The Confirmation Order. On the date of the making of the ---------------------- initial Loans or the issuance of the initial Letters of Credit hereunder, whichever first occurs, the Confirmed Plan shall be effective, all conditions to effectiveness of the Confirmed Plan have been satisfied (other than those conditions which have been expressly waived in accordance with Sections 10.02 and 10.03 of the Confirmed Plan by the parties named therein and which waiver or waivers have been consented to in writing by the Administrative Agent) and the Confirmation Order and the Yonkers Confirmation Order each will have been entered and will not have been stayed, amended (other than amendments deemed immaterial by the Administrative Agent), vacated, reversed or rescinded and the Bankruptcy Court's retention of jurisdiction, if any, under the Confirmation Order and the Yonkers Confirmation Order shall not govern the enforcement of this Agreement and the other Loan Documents or any rights or remedies relating thereto after the Plan Effective Date. On the date of the making of any Loan or the issuance of any Letter of Credit, (i) the Confirmed Plan will be effective and the Confirmation Order will have been entered and will not have been amended (other than amendments deemed immaterial by the Administrative Agent), stayed, vacated, reversed or rescinded and (ii) the Yonkers Confirmation Order will have been entered and will not have been amended, stayed, vacated, reversed or rescinded in any manner which, in the Administrative Agent's sole discretion, could have a material adverse effect on (a) the assets, liabilities, business, operations, condition (financial or otherwise) or prospects of the Borrower or any other Credit Party or (b) the enforceability of the rights and remedies of the Administrative Agent, the Issuing Bank, the Collateral Agent, the Tranche B Agent, the Co-Agents and the Lenders under the Loan Documents (including, without limitation, the Liens granted to the Collateral Agent, for its benefit and the benefit of the other Secured Parties, under the Loan Documents), or (c) the ability of the Borrower or the other Credit Parties to pay the Obligations when due and to perform their covenants and agreements under the Loan Documents. Upon the maturity (whether by the acceleration or otherwise) of any of the Obligations of the Borrower and the other Credit Parties hereunder and under the other Loan Documents, the Lenders shall, subject to the provisions of Article VII, be entitled to immediate payment of such obligations, and to enforce the remedies provided for hereunder and under the other Loan Documents.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (New Horizons of Yonkers Inc)
The Confirmation Order. On At the date Hearing the Sellers shall seek the entry of the making of the ---------------------- initial Loans or the issuance of the initial Letters of Credit hereunder, whichever first occurs, the Confirmed Plan shall be effective, all conditions to effectiveness of the Confirmed Plan have been satisfied (other than those conditions which have been expressly waived in accordance with Sections 10.02 and 10.03 of the Confirmed Plan by the parties named therein and which waiver or waivers have been consented to in writing by the Administrative Agent) and the Confirmation Order. The Confirmation Order and the Yonkers Confirmation Order each will have been entered and will not have been stayedshall, amended among other matters:
(other than amendments deemed immaterial by the Administrative Agent), vacated, reversed or rescinded and the Bankruptcy Court's retention of jurisdiction, if any, under the Confirmation Order and the Yonkers Confirmation Order shall not govern the enforcement of a) approve this Agreement and the other Loan Documents or any rights or remedies relating thereto after the Plan Effective Date. On the date consummation of the making Transaction upon the terms and subject to the conditions of any Loan or this Agreement;
(b) find that, as of the issuance Closing Date, the transactions contemplated by this Agreement effect a legal, valid, enforceable and effective sale and transfer of any Letter the Property to and the assumption of Creditthe Assumed Loans by the Purchaser and shall vest the Purchaser with title to the Property free and clear of all Encumbrances other than Permitted Encumbrances;
(c) find that the Assumed Loans have, net of the Paydown Amount, an outstanding principal balance not exceeding One Hundred Thirty Four Million and One Hundred and Fifty-Nine Thousand Eight Hundred and Fifteen Dollars and 40/100 Dollars ($134,159,815.40), and as of the Closing Date and giving effect to the Paydown Amount (i) the Confirmed Plan Assumed Loans are in full force and effect, (ii) there is no event of default (or an event that through the passage of time would give rise to an event of default) with respect to the Assumed Loans (iii) the Assumed Loans are secured by duly perfected liens against and security interests in the Property and are enforceable in accordance with their terms and upon the assumption of the Assumed Loans, will be effective valid, enforceable and binding obligations of Purchaser in accordance with their terms and (iv) from and after the Closing Date until the date of any subsequent default or event of default the Assumed Loans will accrue interest at the non-default rate (as such non-default rates are more particularly described in each Assumed Loan);
(d) find that the consideration provided by the Purchaser pursuant to this Agreement constitutes reasonably equivalent value and fair consideration for the Property;
(e) (i) authorize the Sellers and each of the Operating Tenants to assume and assign to the Purchaser each of the Assumed Contracts and Assumed Leases, (ii) find that, as of the Closing Date, the Contracts and Leases to be assumed by the Sellers and each Operating Tenant assigned to the Purchaser pursuant to this Agreement and the Confirmation Order Assignment and Assumption Agreement will have been entered duly assigned to the Purchaser in accordance with Section 365 of the Bankruptcy Code and will not have been amended (other than amendments deemed immaterial iii) order that any Cure Costs (as defined in the Confirmation Order) under the Assumed Contracts and Assumed Leases shall be paid by the Administrative AgentSellers as soon as practicable and in no event later than the date on which the Assumed Contract or Assumed Lease is deemed assumed and assigned in accordance with the Cure Procedures (as defined in the Confirmation Order) (unless the Bankruptcy Court orders otherwise);
(f) find that the Purchaser is a good faith purchaser of the Property pursuant to Section 363(m) of the Bankruptcy Code;
(g) find that the Purchaser did not engage in any conduct that would cause or permit this Agreement or the consummation of the Transaction to be avoided, stayedor costs or damages to be imposed, vacatedunder Section 363(n) of the Bankruptcy Code;
(h) order that the Assumed Contracts and the Assumed Leases will be transferred to, reversed and remain in full force and effect for the benefit of, the Purchaser, notwithstanding any provision in any such Contract or rescinded Lease or any requirement of Applicable Law (including those described in Sections 365(b)(2) and (iif) of the Yonkers Confirmation Order will have been entered and will not have been amendedBankruptcy Code) that prohibits, stayed, vacated, reversed restricts or rescinded limits in any manner which, in way such assignment or transfer;
(i) approve any other agreement to the Administrative Agent's sole discretion, could have a material adverse effect on extent provided by this Agreement;
(j) find that the Sellers gave due and proper notice of the Transaction to each party entitled thereto;
(k) find that the Purchaser has satisfied all requirements under Sections 365(b)(1) and 365(f)(2) of the Bankruptcy Code to provide adequate assurance of future performance of the Assumed Contracts and Assumed Leases and that the Purchaser has guaranteed the obligations of any assign which has assumed each Assumed Contract and Assumed Lease;
(l) enjoin and forever bar the non-debtor party or parties to each Assumed Contract or Assumed Lease from asserting against the Purchaser or any of the Property: (a) the assetsany default, liabilitiesClaim, business, operations, condition (financial Liability or otherwise) or prospects other cause of action existing as of the Borrower Closing Date whether asserted or any other Credit Party or not and (b) any objection to the enforceability assumption and assignment of such non-debtor party’s Assumed Contract and Assumed Lease;
(m) find that, to the rights and remedies of the Administrative Agentextent permitted by Applicable Law, the Issuing BankPurchaser is not a successor to any Seller or its bankruptcy estate by reason of any theory of law or equity, the Collateral Agent, the Tranche B Agent, the Co-Agents and the Lenders under the Loan Documents Purchaser shall not assume or in any way be responsible for any Liability of a Seller and/or its bankruptcy estate, except as otherwise expressly provided in this Agreement;
(including, without limitation, the Liens granted n) make this Agreement expressly binding (based upon language satisfactory to the Collateral Agent, for its benefit and Purchaser) upon any United States bankruptcy court or trustee in the benefit event of the other Secured Parties, under the Loan Documents), or (c) the ability of the Borrower or the other Credit Parties to pay the Obligations when due and to perform their covenants and agreements under the Loan Documents. Upon the maturity (whether by the acceleration or otherwise) conversion of any of the Obligations Seller Chapter 11 Cases to chapter 7, appointment of a chapter 11 trustee in any Seller Chapter 11 Case, or transfer of venue of any Seller Chapter 11 Case to a bankruptcy court other than the Borrower and the other Credit Parties hereunder and under the other Loan DocumentsBankruptcy Court; and
(o) order that, the Lenders shall, subject to notwithstanding the provisions of Article VIIFederal Rules of Bankruptcy Procedure 6004(h) and 6006(d), be entitled to immediate payment of such obligations, and to enforce the remedies provided for hereunder and under the other Loan DocumentsConfirmation Order is effective immediately upon entry.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chatham Lodging Trust)
The Confirmation Order. On the date of the making of the ---------------------- initial Loans or the issuance of the initial Letters of Credit hereunder, whichever first occurs, the Confirmed Plan shall be effective, all conditions to effectiveness of the Confirmed Plan have been satisfied (other than those conditions which have been expressly waived in accordance with Sections 10.02 and 10.03 of the Confirmed Plan by the parties named therein and which waiver or waivers have been consented to in writing by the Administrative Agent) and the Confirmation Order and the Yonkers Confirmation Order each will have been entered and will not have been stayed, amended (other than amendments deemed immaterial by the Administrative Agent), vacated, reversed or rescinded and the Bankruptcy Court's retention of jurisdiction, if any, under the Confirmation Order and the Yonkers Confirmation Order shall not govern the enforcement of this Agreement and the other Loan Documents or any rights or remedies relating thereto after the Plan Effective Date. On the date of the making of any Loan or the issuance of any Letter of Credit, (i) the Confirmed Plan will be effective contains only provisions that are nonseverable and the Confirmation Order will have been entered and will not have been amended (other than amendments deemed immaterial by the Administrative Agent), stayed, vacated, reversed or rescinded and mutually dependent;
(ii) provides that all executory contracts or unexpired leases assumed by Reorganized Drug Emporium during the Yonkers Chapter 11 Cases or under this Plan shall remain in full force and effect for the benefit of Reorganized Drug Emporium notwithstanding any provision in such contract or lease (including those described in Sections 365(b)(2) and (f) of the Bankruptcy Code) that prohibits such assignment or transfer or that enables, permits or requires termination of such contract or lease;
(iii) except as expressly provided in this Plan, discharges the Debtors as of the Confirmation Order will have Date from all Claims and any "debt" (as that term in defined in Section 101(12) of the Bankruptcy Code) that arose on or before the Confirmation Date, and the Debtors' liability in respect of such Claims and debts shall be extinguished completely, whether reduced to judgment or not, liquidated or unliquidated, contingent or noncontingent, asserted or unasserted, fixed or unfixed, matured or unmatured, disputed or undisputed, legal or equitable, or known or unknown, or that arose from any agreement of the Debtors that has either been entered and will not have been amended, stayed, vacated, reversed assumed or rescinded in any manner which, rejected in the Administrative Agent's sole discretionChapter 11 Cases or under this Plan, could have a material adverse effect on (a) the assets, liabilities, business, operations, condition (financial or otherwise) or prospects obligation of the Borrower Debtors incurred before the Confirmation Date, or any other Credit Party from the Debtors' conduct before the Confirmation Date, or (b) that otherwise arose before the enforceability of the rights and remedies of the Administrative Agent, the Issuing Bank, the Collateral Agent, the Tranche B Agent, the Co-Agents and the Lenders under the Loan Documents (Confirmation Date including, without limitation, all interest, if any, on any such debts, whether such interest accrued before or after the Liens granted to Petition Date;
(iv) does not provide for the Collateral liquidation of all or substantially all of the Debtors' property and Confirmation must not likely be followed by the liquidation of Reorganized Drug Emporium or the need for further financial reorganizations; and,
(v) in accordance with Section 1123(b)(3)(B) of the Bankruptcy Code, appoints the Disbursing Agent, for its benefit approves the Plan Administration Agreement and specifically appoints the benefit of Plan Administrator and Oversight Committee in accordance with the other Secured Parties, under the Loan Documents), or (c) the ability of the Borrower or the other Credit Parties to pay the Obligations when due and to perform their covenants and agreements under the Loan Documents. Upon the maturity (whether by the acceleration or otherwise) of any of the Obligations of the Borrower and the other Credit Parties hereunder and under the other Loan Documents, the Lenders shall, subject to the provisions of Article VII, be entitled to immediate payment of such obligations, and to enforce the remedies provided for hereunder and under the other Loan DocumentsPlan.
Appears in 1 contract
Samples: Acquisition and Reorganization Agreement (Drug Emporium Inc)
The Confirmation Order. On the date of the making of the ---------------------- initial Loans or the issuance of the initial Letters of Credit hereunder, whichever first occurs, the Confirmed Plan shall be effective, all conditions to effectiveness of the Confirmed Plan have been satisfied (other than those conditions which have been expressly waived in accordance with Sections 10.02 and 10.03 of the Confirmed Plan by the parties named therein and which waiver or waivers have been consented to in writing by the Administrative Agent) and the Confirmation Order and the Yonkers Confirmation Order each will have been entered and will not have been stayed, amended (other than amendments deemed immaterial by the Administrative Agent), vacated, reversed or rescinded and the Bankruptcy Court's retention of jurisdiction, if any, under the Confirmation Order and the Yonkers The Confirmation Order shall not govern be in form and substance reasonably satisfactory to the enforcement of this Agreement Acquiror and the other Loan Documents or any rights or remedies relating thereto after the Plan Effective Date. On the date of the making of any Loan or the issuance of any Letter of Credit, shall provide that:
(i) On the Confirmed Closing Date, unless otherwise provided in the Plan will be effective and Term Sheet, the Confirmation Order will have been entered discharge the Company and will the License Subsidiaries, from any and all Claims and Liabilities whether or not have been amended (other than amendments deemed immaterial by the Administrative Agent), stayed, vacated, reversed or rescinded and (ii) the Yonkers Confirmation Order will have been entered and will not have been amended, stayed, vacated, reversed or rescinded in any manner which, in the Administrative Agent's sole discretion, could have a material adverse effect on (a) a Proof of Claim based on such Claim was filed or deemed filed under Bankruptcy Code section 501, or such Claim was listed on the assets, liabilities, business, operations, condition (financial or otherwise) or prospects schedules of the Borrower Company or any other Credit Party or of the Debtor Subsidiaries filed in the Bankruptcy Case; (b) the enforceability of the rights and remedies of the Administrative Agent, the Issuing Bank, the Collateral Agent, the Tranche B Agent, the Co-Agents and the Lenders such Claim is or was allowed under the Loan Documents (including, without limitation, the Liens granted to the Collateral Agent, for its benefit and the benefit of the other Secured Parties, under the Loan Documents), Bankruptcy Code section 502; or (c) the ability holder of such Claim has voted on or accepted the Bankruptcy Plan. The rights that are provided in the Bankruptcy Plan shall be in complete (x) discharge of all Claims against, Liens on, and Interests against the Company and the License Subsidiaries and (y) discharge and release of all Claims and Liabilities, including all causes of action, whether known or unknown, against the Company and the License Subsidiaries. After the Closing Date, all such Claims and Liabilities may only be asserted as provided for in the Bankruptcy Plan or against Opco.
(ii) Unless otherwise provided in the Plan Term Sheet, all Persons that have held or asserted, which hold or assert, or which may in the future hold or assert any Claim, Liability, demand or cause of action against the Company and the License Subsidiaries (or any of them) or relating to the operation of the Borrower businesses of the Company or the License Subsidiaries before the Closing Date whenever and wherever arising or asserted (including all such Claims sounding in tort, contract, warranty or any other Credit Parties theory of law, equity or admiralty, whether legal or equitable, matured or unmatured, contingent or non-contingent, senior or subordinated), or Interest, shall be permanently stayed, estopped, restrained and enjoined from taking any action for the purpose of directly or indirectly collecting, recovering, or receiving payments, satisfaction, or recovery with respect to pay any such Claim, Liability, demand, cause of action or Interest, including:
(A) commencing or continuing in any manner any action or other proceeding of any kind with respect to any such Claim, Liability, demand or cause of action, or Interest against any of the Obligations when due Company and to perform their covenants and agreements under the Loan Documents. Upon License Subsidiaries, or against the maturity (whether by the acceleration or otherwise) property of any of the Obligations Company and the License Subsidiaries with respect to any such claim, demand or cause of action, or Interest;
(B) enforcing, attaching, collecting, or recovering, by any manner or means, any judgment, award, decree or order against any of the Borrower Company and the other Credit Parties hereunder License Subsidiaries or against the property of any of the Company and under the other Loan DocumentsLicense Subsidiaries with respect to any such Claim, Liability, demand or cause of action or Interest;
(C) creating, perfecting or enforcing any Lien of any kind against any of the Lenders shallCompany and the License Subsidiaries or any of the property of any Company and the License Subsidiaries with respect to any such Claim, subject Liability, demand or cause of action or Interest;
(D) asserting or accomplishing any setoff, right of subrogation, indemnity contribution or recoupment of any kind against any obligation due any of the Company and the License Subsidiaries or against the property of any of the Company and the License Subsidiaries with respect to any such Claim, Liability, demand, cause of action or Interest; and
(E) taking any act, in any manner, in any place whatsoever, against any of the Company and the License Subsidiaries or their property, that does not conform to, or comply with, the provisions of Article VIIthe Bankruptcy Plan relating to such Claim, be entitled Liability, demand, cause of action or Interest.
(iii) From and after the Closing Date, Opco shall defend, indemnify and hold harmless the Company and the License Subsidiaries and each of their respective representatives and heirs, successors and assigns (collectively, the “Purchaser Indemnified Parties”) from and against any loss, Claim, Liability, expense or damage (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising under or out of, in connection with, or in any way relating to, the Company, the Debtor Subsidiaries, the operations of the Company and the Debtor Subsidiaries prior to immediate payment the Closing Date, the issuance of such obligationsthe Shares to the Acquiror, and to enforce any violation of the remedies injunction provided for hereunder and under the other Loan Documentsin Section 7.2(g)(ii).
Appears in 1 contract
