Time of Payments. (a) The Agent shall pay to Merchant 75% of the estimated Guaranteed Amount attributable to Merchandise in the Stores as of the Sale Commencement Date within two business days after entry by the Bankruptcy Court Clerk of the Approval Order, which amount shall be calculated based upon Merchant's good faith estimate of the value of such Merchandise as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafter, within two (2) business days after the Settlement Date, (i) Agent shall pay to Merchant any portion remaining due on account of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions of the Post-Closing ------- Payment as soon as practicable after resolution of such dispute in accordance with Section 5.5 below; or (ii) to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to Agent. (b) The Agent shall make payments of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below. (c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any. (d) All payments by Merchant or Agent hereunder shall be by wire transfer of immediately available funds.
Appears in 1 contract
Time of Payments. (a) The On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant 75% an amount (the “Initial Guaranty Payment”) equal to ninety percent (90%) of the product of (i) the Guaranty Percentage and the estimated Guaranteed Amount attributable aggregate Cost Value of the Merchandise to Merchandise be included in the Stores Sale as of reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date, without taking into account the Global Inventory Adjustment (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within two business ten (10) days after entry by its completion and (ii) the Bankruptcy Court Clerk date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the Approval Order, which amount shall be calculated based upon Merchant's good faith estimate undisputed balance of the value Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of such Merchandise the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of such date the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafterabove, within two three (23) business days after the Settlement DateFinal Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, (i) Agent shall pay to Merchant any portion remaining due on account such Recovery Amount as part of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions of the Post-Closing ------- Payment Final Reconciliation under Section 8.7, as soon as practicable commercially reasonable after resolution of such dispute in accordance with Section 5.5 below; or (ii) to the Sale Termination Date. To the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds Agent is owed the actual Guaranteed Adjustment Amount, Merchant and the Lenders received the Adjustment Amount, then the Lenders shall immediately reimburse such excess promptly, upon the written request of Agent, disgorge and remit the Adjustment Amount to Agent.
(b) The All amounts required to be paid by Agent shall make payments or Merchant under any provision of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment this Agreement shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any.
(d) All payments by Merchant or Agent hereunder shall be by wire transfer of immediately available fundsfunds which shall be wired by Agent or Merchant, as applicable, no later as 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.
Appears in 1 contract
Samples: Agency Agreement
Time of Payments. (a) The No later than one (1) business day after the later of (x) entry of the Approval Order and (y) execution hereof (the "Payment Date"), Agent shall pay to Merchant 75% eighty-five percent (85%) of the estimated Guaranteed Amount attributable (the "Guaranteed Amount Deposit") (reduced by any amounts paid prior to the payment of the Guaranteed Amount Deposit) in readily available funds, which amount shall be wired to the following account: PNC Bank, National Association, ABA# 000000000, Account # 8026261117, Account Name; Anchor Blue Inc. for the benefit of PNC Bank, National Association, Reference: Anchor Blue (the “PNC Account”), Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Retail Value of the Merchandise in the Stores as of the Sale Commencement Date within two business days after entry by as reflected in Merchant's books and records (the Bankruptcy Court Clerk "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed balance of the Approval OrderGuaranteed Amount in readily available funds, which amount shall be calculated based upon Merchant's good faith estimate wired to the PNC Account no later than the earlier of (i) the date that is thirty (30) business days after the Sale Commencement Date (in which case payment shall be of the value undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Retail Value of the Merchandise by the Inventory Taking Service, after verification thereof by Agent and Merchant (the "Inventory Report"), and Agent's failure to pay such Merchandise balance or undisputed portion shall entitle the Lender Agent on behalf of Merchant to draw upon the Agent Letter of Credit (as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997defined below) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof3.3(b) to the extent of such balance or undisputed portion. ThereafterIn the event that after the issuance of the Inventory Report as verified, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, Agent shall pay the remainder of the Guaranteed Amount to the Lender Agent for the benefit of Merchant within two (2) business days after the Settlement Date, (i) Agent shall pay Inventory Report has been issued. In the event that there is a dispute with respect to Merchant any portion remaining due on account the reconciliation of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions aggregate Retail Value of the Post-Closing ------- Payment as soon as practicable after resolution of Merchandise following the Inventory Taking, then any such dispute shall be resolved in accordance with the manner and at the times set forth in Section 5.5 below; or (ii5.2(c) to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to Agenthereof.
(b) The Agent shall make payments To secure payment of the unpaid portion of the Guaranteed Amount attributable from Agent to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 belowhereunder, Agent shall pay deliver to Merchant an irrevocable standby letter of credit, naming Lender Agent as beneficiary, substantially in the form of Exhibit 3.3(b) attached hereto, in the original face amount equal to the unpaid portion of the Estimated Guaranteed Amount as of the Payment Date (as amended and in effect from time to time, the "Agent Letter of Credit") and shall contain terms, provisions and conditions mutually acceptable to Merchant's Recovery Amount due hereunder, if any.
Lender Agent, PNC Business Credit, and Agent. As used in this Agreement, "Lender Agent" shall mean PNC Business Credit, as Agent (d"PNC") All payments by Merchant or so long as PNC has not been paid in full from the Estimated Guaranteed Amount; provided, further, that, once PNC has been paid in full, Lender Agent hereunder shall mean the Term Loan Agent so long as the Term Loan Agent has not been paid in full from the Estimated Guaranteed Amount; provided, further, that, thereafter Lender Agent shall mean Merchant. Agent shall cause the Agent Letter of Credit to be by wire transfer delivered to Lender Agent no later than the Payment Date (or, in the event that the Payment Date falls on a weekend, no later than the next business day). The Agent Letter of immediately available funds.Credit shall expire no less than sixty
Appears in 1 contract
Samples: Agency Agreement
Time of Payments. (a) The On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant 75(i) 90% of the estimated Guaranteed Amount attributable to Merchant (the “Guaranteed Amount Deposit”) by wire transfer to the account(s) designated on Exhibit 3.3(a) annexed hereto (the “Merchant Account”), (ii) the Agent Sale FF&E Guarantee and (iii) the aggregate amount calculated in accordance with Section 7.4. The Guaranteed Amount Deposit shall be based on the estimated Cost Value (as determined in accordance with Section 5.1 of the Agreement) of the Merchandise in the Stores as of on the Sale Commencement Date within two business days after entry by as reflected in the Bankruptcy Court Clerk master inventory file(s) provided to Agent on June 19, 2011, which shall be rolled forward to the Sale Commencement Date (the “Perpetual Inventory File”), provided that, the Guaranteed Amount Deposit shall not take into account any On-Order Goods or Xxxxxxx Goods, which shall be paid when received in the applicable weekly reconciliation.
(b) The balance of the Approval OrderGuaranteed Amount (the “Remaining Guaranteed Amount”), shall be paid as follows: Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount, which amount shall be calculated based upon Merchant's good faith estimate paid to the Merchant Account no later than the earlier of (i) the date that is forty five (45) days after the Sale Commencement Date (in which case payment shall be of the value undisputed portion of the balance of the estimated Guaranteed Amount) and (ii) the second business day following the issuance of the Final Inventory Report, and Agent’s failure to pay such Merchandise balance or undisputed portion shall entitle the Merchant and GECC to draw upon the Agent Letter of Credit (as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997defined below) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereofsection 3.4 to the extent of such balance or undisputed portion. ThereafterIn the event that after the issuance of the Final Inventory Report as verified and reconciled, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the estimated Guaranteed Amount, Agent shall pay the remainder of the Guaranteed Amount to the Merchant within two (2) business days after the Settlement Date, (i) Agent shall pay Final Inventory Report has been issued as verified and reconciled. In the event that there is a dispute with respect to Merchant any portion remaining due on account the reconciliation of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions aggregate Cost Value of the Post-Closing ------- Payment as soon as practicable after resolution of Merchandise following the Inventory Taking, then any such dispute shall be resolved in accordance with Section 5.5 below; or (ii) to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to Agent.
(b) The Agent shall make payments of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise manner and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to times set forth in Section 8.7 below8.6 hereof.
(c) Within two (2) days after completion All amounts required to be paid by Agent or Merchant and Agent under any provision of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any.
(d) All payments by Merchant or Agent hereunder this Agreement shall be made by wire transfer of immediately available fundsfunds which shall be wired by Agent or Merchant, as applicable, no later than 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.
(d) Merchant agrees that if at any time during the Sale Term, Merchant holds any undisputed amounts due to Agent as Proceeds hereunder, Agent may, in its discretion, offset such Proceeds being held by Merchant against any amounts due and owing to Merchant pursuant to this Section 3.3 or otherwise under this Agreement. In addition, Merchant and Agent further agree that except as provided in the following sentence, if at any time during the Sale Term, Agent holds any undisputed amounts due to Merchant under this Agreement, Agent may, in its discretion, offset such amounts being held by it against any amounts due and owing by, or required to be paid by, Merchant hereunder. Notwithstanding the foregoing or any other provision to the contrary herein, in no event shall Agent offset any amounts against the proceeds realized from the disposition of the Agent Sale FF&E.
(e) If and to the extent that Agent over-funds any amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report, then Merchant agrees to promptly reimburse such undisputed overpayment amounts to Agent. To the extent that any over-funded amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report have been received by GECC and have not been reimbursed by Merchant, Agent shall inform GECC by written notice of such overpayment and GECC agrees to disgorge such overpayment to Agent within two (2) business days of such notice.
Appears in 1 contract
Samples: Agency Agreement (Borders Group Inc)
Time of Payments. (a) The On the first business day following the Sale Commencement Date (the “Payment Date”), Agent shall pay to Merchant 75% an amount (the “Initial Guaranty Payment”) equal to eighty percent (80%) of the product of (i) the Guaranty Percentage and (ii) the estimated Guaranteed Amount attributable aggregate Cost Value of the Merchandise (including DC Merchandise) to Merchandise be included in the Stores Sale as of reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by Merchant. The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by Merchant on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Value of the Merchandise included in the Sale as reflected in the Inventory Taking report (the “Final Inventory Report”), after review, reconciliation and verification thereof by Agent and Merchant in consultation with HSBC Bank USA (the “Trustee”), as trustee for the lien holders under that certain second lien indenture dated as of November 26, 2008 and that certain third lien indenture dated as of November 26, 2008 (collectively the “Indenture Lien Holders”), and General Electric Capital Corporation, in its capacity as Agent for the lenders under that certain Fourth Amended and Restated Credit Agreement dated as of November 9, 2007 by and between, among other parties, the Merchant, Carlyle & Co. Jewelers LLC, L. Congress, Inc, Finlay Enterprises, Inc., certain additional subsidiaries thereof, the lenders party thereto (collectively, the “Secured Lenders”), and General Electric Capital Corporation, as Agent for the Secured Lenders (such agent, the “Lender Agent”), as such Fourth Amended and Restated Credit Agreement has been and may hereafter be amended, supplemented, restated or otherwise modified from time to time (the “Credit Agreement”), to the extent that any amounts under the Credit Agreement remain unpaid; provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within two business ten (10) days after entry by its completion and (ii) the Bankruptcy Court Clerk of the Approval Order, which amount shall be calculated based upon Merchant's good faith estimate of the value of such Merchandise as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week that is thirty (October 25, 199730) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafter, within two (2) business days after the Settlement Sale Commencement Date, (i) in which case the immediate payment to be made shall be of the undisputed balance of the Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment and/or all other amounts funded by Agent shall pay to Merchant any portion remaining due on account of the Guaranteed Amount exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the "Post-Closing ------------ Payment")“Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth above, within three (3) business days after the Final Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay to Merchant any disputed portions such Recovery Amount as part of the Post-Closing ------- Payment Final Reconciliation under Section 3.7, as soon as practicable commercially reasonable after resolution of such dispute in accordance with Section 5.5 below; or (ii) to the Sale Termination Date. To the extent that Agent's the Agent is owed the Adjustment Amount, Agent shall make demand for payment on account of Merchant and Merchant shall promptly tender payment of the estimated Guaranteed Adjustment Amount exceeds to Agent. In the actual Guaranteed event that Merchant fails to tender payment of the Adjustment Amount, Merchant Agent shall immediately reimburse make demand for payment thereof upon the Trustee and the Trustee shall make payment of the Adjustment Amount, within five (5) business days after receipt of such excess to Agentnotice.
(b) The All amounts required to be paid by Agent shall make payments or Merchant under any provision of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment this Agreement shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any.
(d) All payments by Merchant or Agent hereunder shall be by wire transfer of immediately available fundsfunds which shall be wired by Agent or Merchant, as applicable, no later than 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.
(c) Agent agrees that if at any time during the Sale Term, Merchant holds any amounts due to Agent hereunder, Merchant may in its discretion offset such amounts being held by Merchant against any amounts due and owing by, or required to be paid by, Agent under this Agreement. In addition, Merchant agrees that if at any time during the Sale Term, Agent holds any amounts due to Merchant hereunder, Agent may in its discretion offset such amounts being held by Agent against any amounts due and owing by, or required to be paid by Merchant under this Agreement. Any such setoffs should be reconciled as part of the weekly reconciliation.
Appears in 1 contract
Time of Payments. (a) The On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant an amount (the “Initial Guaranty Payment”) equal to seventy-five percent (75% %) of the product of (i) the Guaranty Percentage and the estimated Guaranteed Amount attributable aggregate Retail Value of the Merchandise to Merchandise be included in the Stores Sale as of reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by Merchant prior to the Payment Date (the “Designated Account”). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by Merchant on the second business day following the issuance of the final report of the aggregate Retail Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant (as reviewed, reconciled, and verified by Agent and Merchant, the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile and verify the Inventory Taking within two business ten calendar (10) days after entry its completion. In the event Merchant and Agent are unable to reconcile and verify the Inventory Taking within such ten (10) day period, both Agent and Merchant agree to submit any disputes for expedited resolution by the Bankruptcy Court Clerk of Court. In the Approval Orderevent that the Initial Guaranty Payment exceeds the Guaranteed Amount, which amount shall be calculated based upon Merchant's good faith estimate of the value of such Merchandise as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafter, within two (2) business days after the Settlement Date, (i) Agent Merchant shall pay to Merchant Agent the amount (the “Adjustment Amount”) by which the Initial Guaranty Payment exceeds the Guaranteed Amount and any portion remaining due other amounts paid by Agent on account of the Guaranteed Amount (within one business day after the "Post-Closing ------------ Payment")Final Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, Agent shall pay to Merchant any disputed portions such Recovery Amount as part of the Post-Closing ------- Payment Final Reconciliation under Section 8.6, as soon as practicable commercially reasonable after resolution of such dispute in accordance with Section 5.5 below; or (ii) to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to AgentSale Termination Date.
(b) The All amounts required to be paid by Agent shall make payments or Merchant under any provision of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment this Agreement shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any.
(d) All payments by Merchant or Agent hereunder shall be by wire transfer of immediately available fundsfunds which shall be wired by Agent or Merchant, as applicable, no later as 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.
(c) Merchant agrees that if at any time during the Sale Term Merchant holds any amounts due to Agent hereunder, Agent may in its discretion offset such amounts being held by Merchant against any amounts due and owing to Merchant pursuant to this Section 3.3 or otherwise under this Agreement. In addition, Merchant and Agent further agree that if at any time during the Sale Term, Agent holds any amounts due to Merchant under this Agreement, Agent may in its discretion offset such amounts being held by it against any amounts due and owing by, or required to be paid by, Merchant hereunder.
Appears in 1 contract
Samples: Agency Agreement
Time of Payments. (a) The Agent shall pay to Merchant 75% of the estimated Guaranteed Amount attributable to Merchandise in the Stores as of the Sale Commencement Date within two business days after entry by the Bankruptcy Court Clerk of the Approval Order, which amount ARCHITECT’s compensation shall be calculated based upon Merchant's good faith estimate of the value of such Merchandise as of such date as set forth paid by DISTRICT to ARCHITECT monthly, in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns arrears in accordance with Section 5.3 hereof. Thereafter, within two (2) business days after the Settlement Date, (i) Agent shall pay to Merchant any portion remaining due conditions following:
i. Payments on account of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent basic services shall pay be made monthly in proportion to Merchant any disputed portions of the Post-Closing ------- Payment services performed within each phase as soon as practicable after resolution of such dispute in accordance with Section 5.5 below; or (ii) reasonably determined by DISTRICT up to the extent that Agent's payment following amounts (or as otherwise agreed): UPON COMPLETION OF PERCENTAGE OF TOTAL FEES CUMULATIVE PERCENTAGE OF TOTAL FEES Schematic design phase 10 10 Design development phase 15 25 Construction documents phase 45 70 DSA approval 5 75 Bid phase 5 80 Construction phase 20 100 ii. Payments on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amountadditional services, Merchant shall immediately reimburse such excess to Agent.
(b) The Agent shall make payments of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following in installments, not more often than monthly, proportionate to the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 belowdegree of completion of such services or in such other manner as the parties shall specify when such services are agreed upon.
iii. Each payment to ARCHITECT shall be made monthly in the usual course of DISTRICT business after presentation by ARCHITECT of an invoice approved by DISTRICT’s authorized representative designating services performed, method of computation of amount payable, and amount payable. For Basic Services, the ARCHITECT shall be paid within thirty (c) Within two (230) days after completion by Merchant from receipt of approved invoice. A service charge of one and Agent one-half percent (1.5%) of the final Sale reconciliation pursuant to Section 8.7 below, Agent unpaid balance shall pay to Merchant the Merchant's Recovery Amount due hereunder, if anybe charged monthly on all undisputed amounts unpaid after thirty (30) days.
(d) All payments iv. Should DISTRICT cancel this Agreement at any time, ARCHITECT shall, upon notice of such cancellation, forthwith cease all services hereunder. If the Agreement is canceled for any reason other than a material breach of the Agreement by Merchant or Agent hereunder ARCHITECT, the ARCHITECT’s total fee for all services performed shall be computed under the foregoing provisions of this Agreement to cover services actually performed to the date of such notice and shall include compensation for services within the phase of performance at which the ARCHITECT’S services stopped, proportionate to the degree of completion of the work on such phase. In addition, ARCHITECT shall be paid a cancellation expense fee, which shall compensate ARCHITECT for all expenses, including but not limited to start up costs, incurred by wire transfer ARCHITECT as a result of immediately available fundscancellation of the Agreement. The cancellation expense fee shall be an amount computed as a percentage of the total compensation earned at the time of cancellation as follows:
a. Twenty percent if termination occurs during or prior to the Schematic Design Phase; or
b. Ten percent if termination occurs during the Design Development Phase;
c. Five percent if termination occurs subsequent to the Design Development Phase.
v. Should DISTRICT cancel this Agreement due to a material breach of the Agreement by ARCHITECT, the ARCHITECT shall upon notice of such cancellation forthwith cease all services hereunder. In such event, ARCHITECT’S total fee for all services performed shall be computed under the foregoing provisions of this Agreement to cover services satisfactorily performed to the date of such notice and shall include compensation for services within the phase of performance at which the services stopped proportionate to the degree of completion of the ARCHITECT’s satisfactorily completed services on such phase.
Appears in 1 contract
Samples: Architectural Services Agreement
Time of Payments. (a) The On the first business day following issuance of the Approval Order (the “Payment Date”), Agent shall pay to Merchant 75% an amount (the “Initial Guaranty Payment”) equal to ninety percent (90%) of the product of (i) the Guaranty Percentage and the estimated Guaranteed Amount attributable aggregate Cost Value of the Merchandise to Merchandise be included in the Stores Sale as of reflected on Merchant’s books and records on the last business day immediately preceding the Sale Commencement Date (the “Estimated Guaranteed Amount”) by wire transfer to the account designated by GECC prior to the Payment Date (the “Lenders’ Designated Account). The balance of the Guaranteed Amount, if any, shall be paid by Agent by wire transfer to the account designated by GECC on the earlier of (i) the second business day following the issuance of the final report of the aggregate Cost Value of the Merchandise included in the Sale by the Inventory Taking Service, after review, reconciliation and verification thereof by Agent and Merchant in consultation with Lenders, (the “Final Inventory Report”); provided, however, that Merchant and Agent shall exercise reasonable best efforts to reconcile the Inventory Taking within two business ten (10) days after entry by its completion and (ii) the Bankruptcy Court Clerk date that is thirty (30) days after the Sale Commencement Date, in which case the payment shall be of the Approval Order, which amount shall be calculated based upon Merchant's good faith estimate undisputed balance of the value Guaranteed Amount. In the event that the Final Inventory Report is issued after payment of such Merchandise the undisputed portion of the Guaranteed Amount, or in the event that the Initial Guaranty Payment exceeds the Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the sum of such date the Initial Guaranty Payment and the undisputed balance of the Guaranteed Amount actually paid as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafterabove, within two three (23) business days after the Settlement DateFinal Inventory Report has been issued. To the extent that Merchant is entitled to receive a Recovery Amount from Proceeds, (i) Agent shall pay to Merchant any portion remaining due on account such Recovery Amount as part of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions of the Post-Closing ------- Payment Final Reconciliation under Section 8.7, as soon as practicable commercially reasonable after resolution of such dispute in accordance with Section 5.5 below; or (ii) to the Sale Termination Date. To the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds Agent is owed the actual Guaranteed Adjustment Amount, Merchant and the Lenders received the Adjustment Amount, then the Lenders shall immediately reimburse such excess promptly, upon the written request of Agent, disgorge and remit the Adjustment Amount to Agent.
(b) The All amounts required to be paid by Agent shall make payments or Merchant under any provision of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment this Agreement shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any.
(d) All payments by Merchant or Agent hereunder shall be by wire transfer of immediately available fundsfunds which shall be wired by Agent or Merchant, as applicable, no later as 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.
Appears in 1 contract
Time of Payments. (a) The Agent shall pay to Merchant 75% via wire transfer eighty percent (80%) of the estimated Guaranteed Amount attributable to Merchandise in the Stores as of the Sale Commencement Date within two one business days day after entry by the Bankruptcy Court Clerk issuance of the Approval Order, which amount shall be calculated based upon Merchant's good faith estimate of the net book value of such Merchandise as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafter, within two on the earlier of (2i) one (1) business day after the reconciliation by Merchant and Agent of the final inventory report by the inventory taking service, and (ii) thirty (30) days after the Settlement Sale Commencement Date, (i) Agent shall pay to Merchant any portion remaining due on account via wire transfer the unpaid balance of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions of the Post-Closing ------- Payment as soon as practicable after resolution of such dispute in accordance with Section 5.5 below; or (ii) or, to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to Agent.
; provided, however, that the Inventory Taking shall be reconciled within seven (b7) The days after its completion (and the Agent and Merchant shall use their reasonable best efforts to accomplish such reconciliation); provided further however, that in the event of a dispute with respect to the final inventory report, Agent shall make payments pay that portion of the portion unpaid balance of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday)not in dispute. Any such payment shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any.
(d) All payments by Merchant or to Agent hereunder shall be made by wire transfer of immediately available funds. Merchant agrees that any amounts due by Agent to Merchant pursuant to this Section 3 may in Agent's discretion be offset by the amount of Proceeds collected by Merchant for Agent's account (if any) which have not, as of the applicable date, been transferred by Merchant to Agent in accordance with Sections 7.2 and 7.3 hereof.
Appears in 1 contract
Time of Payments. (a) The On the Sale Commencement Date (the “Payment Date”), Agent shall pay to Merchant 7580% of the estimated Guaranteed Amount attributable to Merchant (the “Guaranteed Amount Deposit”) by wire transfer to the account(s) designated on Exhibit 3.3(a) annexed hereto (the “Merchant Account”). The Guaranteed Amount Deposit shall be based on the estimated Cost Value (as determined in accordance with Section 5.1 of the Agreement) of the Merchandise in the Stores as of on the Sale Commencement Date within two business days after entry by the Bankruptcy Court Clerk Date.
(b) The balance of the Approval OrderGuaranteed Amount (the “Remaining Guaranteed Amount”), shall be paid as follows: Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount, which amount shall be calculated based upon Merchant's good faith estimate paid to the Merchant Account no later than the earlier of (i) the date that is forty five (45) days after the Sale Commencement Date (in which case payment shall be of the value undisputed portion of the balance of the estimated Guaranteed Amount) and (ii) the second business day following the issuance of the Final Inventory Report, and Agent's failure to pay such Merchandise balance or undisputed portion shall entitle the Merchant and GECC to draw upon the Agent Letter of Credit (as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997defined below) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereofsection 3.4 to the extent of such balance or undisputed portion. ThereafterIn the event that after the issuance of the Final Inventory Report as verified and reconciled, the Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the estimated Guaranteed Amount, Agent shall pay the remainder of the Guaranteed Amount to the Merchant within two (2) business days after the Settlement Date, (i) Agent shall pay Final Inventory Report has been issued as verified and reconciled. In the event that there is a dispute with respect to Merchant any portion remaining due on account the reconciliation of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions aggregate Cost Value of the Post-Closing ------- Payment as soon as practicable after resolution of Merchandise following the Inventory Taking, then any such dispute shall be resolved in accordance with Section 5.5 below; or (ii) to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to Agent.
(b) The Agent shall make payments of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise manner and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to times set forth in Section 8.7 below8.6 hereof.
(c) Within two (2) days after completion All amounts required to be paid by Agent or Merchant and Agent under any provision of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if any.
(d) All payments by Merchant or Agent hereunder this Agreement shall be made by wire transfer of immediately available fundsfunds which shall be wired by Agent or Merchant, as applicable, no later than 2:00 p.m. (Eastern Time) on the date that such payment is due; provided, however, that all of the information necessary to complete the wire transfer has been received by Agent or Merchant, as applicable, by 10:00 a.m. (Eastern Time) on the date that such payment is due. In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.
(d) Xxxxxxxx agrees that if at any time during the Sale Term, Xxxxxxxx holds any undisputed amounts due to Agent as Proceeds hereunder, Agent may, in its discretion, offset such Proceeds being held by Merchant against any amounts due and owing to Merchant pursuant to this Section 3.3 or otherwise under this Agreement. In addition, Merchant and Agent further agree that except as provided in the following sentence, if at any time during the Sale Term, Agent holds any undisputed amounts due to Merchant under this Agreement, Agent may, in its discretion, offset such amounts being held by it against any amounts due and owing by, or required to be paid by, Merchant hereunder. Notwithstanding the foregoing or any other provision to the contrary herein, in no event shall Agent offset any amounts against the proceeds realized from the disposition of the Agent Sale FF&E.
(e) If and to the extent that Agent over-funds any amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report, then Xxxxxxxx agrees to promptly reimburse such undisputed overpayment amounts to Agent. To the extent that any over-funded amounts in respect of the Guaranteed Amount based on the results of the Final Inventory Report have been received by GECC and have not been reimbursed by Xxxxxxxx, Agent shall inform GECC by written notice of such overpayment and GECC agrees to disgorge such overpayment to Agent within two (2) business days of such notice.
Appears in 1 contract
Samples: Agency Agreement
Time of Payments. (a) The Agent shall pay Subject to Merchant 75% of the estimated Guaranteed Amount attributable to Merchandise Section 8.8 below, during each week’s reconciliation as provided for in the Stores as of section 8.8 during period between the Sale Commencement Date within two business days after entry by and the Bankruptcy Court Clerk Payment Date (as defined below), Merchant shall collect all of the Approval OrderProceeds of the Sale of Merchandise (the “Interim Sale Proceeds”) and (x) all Interim Sale Proceeds shall first be applied to the payment of Expenses that are incurred during the Interim Sale Period and become due and owing (collectively, which amount the “Interim Sale Period Expenses”) and (y) all remaining Interim Sale Proceeds after payment of Interim Sale Period Expenses (the “Remaining Interim Sale Proceeds”) shall be applied by Merchant against the Guaranteed Amount (collectively, the “Interim Guaranty Installments”) until the Guaranteed Amount shall have been paid in full.
(b) On the first business day following the later of (a) the Sale Commencement Date, or (b) the date that (i) Merchant and Agent execute a security agreement documenting Merchant’s grant of a security interest set forth in Section 16.12 hereof, that is reasonably acceptable to Merchant and Agent (the “Security Agreement”), and (ii) Merchant, Agent and Fleet Retail Group, Inc. (“Fleet”), and S.A.C. Capital Associates, LLC, each as administrative and collateral agent for certain of Merchant’s secured lenders (collectively, the “Lenders”), execute a subordination agreement that is reasonably acceptable to Merchant, Agent and the Lenders, with respect to the Merchandise and the Proceeds from the Sale of such Merchandise (as the case may be, the “Payment Date”), Agent shall pay Merchant eighty percent (80%) of the difference between (x) the estimated Guaranteed Amount, calculated based upon Merchant's good faith estimate the estimated aggregate Retail Price of the value of such Merchandise to be included in the Sale, as of such date as set forth in reflected on Merchant's ’s books and records; such estimate to be based records on Merchant's HW fourth week the last business day immediately preceding the Sale Commencement Date, and after applying the Global Inventory Adjustment (October 25, 1997the “Estimated Guaranteed Amount”) report, rolled forward to include projected sales and receipts (y) the aggregate amount of goods through such date and adjusted to reflect anticipated writedowns the Interim Guaranty Installments applied by Merchant towards the Estimated Guaranteed Amount in accordance with Section 5.3 3.3(a) hereof (such difference hereinafter, the “Payment Date Installment”, and together with the Interim Guaranty Installments, the “Initial Guaranty Payment”).
(c) The balance of the Guaranteed Amount, if any, or of the Estimated Guaranteed Amount shall be paid by Agent to Merchant by delivering such amounts to Fleet for Merchant’s account, on the date that is the earlier of (i) ten (10) days after the last Sale Termination Date in the Stores (in which case payment shall be of the balance of the Estimated Guaranteed Amount) (the “Final Payment Date”), and (ii) the first business day following the issuance of the final audited report of the aggregate Retail Price of the Merchandise calculated by the Gross Rings, after verification and reconciliation thereof by Agent and Merchant (the “Final Gross Rings Report”) and Agent’s failure to pay such balance shall entitle Fleet to draw upon the Agent Letter of Credit to the extent of such balance; provided, however, Merchant and Agent shall use their reasonable best efforts to reconcile and verify the Final Gross Rings Report within seven (7) days after the last Sale Termination Date in the Stores. In the event there is any dispute with respect to the reconciliation of the aggregate Retail Price of the Merchandise following the Gross Rings, then any such dispute shall be resolved in the manner and at the times set forth in Section 3.4(b) hereof. ThereafterIn the event that the Final Gross Rings Report is issued after payment of the Estimated Guaranteed Amount, the Agent or Merchant, as the case may be, shall pay to the Merchant or Agent, as the case may be, the amount (the “Adjustment Amount”) by which the actual Guaranteed Amount exceeds or is less than the Estimated Guaranteed Amount actually paid as set forth above, within two (2) business days after the Settlement Date, (i) Agent shall pay to Merchant any portion remaining due on account of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions of the Post-Closing ------- Payment as soon as practicable after resolution of such dispute in accordance with Section 5.5 below; or (ii) to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to Agent.
(b) The Agent shall make payments of the portion of the Guaranteed Amount attributable to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 below, Agent shall pay to Merchant the Merchant's Recovery Amount due hereunder, if anyFinal Gross Rings Report has been issued.
(d) Within ten (10) business days after the Sale Commencement Date, Agent shall establish its own bank accounts, dedicated solely for the deposit of Proceeds and the disbursement of amounts payable by Agent hereunder, which accounts may be the Designated Merchant Accounts so long as Merchant, Agent and the Lenders agree on an appropriate protocol for such use and remittance of Proceeds (the “Agency Accounts”). Merchant shall, promptly upon Agent’s request, execute and deliver all necessary documents to open and maintain the Agency Accounts. Agent shall exercise sole signatory authority and control with respect to the Agency Accounts; provided however, upon request, Agent shall deliver to Merchant copies of all bank statements and other information relating to such accounts. Merchant shall not be responsible for, and Agent shall pay as an Expense hereunder, all bank fees and charges, including wire transfer charges, related to the Agency Accounts and or Designated Merchant Accounts, whether received during or after the Sale Term. Upon Agent’s designation of the Agency Accounts, all Proceeds of the Sale (including credit card proceeds) shall be deposited into the Agency Accounts. During the period between the Sale Commencement Date and the later of (a) the Payment Date or (b) the date Agent designates the Agency Accounts, all Proceeds of the Sale (including credit card proceeds), shall be collected by Agent and deposited on a daily basis into Merchant’s existing accounts designated for the Stores (the “Designated Merchant Accounts”). Commencing on the first business day following the Payment Date, and on each business day thereafter (or as soon thereafter as is practicable), until such time as Agent designates the Agency Accounts, Merchant shall promptly pay to Agent by wire funds transfer all collected funds constituting Proceeds deposited in such accounts (but not any other funds, including, without limitation, any proceeds of Merchant’s inventory sold prior to the Sale Commencement Date or at any of Merchant’s retail store locations not included on Exhibit 1 hereto, or collections of accounts receivable at the Store level, if any). During this interim period, Agent shall control the Proceeds of the Sale, and, provided no Event of Default by Agent has occurred and is continuing, the Lenders shall not take any action with respect to such Proceeds deposited into the Designated Merchant Accounts, which shall inure solely for the benefit of Agent, subject only to Agent’s payment obligations hereunder.
(e) Agent shall be permitted to satisfy a portion of its payment obligations under this Section 3.3 by offsetting undisputed Proceeds held by Merchant against such payment obligations; provided, however, nothing contained in this Section 3.3(d) shall be deemed to amend, modify or otherwise affect the timing of Agent’s obligations to pay the Guaranteed Amount or the estimated balance of the Guaranteed Amount pursuant to Section 3.3(a).
(f) All payments by Merchant to Agent or Agent to Merchant hereunder shall be by wire transfer of immediately available funds.
(g) To the extent that the Final Gross Rings Reconciliation provided for below shows that the Initial Guaranty Payment exceeded the amount due Merchant in respect of the Guaranteed Amount, then (i) Merchant shall cause any overpayment to be immediately refunded to Agent, and (ii) if such overpayment was received by the Lenders, then, notwithstanding any other rights or claims that the Lenders may have against Merchant, the Lenders shall immediately refund such overpayment to Agent.
Appears in 1 contract
Samples: Agency Agreement (Wet Seal Inc)
Time of Payments. Immediately following the weekly Store Closing Sale reconciliation by Merchant and Agent pursuant to Section 8.8 below, until the Guaranteed Amount has been paid in full, Merchant shall retain the Proceeds from sales of Merchandise during the prior week (ai.e., Sunday through Saturday) The less the Expenses incurred during such week (the “Weekly Net Proceeds”), which Weekly Net Proceeds shall be applied to and credited against the Guaranteed Amount. After the amount of Weekly Net Proceeds applied and credited against the Guaranteed Amount equals the Guaranteed Amount, all Weekly Net Proceeds collected by Merchant shall be paid by Merchant to Agent. Any Expenses incurred directly by Agent shall pay be paid by Merchant to Merchant 75% Agent by wire transfer of the estimated immediately available funds on such weekly basis. The Guaranteed Amount attributable to Merchandise in the Stores as of the Sale Commencement Date within two business days after entry by the Bankruptcy Court Clerk of the Approval Order, which amount shall be calculated based upon Merchant's good faith estimate of the value of such Merchandise as of such date as set forth in Merchant's books and records; such estimate to be based on Merchant's HW fourth week (October 25, 1997) report, rolled forward to include projected sales and receipts of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafter, within two (2) business days after the Settlement Date, (i) Agent shall pay to Merchant any portion remaining due on account of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions of the Post-Closing ------- Payment as soon as practicable after resolution of such dispute in accordance with Section 5.5 below; or (ii) to the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds the actual Guaranteed Amount, Merchant shall immediately reimburse such excess to Agent.
(b) The Agent shall make payments of the portion of the Guaranteed Amount attributable to On Order Transfer Merchandise, Returned Warehouse Merchandise and Repair Returned Merchandise received at the Stores after the Inventory Cutoff Date shall be reconciled on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following the weekly Store Closing Sale reconciliation by Merchant and Agent pursuant to Section 8.7 8.8 below.
. Within ten (c) Within two (210) days after completion by Merchant and Agent of the final Store Closing Sale reconciliation pursuant to Section 8.7 8.8 below, Agent shall pay to Merchant any unpaid portion of the Merchant's Guaranteed Amount and the Recovery Amount due hereunder, if any.
(d) . All payments by Merchant to Agent or Agent to Merchant hereunder shall be by wire transfer of immediately available funds; provided, however, Merchant agrees that any amounts due by Agent to Merchant pursuant to this Section 3 may in Agent’s discretion be offset by the amount of Proceeds which have not, as of the applicable date of payment by Agent to Merchant, been transferred by Merchant to Agent.
Appears in 1 contract
Time of Payments. (a) The No later than two (2) business days after the later of (x) entry of the Approval Order and (y) execution hereof (the "Payment Date"), Agent shall pay to Merchant seventy-five percent (75% %) of the estimated Guaranteed Amount attributable (the "Guaranteed Amount Deposit") in cash, which amount shall be wired to the account to be designated by the Merchant. Agent shall calculate the amount of the Guaranteed Amount Deposit based upon the Cost Value of the Merchandise in the Stores as of the Sale Commencement Date within two business days after entry by the Bankruptcy Court Clerk of the Approval Order, which amount shall be calculated based upon Merchant's good faith estimate of the value of such Merchandise as of such date as set forth reflected in Merchant's books and records; records (the "Estimated Guarantee Amount"). Agent shall pay the unpaid and undisputed balance of the Guaranteed Amount in cash to Merchant no later than the earlier of (i) the date ten (10) business days after the Sale Commencement Date (in which case payment shall be of the undisputed portion of the balance of the Estimated Guaranteed Amount) and (ii) the second business day following the issuance of the audit report of the aggregate Cost Value of the Merchandise by the Inventory Taking Service, after verification thereof by the Agent and the Merchant (the "Inventory Report"), and the Agent's failure to pay such estimate balance or undisputed portion shall entitle the Lender Agent on behalf of the Merchant may draw upon the Agent Letter of Credit (as defined below) to the extent of such balance or undisputed portion. To the extent that the Merchant is entitled to receive a Recovery Amount from Proceeds, such Recovery Amount shall be based on Merchant's HW fourth week (October 25paid to the Merchant as earned weekly. In the event that after the issuance of the Inventory Report, 1997) reportthe Guaranteed Amount is greater than the sum of the Guaranteed Amount Deposit plus the payment of the undisputed portion of the Estimated Guaranteed Amount, rolled forward the Agent shall pay the remainder of the Guaranteed Amount to include projected sales and receipts the Lender Agent for the benefit of goods through such date and adjusted to reflect anticipated writedowns in accordance with Section 5.3 hereof. Thereafter, the Merchant within two (2) business days after the Settlement Date, (i) Agent shall pay Inventory Report has been issued. In the event there is a dispute with respect to Merchant any portion remaining due on account the reconciliation of the Guaranteed Amount (the "Post-Closing ------------ Payment"). Agent shall pay to Merchant any disputed portions aggregate Cost Value of the Post-Closing ------- Payment as soon as practicable after resolution of Merchandise following the Inventory Taking, then any such dispute shall be resolved in accordance with the manner and at the times set forth in Section 5.5 below; or (ii) to 3.6 hereof. To the extent that Agent's payment on account of the estimated Guaranteed Amount exceeds Final Reconciliation as provided for below shows that the actual Agent has overpaid the Guaranteed Amount, Merchant then the Merchant, the Lenders and the Lenders Agent, shall cause any overpayment to be immediately reimburse such excess refunded to Agent.
(b) The Agent shall make payments To secure payment of the unpaid portion of the Guaranteed Amount attributable and any other amounts due from Agent to On Order Merchandise, Returned Merchandise and Repair Merchandise received at the Stores after the Inventory Date on a weekly basis for all such items received during the prior week (i.e., Sunday through Saturday). Any such payment shall be made immediately following the weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.7 below.
(c) Within two (2) days after completion by Merchant and Agent of the final Sale reconciliation pursuant to Section 8.7 belowhereunder, Agent shall pay deliver to Merchant an irrevocable standby letter of credit, naming those parties to be designated by the Merchant's Recovery Amount due hereunderMerchant (the "x") as beneficiary, if any.
(d) All payments by Merchant or Agent hereunder shall be by wire transfer substantially in the form of immediately available funds.Exhibit 3.3
Appears in 1 contract
Samples: Agency Agreement (Friedmans Inc)
