Merger Consolidation and Disposition of Assets None of the Borrower, MCRC, any Operating Subsidiary, any Property Owning Subsidiary that owns any Real Estate that the Borrower has elected to treat as an Unencumbered Property or any wholly-owned Subsidiary will:
(a) Become a party to any merger, consolidation or reorganization without the prior Unanimous Lender Approval, except that so long as no Default or Event of Default has occurred and is continuing, or would occur after giving effect thereto, the merger, consolidation or reorganization of one or more Persons with and into the Borrower, MCRC, any Property Owning Subsidiary, or any wholly-owned Subsidiary, shall be permitted if (i) such action is not hostile, (ii) the Borrower, MCRC, any Property Owning Subsidiary, or any wholly owned Subsidiary, as the case may be, is the surviving entity or such merger, consolidation or reorganization involves only MCRC and its Affiliates and is done in connection with an MCRC Organizational Change otherwise permitted under this Agreement, and (iii) such merger, consolidation or reorganization does not cause a Default or Event of Default under §12.1(m) hereof; provided, that for any such merger, consolidation or reorganization (other than (v) the merger or consolidation of one or more Affiliates of MCRC with and into MCRC, or of MCRC into such Affiliate, in either case in connection with an MCRC Organizational Change otherwise permitted under this Agreement, (w) the merger or consolidation of one or more Subsidiaries of MCRLP with and into MCRLP, (x) the merger or consolidation of two or more Subsidiaries of MCRLP, (y) the merger or consolidation of one or more Subsidiaries of MCRC with and into MCRC, or (z) the merger or consolidation of two or more Subsidiaries of MCRC), the Borrower shall provide to the Administrative Agent a statement in the form of Exhibit D hereto signed by the chief financial officer or senior vice president of finance or other thereon designated officer of the Borrower and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §9 hereof and certifying that no Default or Event of Default has occurred and is continuing, or would occur and be continuing after giving effect to such merger, consolidation or reorganization and all liabilities, fixed or contingent, pursuant thereto;
(b) Sell, transfer or otherwise dispose of (collectively and individually, “Sell” or a “Sale”) or ▇▇▇▇▇ ▇ ▇▇▇▇ to secure Indebtedness (an “Indebtedness Lien”) on any of its now owned, ground leased or hereafter acquired assets without obtaining the prior written consent of the Required Lenders, except for:
Mergers, Consolidations Sales of Assets and -------------------------------------------- Acquisitions.
(a) JCPenney shall not consolidate with or merge into any other ------------- corporation or convey or transfer its properties and assets substantially as an entirety to any person, unless:
(i) the corporation formed by such consolidation or into which JCPenney is merged or the person which acquires by conveyance or transfer the properties and assets of JCPenney substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America or any State or the District of Columbia, and shall expressly assume, by an instrument in writing (delivered to the Lenders) the due and punctual payment of the principal and interest, if any, on all the Loans and all other amounts payable by JCPenney under this Agreement and all the rights, interests and other obligations of JCPenney under this Agreement;
(ii) immediately after giving effect to such transaction, (x) the representations and warranties set forth in Article III shall be true and correct in all material respects on the date of such transaction with the same effect as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date and (y) no Event of Default or Default shall have occurred and be continuing; and
(iii) JCPenney shall have delivered an Officer's Certificate stating that such consolidation, merger, conveyance or transfer and such written instrument comply with this Section 6.04(a); provided that JCPenney and the Subsidiaries will be permitted to sell, transfer -------- and otherwise dispose of Unrestricted Margin Stock without regard to the foregoing restrictions.
(b) Funding shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any person, except that Funding may merge into JCPenney or a direct or indirect wholly-owned Subsidiary of JCPenney subject to the satisfaction of the following conditions:
(i) the corporation formed by such consolidation or into which Funding is merged or the person which acquires by conveyance or transfer the properties and assets of Funding substantially as an entirety shall expressly assume, by an instrument in writing (delivered to the Lenders) the due and punctual payment of the principal and interest, if any, on all the Loans and all other amounts payable by Funding under this Agreement and all the rights, interests and other obligations of Funding under this Agreement;
(ii) immediately after giving effect to such transaction, (x) the representations and warranties set forth in Article III shall be true and correct in all material respects on the date of such transaction with the same effect as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date and (y) no Event of Default or Default shall have occurred and be continuing; and
(iii) Funding shall have delivered an Officer's Certificate stating that such consolidation, merger, conveyance or transfer and such written instrument comply with this Section 6.04(b).
Sale of Assets, Consolidation, Merger, Dissolution, Etc Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly.
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; or
(i) sales of Inventory in the ordinary course of business,
(ii) the sale of any of the Bedford Real Estate; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) as of the date of such sale and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (A) at the time of the grant of the license and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (B) the rights of the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower or Guarantor from such sale, (B) Borrower or Guarantor shall not be required to pay any dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, unless otherwise permitted in Section 8.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that limit the right of Borrower to request or receive Loans or Letter of Credit Accommodations or to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine and (E) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Liquidations, Mergers, Consolidations, Acquisitions Holdings shall not, and shall not permit any of its Material Subsidiaries to, dissolve, liquidate, or wind-up its affairs, or become a party to any amalgamation, merger or consolidation, or acquire by purchase, lease, or otherwise all or substantially all of the assets or capital stock of or other ownership interest in any other Person, provided that
(1) any Material Subsidiary may consolidate, amalgamate or merge into Holdings or any other Material Subsidiary provided that the Company may not merge, amalgamate or consolidate with Holdings, and the Company may only merge, amalgamate or consolidate with another Material Subsidiary if the Company is the surviving entity of such merger, amalgamation or consolidation; and
(2) Holdings or any Material Subsidiary may acquire, whether by purchase, by amalgamation or by merger, (A) all of the ownership interests of another Person or (B) substantially all of the assets of another Person or of a business or division of another Person (each a “Permitted Acquisition”), provided that each of the following requirements is met:
(i) if Holdings or any Material Subsidiary is acquiring the ownership interests in such Person and such Person meets the criteria for a Material Subsidiary set forth in the definition of such term at Section 1.01, such Person shall execute a Guarantor Joinder and join this Agreement as a Guarantor pursuant to Section 10.18 [Joinder of Guarantors] on or before the date of such Permitted Acquisition;
(ii) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and Holdings or the relevant Material Subsidiary shall have delivered to the Banks written evidence of such approval of the board of directors (or equivalent body) of such Person for such Permitted Acquisition;
(iii) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as, or otherwise complementary or related to, one or more lines of business conducted by Holdings or any Material Subsidiary, or otherwise incidental to the business of a financial services company, and shall comply with Section 7.02(j) [Continuation of or Change in Business];
(iv) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition; and
(v) upon the reasonable request of Agent, Holdings or the relevant Material Subsidiary shall deliver to the Agent at least five (5) Business Days before such Permitted Acquisition such information about such Person or its assets as Agent may reasonably require.
Mergers, Consolidations and Sales Except with the prior written consent of the Required Lenders (which shall not be unreasonably withheld, conditioned or delayed), the Borrower shall not, nor shall it permit Whitestone REIT or any Subsidiary to, effect any merger or consolidation, or sell, transfer, lease or otherwise dispose of all or any part of its Property, including any disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount (with or without recourse) any of its notes or accounts receivable; provided, however, so long as no Default or Event of Default then exist, this Section shall not apply to nor operate to prevent:
(a) the sale, transfer, lease or other disposition of Property of the Borrower and its Subsidiaries to one another in the ordinary course of its business;
(b) sales of shares of capital stock or other equity interests by Borrower or Whitesone REIT, so long as no Change of Control results therefrom;
(c) the merger of any Subsidiary with and into the Borrower or any other Subsidiary, provided that, in the case of any merger involving the Borrower, the Borrower is the entity surviving the merger;
(d) the sale, transfer or other disposition of any tangible personal property that, in the reasonable business judgment of the Borrower or its Subsidiary, has become obsolete or worn out, and which is disposed of in the ordinary course of business;
(e) the sale, transfer, lease or other disposition of Property of the Borrower or any Subsidiary (including any disposition of Property as part of a sale and leaseback transaction) aggregating not more than 20% of the Total Asset Value of the Borrower for all such transactions after the date of this Agreement;
(f) any merger if it results in the simultaneous payoff in immediately available funds of the Obligations; and
(g) the merger or consolidation of the Borrower with another Person not otherwise permitted under clauses (c) and (f) above, so long as (i) the Borrower is the surviving entity, (ii) the Borrower has delivered evidence reasonably satisfactory to the Administrative Agent that it will be in pro forma compliance with all provisions of this Agreement upon and after such merger or consolidation and (iii) the Borrower will not engage in any material line of business substantially different from that engaged in on the Closing Date.