Representations, Warranties and Covenants of the Debtors. Edison Brothers Stores, Inc., for itself and on behalf of its Debtor subsidiaries, and each Debtor subsidiary for itself, hereby represents, warrants and covenants as follows: 5.1 Each of the Debtors is a corporation, duly organized, validly existing and in good standing in the state of its incorporation and is qualified to do business in each of the states where the failure to so qualify would have a material adverse effect on the Debtors ability to perform hereunder. 5.2 The Debtors have taken all necessary action required to authorize the execution, performance and delivery of this Agreement and to consummate the transaction contemplated hereby, except for receipt of approval of the Bankruptcy Court. 5.3 Edison Brothers Stores, Inc., in its capacity as debtor and debtor in possession, is authorized to execute and deliver this Agreement on behalf of each of its debtor subsidiaries listed in Exhibit "A" hereto. 5.4 No contract or other agreement to which any of the Debtors is a party or by which any of the Debtors is otherwise bound (other than the Lease Documents and loan documents and except as provided by the Bankruptcy Court) will prevent or impair consummation of the transaction contemplated by this Agreement. 5.5 The Debtors, as of the Closing Date, shall have good and marketable title to the Merchandise Inventoried Goods, and if ordered by the Bankruptcy Court, free and clear of all liens, mortgages, pledges, charges, encumbrances, equities or claims of whatever nature, and, to the best of their knowledge, they are not aware of any Merchandise not being in compliance with all applicable consumer product safety rules or other applicable federal, state or local product safety standards or rules. The Debtors will provide JNA with its policies and practices regarding product recalls prior to the Inventory Commencement Date. 5.6 The Debtors have operated and will continue to operate their businesses at the Stores up through and including the Sale Commencement Date in the normal and ordinary course, employing all practices, policies (including, but not limited to, pricing practices and policies), procedures and operations in substantially the same manner as theretofore conducted by the Debtors. Without limiting any of the foregoing, (i) the Debtors shall not raise any prices of the Merchandise other than in the ordinary course of business and shall continue to ship Merchandise into the Stores in the ordinary course of business up to the Sale Commencement Date, (ii) the Debtors have not accelerated or otherwise increased any promotional markdowns with respect to the Merchandise at the Stores from that which was in effect on Friday, November 10, 1995 and shall not accelerate any such markdowns during the period through and including the Inventory Commencement Date and (iii) the Debtors have taken, prior to the Inventory Commencement Date, with respect to the Merchandise at the Stores all appropriate markdowns as is consistent with its normal and ordinary course pricing practices and policies and have not raised the Retail Prices of any of such Merchandise other than in the ordinary course of business nor pur- chased or transferred any Merchandise or goods outside of the ordinary course in anticipation of the taking of the Inventory pursuant to Section 3 or the execution of this Agreement. 5.7 The Debtors shall maintain in good working order, at their sole expense, the cash registers, heating systems, air conditioning systems, elevators, escalators, Store alarm systems, and all other mechanical devices used in the ordinary course of operation of the Stores up through and including the Sale Termination Date. 5.8 This Agreement is the valid and binding obligation of the Debtors and is enforceable in accordance with its terms, subject to obtaining approval by the Bankruptcy Court. 5.9 Subject to the Debtors' right as debtor in possession under sections 1107(a), 1108 and 365 of the Bankruptcy Code, all of the Lease Instruments are in full force and effect and, in accordance with the Approval Order referred to in clause (v) of Subsection 12.1, the Debtors are entitled to occupy and utilize the Stores thereunder through the applicable Sale Termination Date. Without limitation on any of the foregoing and in accordance with the Approval Order, the Debtors represent and warrant that they will not (i) interfere or otherwise disrupt JNA's right to access and use of the Stores through the applicable Sale Termination Date, or (ii) fail to take any action required by the Lease Instruments that may cause another person to disrupt JNA's right to access and use of the Stores to conduct the Sale. 5.10 The Debtors covenant and agree that subsequent to the Sale Commencement Date they will not pledge, assign, lien, encumber, charge or otherwise transfer any interest in the Merchandise without the prior written consent of JNA. 5.11 The Debtors have no collective bargaining agreements with their employees, nor are any of their employees represented by labor unions. 5.12 No representation made by the Debtors in this Agreement contains any untrue statement of material fact or omits to state a material fact which makes such representation misleading.
Appears in 1 contract
Representations, Warranties and Covenants of the Debtors. Edison Brothers Stores, Inc., for itself and on behalf of its Debtor subsidiaries, and each Debtor subsidiary for itself, hereby represents, warrants and covenants as follows:
5.1 Each of the Debtors is a corporationhereby represents and warrants to, duly organizedand covenants with, validly existing the Purchasers and the Secured Party that:
(a) All information supplied and statements made by such Debtor in good standing in any financial, credit or accounting statement or provided to the state of its incorporation and is qualified Purchasers and/or the Secured Party prior to, contemporaneously with or subsequent to do business in each of the states where the failure to so qualify would have a material adverse effect on the Debtors ability to perform hereunder.
5.2 The Debtors have taken all necessary action required to authorize the execution, performance and delivery execution of this Agreement are and to consummate the transaction contemplated herebyshall be true, except for receipt of approval of the Bankruptcy Court.
5.3 Edison Brothers Storescorrect, Inc.complete, valid and genuine in its capacity as debtor and debtor in possession, is authorized to execute and deliver this Agreement on behalf of each of its debtor subsidiaries listed in Exhibit "A" hereto.
5.4 No contract or other agreement to which any of the Debtors is a party or by which any of the Debtors is otherwise bound (other than the Lease Documents and loan documents and except as provided by the Bankruptcy Court) will prevent or impair consummation of the transaction contemplated by this Agreement.
5.5 The Debtors, all material respects as of the Closing Date, shall have good and marketable title to the Merchandise Inventoried Goods, and if ordered by the Bankruptcy Court, free and clear of all liens, mortgages, pledges, charges, encumbrances, equities or claims of whatever nature, and, to the best of their knowledge, they are not aware of any Merchandise not being in compliance with all applicable consumer product safety rules or other applicable federal, state or local product safety standards or rules. The Debtors will provide JNA with its policies and practices regarding product recalls prior to the Inventory Commencement Datedate made.
5.6 The Debtors have operated (b) Subject to Section 8 hereof and will continue to operate their businesses at the Stores up through and including the Sale Commencement Date as otherwise set forth in the normal and ordinary coursePledge Agreement, employing the Collateral shall remain in such Debtor's possession or control at all practices, policies (including, but not limited to, pricing practices and policies), procedures and operations in substantially the same manner as theretofore conducted by the Debtors. Without limiting any times at such Debtor's risk of the foregoing, loss until (i) the Debtors shall not raise any prices sold, licensed or otherwise disposed of the Merchandise other than in the ordinary course of business or as otherwise contemplated by the Purchase Agreement and Note, provided that the Secured Party shall continue be granted a security interest in the proceeds and other consideration received for such Collateral in accordance with Section 2 hereof, or (ii) as authorized in writing by the Secured Party.
(c) Subject to ship Merchandise into Section 8 hereof, until an Event of Default, such Debtor may use the Stores Collateral in any lawful manner not inconsistent with this Agreement or with the terms or conditions of any policy of insurance thereon and may also sell, license or otherwise dispose of the Collateral in the ordinary course of business up or as otherwise contemplated by the Purchase Agreement and Note. The Secured Party's security interest shall attach to all proceeds of sales, licenses and other dispositions of the Collateral in accordance with Section 2 hereof.
(d) Such Debtor shall promptly notify the Secured Party in writing of any change in the location of its chief executive office and principal place of business as set forth in the introduction to this Agreement.
(e) Such Debtor shall pay prior to delinquency all material taxes, charges, liens and assessments against the Collateral, except those that such Debtor is contesting in good faith and for which adequate accruals have been made, and upon such Debtor's failure to do so after ten (10) days' prior written notice, the Secured Party at its option may pay any of them and shall be the sole judge of the legality or validity thereof and the amount necessary to discharge the same. Such payment shall become part of the Obligations secured by this Agreement and shall be paid to the Sale Commencement DatePurchasers by such Debtor immediately and without demand, with interest thereon at the rate set forth in Section 3(c) hereof.
(iif) the Debtors Such Debtor shall have not accelerated or otherwise increased any promotional markdowns and maintain insurance at all times with respect to all Collateral against risks of fire, theft and such other risks as is reasonable for its business and as the Merchandise at Secured Party may reasonably require (but in no event shall such Debtor be obligated to insure such Collateral in an amount greater than the Stores from that which was in effect on Fridayreplacement value thereof), November including extended coverage. Within ten (10) days after the date hereof, 1995 and such Debtor shall not accelerate amend such insurance policies to contain a standard mortgagee's endorsement providing for payment of any such markdowns during the period through and including the Inventory Commencement Date and (iii) the Debtors have taken, prior loss to the Inventory Commencement DateSecured Party and to provide for twenty (20) days' written minimum cancellation notice to the Secured Party. Following an Event of Default, subject to the provisions of Section 7 hereof, the Secured Party may act as attorney for such Debtor in obtaining, adjusting, settling and canceling such insurance and endorsing any drafts drawn by insurers of the Collateral. The Secured Party may apply any proceeds of such insurance which may be received by it in payment on account of the obligations secured hereby, whether due or not.
(g) Such Debtor shall, at its own expense, do, make, procure, execute and deliver all acts, things, writings and assurances as the Secured Party may at any time reasonably request to protect, assure or enforce its interests, rights and remedies created by, provided in or emanating from this Agreement, including with respect to filings with the Merchandise at Patent and Trademark Office. Such Debtor shall execute financing statements and take whatever other actions are reasonably requested by the Stores Secured Party to perfect and continue the Secured Party's security interests in the Collateral. In addition, such Debtor shall use its best efforts to take all appropriate markdowns as is consistent action (including but not limited to all appropriate action requested by the Secured Party) to perfect the Secured Party's security interest for any liens which may not be perfected by the filing of a Form UCC-1 (including but not limited to filings with its normal the U.S. Patent and ordinary course pricing practices Trademark Office). Prior to an Event of Default and policies upon the reasonable request of the Secured Party for purposes of perfection only, such Debtor shall deliver to the Secured Party any and have not raised all of the Retail Prices of documents evidencing or constituting the Collateral, and such Debtor shall note the Secured Party's interests upon any and all of such Merchandise documents if not delivered to the Secured Party for possession by it. Further, such Debtor hereby agrees not to take any action or, to its knowledge, omit to any action, that would cause the security interests granted hereby to be or become unperfected. Upon the occurrence and during the continuance of an Event of Default and upon the reasonable request of the Secured Party for purposes of enforcing the Secured Party's rights hereunder, such Debtor shall deliver to the Secured Party any and all of the documents evidencing or constituting the Collateral. Such Debtor hereby agrees that a carbon, photographic, photostatic or other than reproduction of this Agreement or of a financing statement is sufficient as a financing statement where permitted by law.
(h) Except in the ordinary course of business nor pur- chased business, as provided for in this Agreement, the Purchase Agreement or transferred any Merchandise the Note or goods outside as otherwise authorized by the Secured Party in writing by a Majority Vote (as defined in Section 9 hereof), such Debtor shall not sell, lend, license, rent, lease or otherwise dispose of the ordinary course Collateral or any interest therein, and such Debtor shall keep the Collateral, including the proceeds thereof, free from unpaid charges, including taxes, and from liens, encumbrances and security interests other than the security interests created by this Agreement in anticipation favor of the taking Secured Party (and Permitted Liens) .
(i) Such Debtor shall keep accurate and complete records of the Inventory pursuant Collateral and its proceeds.
(j) Such Debtor has good and valid rights in and title to Section 3 or the execution Collateral and has the full power and authority to grant to the Secured Party the security interests in the Collateral created by this Agreement and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other person other than any consent or approval that has been obtained.
5.7 The (k) Except as set forth on Schedule 4(k) hereof, such Debtor is the owner of the Collateral free of all liens, claims and encumbrances, except (i) the security interest created by this Security Agreement and granted in favor of the Secured Party and (ii) the Permitted Liens.
(l) Except as set forth on Schedule 4(l), with respect to any and all Collateral, such Debtor has not obtained and is not in the process of applying for any patents, trademarks or copyrights in the United States Copyright Office, the Patent and Trademark Office (or other foreign jurisdictions related to such filings). Such Debtor shall notify the Secured Party at least thirty (30) days prior to the filing of any initial patent, trademark or copyright applications with respect to the Collateral and will provide the Secured Party with all information necessary to assist the Secured Party in perfecting its security interest in the Collateral prior to the filing of any patent, copyright or trademark applications.
(m) Such Debtor agrees that the Secured Party holds the Collateral as agent for the Purchasers, and is hereby authorized to and may turn over to the Purchasers upon request therefor any such Collateral after all obligations and indebtedness of Debtors to the Secured Party have been fully paid and performed. Notwithstanding the foregoing, the Debtors hereby acknowledge and agree that in terms of payments in respect of the Notes and from the proceeds of any Collateral, each Purchaser shall be treated ratably in accordance with its pro rata share of the Notes based upon the ratio of the then outstanding principal amount of Purchaser's Note to the outstanding principal balance of all of the Notes ("Pro Rata Share") and the Debtors shall maintain execute and deliver such additional documents and take such additional action as may be necessary or desirable in good working orderthe reasonable opinion of the Secured Party to effectuate the provisions and purposes of the provisions of Section 7 hereof.
(n) As to that portion of the Collateral which is accounts, at their such Debtor represents, warrants and agrees with respect to each such account that:
(i) The account arose from the performance of services by such Debtor which have been performed or from the lease or the absolute sale of goods or provision of services by such Debtor in which such Debtor had the sole expenseand complete ownership, and the goods or services have been delivered or provided to, as the case may be, the cash registersaccount debtor.
(ii) The account is not subject to any prior or subsequent assignment, heating systemsclaim, air conditioning systems, elevators, escalators, Store alarm systems, lien or security interest other than (i) the security interest created by this Security Agreement and all other mechanical devices used granted in favor of the Secured Party and (ii) the Permitted Liens.
(iii) The account arose in the ordinary course of operation such Debtor's business, and no notice of bankruptcy, insolvency or financial embarrassment of the Stores up through and including the Sale Termination Dateaccount debtor has been received by such Debtor.
5.8 This Agreement is (o) The assets listed on the valid Disclosure Letter attached hereto are not used primarily in the SRM Business.
(p) Upon the occurrence of an Event of Default, and binding obligation upon the request of the Debtors and is enforceable in accordance with its terms, subject to obtaining approval by the Bankruptcy Court.
5.9 Subject to the Debtors' right as debtor in possession under sections 1107(a), 1108 and 365 of the Bankruptcy Code, all of the Lease Instruments are in full force and effect and, in accordance with the Approval Order referred to in clause (v) of Subsection 12.1Secured Party, the Debtors are entitled to occupy and utilize shall use their best efforts (with the Stores thereunder through the applicable Sale Termination Date. Without limitation on any cooperation of the foregoing Secured Party) to obtain the consent of eScout LLC and in accordance with eScout Acquisitions LLC to transfer the Approval Order, the Debtors represent and warrant that they will not (i) interfere or otherwise disrupt JNA's right to access and use of the Stores through the applicable Sale Termination Date, or (ii) fail to take any action required by the Lease Instruments that may cause another person to disrupt JNA's right to access and use of the Stores to conduct the Sale.
5.10 The Debtors covenant and agree that subsequent Perfect Commerce Note to the Sale Commencement Date they will not pledge, assign, lien, encumber, charge or otherwise transfer any interest in the Merchandise without the prior written consent of JNASecured Party.
5.11 The Debtors have no collective bargaining agreements with their employees, nor are any of their employees represented by labor unions.
5.12 No representation made by the Debtors in this Agreement contains any untrue statement of material fact or omits to state a material fact which makes such representation misleading.
Appears in 1 contract
Representations, Warranties and Covenants of the Debtors. Edison Brothers Stores, Inc., for itself and on behalf of its Debtor subsidiaries, and each Debtor subsidiary for itself, hereby represents, warrants and covenants as follows:
5.1 A. Each of the Debtors is a corporation, duly organized, validly existing and in good standing in the state of its incorporation and is qualified to do business in each of the states where the failure to so qualify would have a material adverse effect on the Debtors ability to perform hereunder.
5.2 B. The Debtors have taken all necessary action required to authorize the execution, performance and delivery of this Agreement and to consummate the transaction contemplated hereby, except for receipt of approval of the Bankruptcy Court.
5.3 Edison X. Xxxxxx Brothers Stores, Inc., in its capacity as debtor and debtor in possession, is authorized to execute and deliver this Agreement on behalf of each of its debtor subsidiaries listed in Exhibit "A" hereto.
5.4 D. No contract or other agreement to which any of the Debtors is a party or by which any of the Debtors is otherwise bound (other than the Lease Documents and loan documents and except as provided by the Bankruptcy Court) will prevent or impair consummation of the transaction contemplated by this Agreement.
5.5 E. The Debtors, as of the Closing Date, shall have good and marketable title to the Merchandise Inventoried Goods, and if ordered by the Bankruptcy Court, free and clear of all liens, mortgages, pledges, charges, encumbrances, equities or claims of whatever nature, and, to the best of their knowledge, they are not aware of any Merchandise not being in compliance with all applicable consumer product safety rules or other applicable federal, state or local product safety standards or rules. The Debtors will provide JNA with its policies and practices regarding product recalls prior to the Inventory Commencement Date.
5.6 F. The Debtors have operated and will continue to operate their businesses at the Stores up through and including the Sale Commencement Date in the normal and ordinary course, employing all practices, policies (including, but not limited to, pricing practices and policies), procedures and operations in substantially the same manner as theretofore conducted by the Debtors. Without limiting any of the foregoing, (i) the Debtors shall not raise any prices of the Merchandise other than in the ordinary course of business and shall continue to ship Merchandise into the Stores in the ordinary course of business up to the Sale Commencement Date, (ii) the Debtors have not accelerated or otherwise increased any promotional markdowns with respect to the Merchandise at the Stores from that which was in effect on Friday, November 10, 1995 and shall not accelerate any such markdowns during the period through and including the Inventory Commencement Date and (iii) the Debtors have taken, prior to the Inventory Commencement Date, with respect to the Merchandise at the Stores all appropriate markdowns as is consistent consis- tent with its normal and ordinary course pricing practices and policies and have not raised the Retail Prices of any of such Merchandise other than in the ordinary course of business nor pur- chased purchased or transferred any Merchandise or goods outside of the ordinary course in anticipation of the taking of the Inventory pursuant to Section 3 or the execution of this Agreement.
5.7 G. The Debtors shall maintain in good working order, at their sole expense, the cash registers, heating systems, air conditioning systems, elevators, escalators, Store alarm systems, and all other mechanical devices used in the ordinary course of operation of the Stores up through and including the Sale Termination Date.
5.8 H. This Agreement is the valid and binding obligation of the Debtors and is enforceable in accordance with its terms, subject to obtaining approval by the Bankruptcy Court.
5.9 I. Subject to the Debtors' right as debtor in possession under sections 1107(a), 1108 and 365 of the Bankruptcy Code, all of the Lease Instruments are in full force and effect and, in accordance with the Approval Order referred to in clause (v) of Subsection 12.1, the Debtors are entitled to occupy and utilize the Stores thereunder through the applicable Sale Termination Date. Without limitation on any of the foregoing and in accordance with the Approval Order, the Debtors represent and warrant that they will not (i) interfere or otherwise disrupt JNA's right to access and use of the Stores through the applicable Sale Termination Date, or (ii) fail to take any action required by the Lease Instruments that may cause another person to disrupt JNA's right to access and use of the Stores to conduct the Sale.
5.10 J. The Debtors covenant and agree that subsequent to the Sale Commencement Date they will not pledge, assign, lien, encumber, charge or otherwise transfer any interest in the Merchandise without the prior written consent of JNA.
5.11 K. The Debtors have no collective bargaining agreements with their employees, nor are any of their employees represented by labor unions.
5.12 L. No representation made by the Debtors in this Agreement contains any untrue statement of material fact or omits to state a material fact which makes such representation misleading.
Appears in 1 contract
Representations, Warranties and Covenants of the Debtors. Edison Brothers Stores, Inc., for itself and on behalf of its Debtor subsidiaries, and each Debtor subsidiary for itself, hereby represents, warrants and covenants as follows:
5.1 Each of the Debtors is a corporationhereby represents and warrants to, duly organizedand covenants with, validly existing the Purchasers and the Secured Party that:
(a) All information supplied and statements made by such Debtor in good standing in any financial, credit or accounting statement or provided to the state of its incorporation and is qualified Purchasers and/or the Secured Party prior to, contemporaneously with or subsequent to do business in each of the states where the failure to so qualify would have a material adverse effect on the Debtors ability to perform hereunder.
5.2 The Debtors have taken all necessary action required to authorize the execution, performance and delivery execution of this Agreement are and to consummate the transaction contemplated herebyshall be true, except for receipt of approval of the Bankruptcy Court.
5.3 Edison Brothers Storescorrect, Inc.complete, valid and genuine in its capacity as debtor and debtor in possession, is authorized to execute and deliver this Agreement on behalf of each of its debtor subsidiaries listed in Exhibit "A" hereto.
5.4 No contract or other agreement to which any of the Debtors is a party or by which any of the Debtors is otherwise bound (other than the Lease Documents and loan documents and except as provided by the Bankruptcy Court) will prevent or impair consummation of the transaction contemplated by this Agreement.
5.5 The Debtors, all material respects as of the Closing Date, shall have good and marketable title to the Merchandise Inventoried Goods, and if ordered by the Bankruptcy Court, free and clear of all liens, mortgages, pledges, charges, encumbrances, equities or claims of whatever nature, and, to the best of their knowledge, they are not aware of any Merchandise not being in compliance with all applicable consumer product safety rules or other applicable federal, state or local product safety standards or rules. The Debtors will provide JNA with its policies and practices regarding product recalls prior to the Inventory Commencement Datedate made.
5.6 The Debtors have operated (b) Subject to Section 8 hereof and will continue to operate their businesses at the Stores up through and including the Sale Commencement Date as otherwise set forth in the normal and ordinary coursePledge Agreement, employing the Collateral shall remain in such Debtor's possession or control at all practices, policies (including, but not limited to, pricing practices and policies), procedures and operations in substantially the same manner as theretofore conducted by the Debtors. Without limiting any times at such Debtor's risk of the foregoing, loss until (i) the Debtors shall not raise any prices sold, licensed or otherwise disposed of the Merchandise other than in the ordinary course of business or as otherwise contemplated by the Purchase Agreement and Note, provided that the Secured Party shall continue be granted a security interest in the proceeds and other consideration received for such Collateral in accordance with Section 2 hereof, or (ii) as authorized in writing by the Secured Party.
(c) Subject to ship Merchandise into Section 8 hereof, until an Event of Default, such Debtor may use the Stores Collateral in any lawful manner not inconsistent with this Agreement or with the terms or conditions of any policy of insurance thereon and may also sell, license or otherwise dispose of the Collateral in the ordinary course of business up or as otherwise contemplated by the Purchase Agreement and Note. The Secured Party's security interest shall attach to all proceeds of sales, licenses and other dispositions of the Collateral in accordance with Section 2 hereof.
(d) Such Debtor shall promptly notify the Secured Party in writing of any change in the location of its chief executive office and principal place of business as set forth in the introduction to this Agreement.
(e) Such Debtor shall pay prior to delinquency all material taxes, charges, liens and assessments against the Collateral, except those that such Debtor is contesting in good faith and for which adequate accruals have been made, and upon such Debtor's failure to do so after ten (10) days' prior written notice, the Secured Party at its option may pay any of them and shall be the sole judge of the legality or validity thereof and the amount necessary to discharge the same. Such payment shall become part of the Obligations secured by this Agreement and shall be paid to the Sale Commencement DatePurchasers by such Debtor immediately and without demand, with interest thereon at the rate set forth in Section 3(c) hereof.
(iif) the Debtors Such Debtor shall have not accelerated or otherwise increased any promotional markdowns and maintain insurance at all times with respect to all Collateral against risks of fire, theft and such other risks as is reasonable for its business and as the Merchandise Secured Party may reasonably require (but in no event shall such Debtor be obligated to insure such Collateral in an amount greater than the replacement value thereof), including extended coverage. Within ten (10) days after the date hereof, such Debtor shall amend such insurance policies to contain a standard mortgagee's endorsement providing for payment of any
(g) Such Debtor shall, at its own expense, do, make, procure, execute and deliver all acts, things, writings and assurances as the Stores Secured Party may at any time reasonably request to protect, assure or enforce its interests, rights and remedies created by, provided in or emanating from that which was in effect on Fridaythis Agreement, November 10, 1995 and shall not accelerate any such markdowns during the period through and including the Inventory Commencement Date and (iii) the Debtors have taken, prior to the Inventory Commencement Date, with respect to filings with the Merchandise at Patent and Trademark Office. Such Debtor shall execute financing statements and take whatever other actions are reasonably requested by the Stores Secured Party to perfect and continue the Secured Party's security interests in the Collateral. In addition, such Debtor shall use its best efforts to take all appropriate markdowns as is consistent action (including but not limited to all appropriate action requested by the Secured Party) to perfect the Secured Party's security interest for any liens which may not be perfected by the filing of a Form UCC-1 (including but not limited to filings with its normal the U.S. Patent and ordinary course pricing practices Trademark Office). Prior to an Event of Default and policies upon the reasonable request of the Secured Party for purposes of perfection only, such Debtor shall deliver to the Secured Party any and have not raised all of the Retail Prices of documents evidencing or constituting the Collateral, and such Debtor shall note the Secured Party's interests upon any and all of such Merchandise documents if not delivered to the Secured Party for possession by it. Further, such Debtor hereby agrees not to take any action or, to its knowledge, omit to any action, that would cause the security interests granted hereby to be or become unperfected. Upon the occurrence and during the continuance of an Event of Default and upon the reasonable request of the Secured Party for purposes of enforcing the Secured Party's rights hereunder, such Debtor shall deliver to the Secured Party any and all of the documents evidencing or constituting the Collateral. Such Debtor hereby agrees that a carbon, photographic, photostatic or other than reproduction of this Agreement or of a financing statement is sufficient as a financing statement where permitted by law.
(h) Except in the ordinary course of business nor pur- chased business, as provided for in this Agreement, the Purchase Agreement or transferred any Merchandise the Note or goods outside as otherwise authorized by the Secured Party in writing by a Majority Vote (as defined in Section 9 hereof), such Debtor shall not sell, lend, license, rent, lease or otherwise dispose of the ordinary course Collateral or any interest therein, and such Debtor shall keep the Collateral, including the proceeds thereof, free from unpaid charges, including taxes, and from liens, encumbrances and security interests other than the security interests created by this Agreement in anticipation favor of the taking Secured Party (and Permitted Liens) .
(i) Such Debtor shall keep accurate and complete records of the Inventory pursuant Collateral and its proceeds.
(j) Such Debtor has good and valid rights in and title to Section 3 or the execution Collateral and has the full power and authority to grant to the Secured Party the security interests in the Collateral created by this Agreement and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other person other than any consent or approval that has been obtained.
5.7 The (k) Except as set forth on Schedule 4(k) hereof, such Debtor is the owner of the Collateral free of all liens, claims and encumbrances, except (i) the security interest created by this Security Agreement and granted in favor of the Secured Party and (ii) the Permitted Liens.
(l) Except as set forth on Schedule 4(l), with respect to any and all Collateral, such Debtor has not obtained and is not in the process of applying for any patents, trademarks or copyrights in the United States Copyright Office, the Patent and Trademark Office (or other foreign jurisdictions related to such filings). Such Debtor shall notify the Secured Party at least thirty (30) days prior to the filing of any initial patent, trademark or copyright applications with respect to the Collateral and will provide the Secured Party with all information necessary to assist the Secured Party in perfecting its security interest in the Collateral prior to the filing of any patent, copyright or trademark applications.
(m) Such Debtor agrees that the Secured Party holds the Collateral as agent for the Purchasers, and is hereby authorized to and may turn over to the Purchasers upon request therefor any such Collateral after all obligations and indebtedness of Debtors to the Secured Party have been fully paid and performed. Notwithstanding the foregoing, the Debtors hereby acknowledge and agree that in terms of payments in respect of the Notes and from the proceeds of any Collateral, each Purchaser shall be treated ratably in accordance with its pro rata share of the Notes based upon the ratio of the then outstanding principal amount of Purchaser's Note to the outstanding principal balance of all of the Notes ("Pro Rata Share") and the Debtors shall maintain execute and deliver such additional documents and take such additional action as may be necessary or desirable in good working orderthe reasonable opinion of the Secured Party to effectuate the provisions and purposes of the provisions of Section 7 hereof.
(n) As to that portion of the Collateral which is accounts, at their such Debtor represents, warrants and agrees with respect to each such account that:
(i) The account arose from the performance of services by such Debtor which have been performed or from the lease or the absolute sale of goods or provision of services by such Debtor in which such Debtor had the sole expenseand complete ownership, and the goods or services have been delivered or provided to, as the case may be, the cash registersaccount debtor.
(ii) The account is not subject to any prior or subsequent assignment, heating systemsclaim, air conditioning systems, elevators, escalators, Store alarm systems, lien or security interest other than (i) the security interest created by this Security Agreement and all other mechanical devices used granted in favor of the Secured Party and (ii) the Permitted Liens.
(iii) The account arose in the ordinary course of operation such Debtor's business, and no notice of bankruptcy, insolvency or financial embarrassment of the Stores up through and including the Sale Termination Dateaccount debtor has been received by such Debtor.
5.8 This Agreement is (o) The assets listed on the valid Disclosure Letter attached hereto are not used primarily in the SRM Business.
(p) Upon the occurrence of an Event of Default, and binding obligation upon the request of the Debtors and is enforceable in accordance with its terms, subject to obtaining approval by the Bankruptcy Court.
5.9 Subject to the Debtors' right as debtor in possession under sections 1107(a), 1108 and 365 of the Bankruptcy Code, all of the Lease Instruments are in full force and effect and, in accordance with the Approval Order referred to in clause (v) of Subsection 12.1Secured Party, the Debtors are entitled to occupy and utilize shall use their best efforts (with the Stores thereunder through the applicable Sale Termination Date. Without limitation on any cooperation of the foregoing Secured Party) to obtain the consent of eScout LLC and in accordance with eScout Acquisitions LLC to transfer the Approval Order, the Debtors represent and warrant that they will not (i) interfere or otherwise disrupt JNA's right to access and use of the Stores through the applicable Sale Termination Date, or (ii) fail to take any action required by the Lease Instruments that may cause another person to disrupt JNA's right to access and use of the Stores to conduct the Sale.
5.10 The Debtors covenant and agree that subsequent Perfect Commerce Note to the Sale Commencement Date they will not pledge, assign, lien, encumber, charge or otherwise transfer any interest in the Merchandise without the prior written consent of JNASecured Party.
5.11 The Debtors have no collective bargaining agreements with their employees, nor are any of their employees represented by labor unions.
5.12 No representation made by the Debtors in this Agreement contains any untrue statement of material fact or omits to state a material fact which makes such representation misleading.
Appears in 1 contract
