall Exhibits attached hereto).
(iii) All of the Parties The Bankruptcy Court shall have executed this entered the Approval Order, and shall have approved/assumed the Existing Agreement, by November 10, 2011 or such later date as mutually agreed upon by the Merchant and the Agent (the “Approval Order Deadline”).
(b) The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by MerchantXxxxxxxx:
(i) The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018;
(ii) All representations and warranties of Purchaser Agent hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the Closing, date hereof and Purchaser shall have in all material respects performed on the obligations and complied with the covenants required by Sale Commencement Date.
(ii) Xxxxxx has executed this Agreement to be performed or complied (with by it prior all Exhibits attached hereto), subject to the Closing; and
(iii) All of the Parties shall have executed this AgreementApproval Order.
Appears in 1 contract
Samples: Second Agency Agreement
Conditions Precedent and Subsequent. (a) The willingness of Purchaser to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned This Amendment shall become effective only upon the satisfaction in full, in a manner satisfactory to Agent and Required Lenders, of the following conditions at precedent (the time or during first date upon which all such conditions have been satisfied being herein called the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretion:"Effective Date"):
(ia) Entry of the Approval Order Agent and each Lender party hereto shall have occurred no later than April 18received a copy of this Amendment executed and delivered by Agent, 2018Required Lenders and Borrower;
(iib) All corporate and other proceedings, and all documents instruments and other legal matters in connection with the transactions contemplated by each of this Amendment shall be satisfactory in form and substance to Agent and its counsel.
(c) After giving effect to this Amendment, the representations and warranties of Merchant hereunder made by Borrower contained herein and by each Loan Party in the Credit Agreement and the other Loan Documents, shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the Closingdate hereof, and Merchant shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and
(iii) All of the Parties shall have executed this Agreement.
(b) The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Merchant:
(i) The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018;
(ii) All as if those representations and warranties of Purchaser hereunder were made for the first time on such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date);
(d) After giving effect to this Amendment, each Loan Party is in compliance with all applicable covenants and agreements contained in the Closing, Credit Agreement and Purchaser shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closingother Loan Documents; and
(iiie) All After giving effect to this Amendment, no Default or Event of Default shall exist under any of the Parties shall have executed Loan Documents, and no Default or Event of Default will result under any of the Loan Documents from the execution, delivery or performance of this AgreementAmendment.
Appears in 1 contract
Conditions Precedent and Subsequent. (a) The willingness of Purchaser to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned This Amendment shall become effective only upon the satisfaction in full, in a manner satisfactory to Agent and Required Lenders, of the following conditions at precedent (the time or during first date upon which all such conditions have been satisfied being herein called the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretion:"Effective Date"):
(ia) Entry of the Approval Order Agent and each Lender party hereto shall have occurred no later than April 18received a copy of this Amendment executed and delivered by Agent, 2018Required Lenders and Borrower;
(iib) All corporate and other proceedings, and all documents instruments and other legal matters in connection with the transactions contemplated by each of this Amendment shall be satisfactory in form and substance to Agent and its counsel.
(c) After giving effect to this Amendment, the representations and warranties of Merchant hereunder made by Borrower contained herein and by each Loan Party in the Credit Agreement and the other Loan Documents, shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the Closingdate hereof, and Merchant shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and
(iii) All of the Parties shall have executed this Agreement.
(b) The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Merchant:
(i) The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018;
(ii) All as if those representations and warranties of Purchaser hereunder were made for the first time on such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date); provided that no representations and warranties are made with respect to certain Events of Default that may exist and are currently under discussion among Borrower and Agent;
(d) After giving effect to this Amendment, each Loan Party is in compliance with all applicable covenants and agreements contained in the Closing, Credit Agreement and Purchaser shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closingother Loan Documents; and
(iiie) All After giving effect to this Amendment, no Default or Event of Default shall exist under any of the Parties shall have executed Loan Documents (other than the representations and warranties that are made with respect to certain Events of Default that may exist and are currently under discussion among Borrower and Agent), and no Default or Event of Default will result under any of the Loan Documents from the execution, delivery or performance of this AgreementAmendment.
Appears in 1 contract
Conditions Precedent and Subsequent. (a) The willingness of Purchaser Agent to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretionAgent:
(i) Entry of the Approval Order shall have occurred no later than April 18, 2018;
(ii1) All representations and warranties of the Merchant and Buyer hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the Closing, date hereof and Merchant shall have in all material respects performed on the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and
(iii) All of the Parties shall have executed this AgreementSale Commencement Date.
(b2) The willingness No later than September 15, 2016 (or September 22, 2016 in the event that the proviso in Section 8.1(b)(ii) of Merchant to enter into the transactions contemplated under this AgreementAPA is applicable) or such later date as mutually agreed upon by the Merchant, Buyer, DIP Agent, Pre-Petition Term Agent, and the occurrence Agent (provided that the consent of the ClosingDIP Agent and the Pre-Petition Term Agent will not be required to extend such date to September 22, are directly conditioned upon 2016 or earlier) (such date, the satisfaction of “Approval Order Deadline”), the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Merchant:
(i) The Bankruptcy Court shall have entered an order (the “Approval Order”) in a form reasonably satisfactory to Buyer, Merchant, Agent, Pre-Petition Term Agent, and DIP Agent that authorizes Buyer, Merchant, and Agent to enter into this Agreement and authorizes Merchant to conduct the Sale in accordance with the terms of this Agreement and provides, inter alia, that subject to the Closing and the repayment in full and in cash of all DIP Obligations owed to the DIP Lenders at Closing, (i) this Agreement is in the best interest of the Merchant, Merchant’s estates, creditors, and other parties in interest, (ii) this Agreement (and each of the transactions contemplated hereby) is approved in its entirety; (iii) Merchant, the Buyer, and Agent shall be authorized to continue to take any and all actions deemed necessary or desirable to implement this Agreement and each of the transactions contemplated hereby; (iv) upon payment of the Estimated Purchase Price, Agent shall be entitled to sell all Merchandise, Inventory under Open Purchase Orders and Designated F&E hereunder free and clear of all liens, claims or encumbrances thereon; (v) Agent shall have the right to use the Stores and all related Store services, furniture, fixtures, equipment and other assets of the Merchant or Buyer, as applicable, as designated hereunder for the purpose of conducting the Sale, free of any interference from any entity or person, subject to compliance with the Sale Guidelines (as defined below) and Approval Order; (vi) Agent, as agent for Merchant and Buyer, is authorized to conduct, advertise, post signs, utilize signwalkers, and otherwise promote the Sale consistent with the Closing Store Advertising and Continuing Store Advertising, in accordance with the Sale Guidelines (as the same may be modified and approved by the Bankruptcy Court) and without further compliance with the Liquidation Sale Laws (as defined below), subject to compliance with the Sale Guidelines and Approval Order; (vii) Agent shall be granted a limited, non-exclusive license and right to use until the Sale Termination Date all Intellectual Property in connection with the Sale; (viii) all newspapers and other advertising media in which the Sale is advertised shall be directed to accept the Approval Order no later as binding and to allow Merchant, the Buyer, and Agent to consummate the transactions provided for in this Agreement, including, without limitation, the conducting and advertising of the Sale in the manner contemplated by this Agreement; (ix) all utilities, landlords, creditors and other interested parties and all persons acting for or on their behalf shall not interfere with or otherwise impede the conduct of the Sale, or institute any action in any court (other than April 18in the Bankruptcy Court) with respect to Merchandise, 2018;
Inventory under Open Purchase Orders or the Designated F&E or before any administrative body which in any way directly or indirectly interferes with or obstructs or impedes the conduct of the Sale; (iix) All representations and warranties of Purchaser hereunder the Bankruptcy Court shall retain jurisdiction over the parties to enforce this Agreement; (xi) Agent shall not be liable for any claims against Merchant or Buyer other than as expressly provided for in this Agreement; (xii) subject to Agent having satisfied its payment obligations hereunder, any amounts owed by Merchant to Agent under this Agreement shall be true and correct granted the status of superpriority claims in Merchant’s Bankruptcy Case pursuant to section 364(c) of Xxxxx 00, Xxxxxx Xxxxxx Code, 11 U.S.C. §§ 101-1330 (the “Bankruptcy Code”) senior to all material respects as of the Closing, and Purchaser shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and
(iii) All of the Parties shall have executed this Agreement.other superpriority claims;
Appears in 1 contract
Samples: Agency Agreement
Conditions Precedent and Subsequent. (a) The willingness of Purchaser Agent to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretionAgent:
(i) Entry of the Approval Order shall have occurred no later than April 18, 2018;
(ii1) All representations and warranties of the Merchant and Buyer hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the date hereof and on the Sale Commencement Date.
(2) No later than September 15, 2016 (or September 22, 2016 in the event that the proviso in Section 8.1(b)(ii) of the APA is applicable) or such later date as mutually agreed upon by the Merchant, Buyer, DIP Agent, Pre-Petition Term Agent, and the Agent (such date, the “Approval Order Deadline”), the Bankruptcy Court shall have entered an order (the “Approval Order”) in a form reasonably satisfactory to Buyer, Merchant, Agent, Pre-Petition Term Agent, and DIP Agent that authorizes Buyer, Merchant, and Agent to enter into this Agreement and authorizes Merchant to conduct the Sale in accordance with the terms of this Agreement and provides, inter alia, that subject to the Closing and the repayment in full and in cash of all DIP Obligations owed to the DIP Lenders at Closing, (i) this Agreement is in the best interest of the Merchant, Merchant’s estates, creditors, and Merchant other parties in interest, (ii) this Agreement (and each of the transactions contemplated hereby) is approved in its entirety; (iii) Merchant, the Buyer, and Agent shall be authorized to continue to take any and all actions deemed necessary or desirable to implement this Agreement and each of the transactions contemplated hereby; (iv) upon payment of the Estimated Purchase Price, Agent shall be entitled to sell all Merchandise, Inventory under Open Purchase Orders and Designated F&E hereunder free and clear of all liens, claims or encumbrances thereon; (v) Agent shall have the right to use the Stores and all related Store services, furniture, fixtures, equipment and other assets of the Merchant or Buyer, as applicable, as designated hereunder for the purpose of conducting the Sale, free of any interference from any entity or person, subject to compliance with the Sale Guidelines (as defined below) and Approval Order; (vi) Agent, as agent for Merchant and Buyer, is authorized to conduct, advertise, post signs, utilize signwalkers, and otherwise promote the Sale consistent with the Closing Store Advertising and Continuing Store Advertising, in accordance with the Sale Guidelines (as the same may be modified and approved by the Bankruptcy Court) and without further compliance with the Liquidation Sale Laws (as defined below), subject to compliance with the Sale Guidelines and Approval Order; (vii) Agent shall be granted a limited, non-exclusive license and right to use until the Sale Termination Date all material respects performed Intellectual Property in connection with the Sale; (viii) all newspapers and other advertising media in which the Sale is advertised shall be directed to accept the Approval Order as binding and to allow Merchant, the Buyer, and Agent to consummate the transactions provided for in this Agreement, including, without limitation, the conducting and advertising of the Sale in the manner contemplated by this Agreement; (ix) all utilities, landlords, creditors and other interested parties and all persons acting for or on their behalf shall not interfere with or otherwise impede the conduct of the Sale, or institute any action in any court (other than in the Bankruptcy Court) with respect to Merchandise, Inventory under Open Purchase Orders or the Designated F&E or before any administrative body which in any way directly or indirectly interferes with or obstructs or impedes the conduct of the Sale; (x) the Bankruptcy Court shall retain jurisdiction over the parties to enforce this Agreement; (xi) Agent shall not be liable for any claims against Merchant or Buyer other than as expressly provided for in this Agreement; (xii) subject to Agent having satisfied its payment obligations hereunder, any amounts owed by Merchant to Agent under this Agreement shall be granted the status of superpriority claims in Merchant’s Bankruptcy Case pursuant to section 364(c) of Xxxxx 00, Xxxxxx Xxxxxx Code, 11 U.S.C. §§ 101-1330 (the “Bankruptcy Code”) senior to all other superpriority claims; (xiii) Agent shall be granted a valid, binding, enforceable and perfected security interest for the obligations of Merchant as provided for in Section 16 hereof (without the necessity of filing financing statements to perfect the security interests); (xiv) the Bankruptcy Court finds that time is of the essence in effectuating this Agreement and complied proceeding with the covenants Sale uninterrupted; (xv) the Bankruptcy Court finds that the Merchant’s decisions to (a) enter into this Agreement and (b) perform under and make payments required by this Agreement to be performed or complied is a reasonable exercise of the Merchant’s sound business judgment consistent with by it prior its fiduciary duties and is in the best interests of the Merchant, its estate, its creditors, and other parties in interest; (xvi) the Bankruptcy Court finds that this Agreement was negotiated in good faith and at arms' length between the Merchant, Buyer, and Agent and that Agent is entitled to the Closing; and
(iiiprotection of section 363(m) All of the Parties Bankruptcy Code; (xvii) the Bankruptcy Court finds that Agent's performance under this Agreement will be in good faith and for valid business purposes and uses, as a consequence of which Agent is entitled to the protection and benefits of sections 363(m) and 364(e) of the Bankruptcy Code; (xviii) this Agreement is approved pursuant to Bankruptcy Code section 363; and (xix) in the event any of the provisions of the Approval Order are modified, amended or vacated by a subsequent order of the Bankruptcy Court or any other court, Agent shall have executed be entitled to the protections provided in Bankruptcy Code sections 363(m) and 364(e) and, no such appeal, modification, amendment or vacatur shall affect the validity and enforceability of the sale or the liens or priority authorized or created under this AgreementAgreement or the Approval Order.
(b) The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are Agreement is directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by the Merchant:
(i) The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018;
(ii1) All representations and warranties of Purchaser Agent and Buyer hereunder shall be true and correct in all material respects and no Event of Default shall have occurred at and as of the Closing, date hereof and Purchaser shall have in all material respects performed on the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and
(iii) All of the Parties shall have executed this AgreementSale Commencement Date.
Appears in 1 contract
Samples: Agency Agreement (Aeropostale Inc)
