Common use of Alternative Structure Clause in Contracts

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (A) at any time prior to the date the definitive Proxy Statement is first mailed to the stockholders of the Company in connection with the Company Stockholders Meeting, or (B) or otherwise with the prior written consent of the Company (which shall not be unreasonably withheld or delayed), Parent, in its sole discretion, may elect to modify the structure of the Merger so as to provide that the Company shall merge with and into Parent (rather than Merger Sub), with Parent continuing as the surviving corporation of the Merger (the “Alternative Structure”); provided that (a) the consideration to be paid to the stockholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, or (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, (c) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, and (d) such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, impede or delay the consummation of the transactions contemplated by this Agreement. In the event that Parent elects to implement the Alternative Structure, the parties agree, in good faith, to prepare and execute an amendment to this Agreement to reflect the Alternative Structure and any necessary modifications to the terms of the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger, the Surviving Corporation and such terms impacted thereby).

Alternative Structure. Notwithstanding anything (a) The parties agree that in the event issues arise that could reasonably be expected to prevent the contrary contained in this Agreement, (A) at parties from obtaining the Required Minority Equity Holder Approvals or the Required Regulatory Approvals with respect to any time Acquired Company prior to the date Non-Transferred Company Determination Date with respect to such Acquired Company (an “Alternative Structure Event”), Purchaser and Sellers, subject, in the definitive Proxy Statement is first mailed case of Sellers, to the stockholders Minority Equity Holder Rights, and in all cases, to the avoidance of Initial Closing Legal Prohibitions or Subsequent Closing Legal Prohibitions, as applicable, shall continue to use best efforts, and proceed expeditiously and in good faith, to consummate the purchase, sale and other transactions contemplated hereunder with respect to each Acquired Company. Without limiting the generality of the Company foregoing, in connection the event of an Alternative Structure Event, the parties shall use best efforts, and proceed expeditiously and in good faith, to restructure the form of the transactions contemplated hereby in order to proceed with the Company Stockholders Meeting, or (B) or otherwise with the prior written consent of the Company (which shall not be unreasonably withheld or delayed), Parent, in its sole discretion, may elect to modify the structure of the Merger so as to provide that the Company shall merge with and into Parent (rather than Merger Sub), with Parent continuing as the surviving corporation of the Merger (the “Alternative Structure”); provided that (a) the consideration to be paid to the stockholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, or (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, (c) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, and (d) such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, impede or delay the consummation substance of the transactions contemplated by this Agreement pursuant to such alternative structures and transactions which would have a materially improved chance of completion and which may be accomplished in a manner that preserves the allocation of benefits, opportunities, costs, responsibilities, liabilities and net economic benefit of the transactions contemplated hereby to Purchaser and Sellers (taking into account the effect of Taxes) and for consideration equal to the consideration allocated to the transactions pursuant to Section 2.2 of the Agreement. . (b) In furtherance of the foregoing, an Acquired Company shall be deemed to be a “Section 6.29 Retained Company” upon the earliest to occur of (the “Section 6.29 Retained Company Determination Date”) (i) the date upon which Sellers provide written notice to Purchaser that Sellers have determined in good faith that, despite the parties’ compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions to closing set forth in Section 7.1(b) and (c) (in the case of the Initial Closing) or Section 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably likely to be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in the last sentence of Section 6.29(a), (ii) the date upon which Sellers and Purchaser mutually agree that, despite each party’s compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the conditions to closing set forth in Section 7.1(b) and (c) (in the case of the Initial Closing) or Section 7.4(a)(ii) and (iii) (in the case of a Subsequent Closing) with respect to such Acquired Company are not reasonably likely to be satisfied as of the Non-Transferred Company Determination Date and (B) the parties are unable to agree upon alternative structures and transactions as contemplated in the last sentence of Section 6.29(a) and (iii) the Non-Transferred Company Determination Date, if the Initial Closing or Subsequent Closing, as the case may be, does not occur with respect to such Acquired Company because, despite each party’s compliance with all of the covenants and obligations contained in this Agreement to be performed and complied with by it prior to the Initial Closing or any Subsequent Closing, as applicable, related to such Acquired Company, as of such date, (A) one or both of the conditions to Closing set forth in Sections 7.1(b) and (c), with respect to an Initial Closing, or Section 7.4(a)(ii) and (iii), with respect to any Subsequent Closing, were not satisfied and (B) the parties were unable to agree upon alternative structures and transactions as contemplated in the last sentence of Section 6.29(a). (c) In the event that Parent elects to implement the Alternative Structureany Acquired Company becomes a Section 6.29 Retained Company, (i) the parties agree, in good faith, shall nevertheless be obligated to prepare consummate the Initial Closing and execute an amendment to any Subsequent Closing and the other transactions contemplated by this Agreement except with respect to reflect any such Section 6.29 Retained Company (or any Retained Company or ROFR Company), (ii) the Alternative Structure applicable Seller will retain and continue to hold and own its Seller Equity Interests or Holding Company Equity Interests relating to, and any necessary modifications to Sellers Stockholder Debt with regard to, any such Section 6.29 Retained Company, (iii) the terms Sellers Equity Interests of the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger, the Surviving Corporation and such terms impacted thereby).any such

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (A) at any time if (i) Realty Income uses reasonable best efforts to obtain the Realty Income Credit Agreement Amendment as promptly as practicable after the date hereof, and (ii) Realty Income has not obtained the Realty Income Credit Agreement Amendment by the date that is fifteen (15) Business Days prior to the date the definitive Proxy Statement is first mailed to the stockholders earlier of the Company in connection with date of the Company VEREIT Stockholders Meeting and the Realty Income Stockholders Meeting, or (B) or otherwise with the prior written consent of the Company VEREIT (which shall not be unreasonably withheld or delayed), ParentRealty Income, in its sole discretion, may elect to modify the structure of the Merger so as to provide that the Company VEREIT shall merge with into and into Parent Realty Income (rather than Merger SubSub 1), with Parent Realty Income continuing as the surviving corporation of the Merger (the “Alternative Structure”); provided that (a) the consideration to be paid to the stockholders of the Company VEREIT is not thereby changed in nature or kind or reduced in amount as a result of such modification, (b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of the Company Realty Income or VEREIT as a result of the Merger or payment or receipt of the Merger Consideration, or (2) the qualification and taxation of the Company VEREIT as a REIT for federal income tax purposes for any period prior to the Closingperiod, and (c) other than the merger contemplated by such Alternative Structure shall not modification to the Realty Income Required Stockholders Vote to require the approval a majority of the shareholders outstanding shares of Parent to be consummatedRealty Income Common Stock as a result of the Alternative Structure, and (d) such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, impede or materially delay the consummation of the transactions contemplated by this Agreement. In the event that Parent Realty Income elects to implement the Alternative Structure, the parties agree, in good faith, to prepare and execute an amendment to this Agreement to reflect the Alternative Structure and any necessary modifications to the terms of the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger, the Surviving Corporation Corporation, the Realty Income Required Stockholders Vote and the Realty Income Stock Issuance and such terms impacted thereby).

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (A) at any time prior to the date the definitive Proxy Statement is first mailed to the stockholders of the Company in connection with the Company Stockholders MeetingHoldings Merger Effective Time, or (B) or otherwise with the prior written consent of the Company (which shall not be unreasonably withheld or delayed), Parent, in its sole discretion, Parent I may elect to modify specify that the structure of the Merger so transactions contemplated by this Agreement be revised and the Parties shall enter into such alternative transactions as Parent I may reasonably determine to provide effect the purposes of this Agreement; provided, however, that no such revision shall be required pursuant to this Section 2.15 if, in the Company shall merge with and into Parent (rather than Merger Sub), with Parent continuing as the surviving corporation reasonable determination of the Merger (the “Alternative Structure”); provided that Company, such revision would reasonably be expected to (a) alter or change the amount or kind of the consideration to be paid payable to the stockholders of Company’s Stockholders or the Holdings Unitholders pursuant to this Article II, or otherwise change the economic benefits that are intended to accrue to the Company is not thereby changed in nature Stockholders or kind or reduced in amount as a result the Holdings Unitholders pursuant to the terms of such modificationthis Agreement and the transactions contemplated hereby, (b) the Alternative Structure will not adversely affect (1) the tax treatment to the stockholders of the Company as a result of the Merger or payment or receipt of the Merger Considerationprevent, or (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, (c) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, and (d) such Alternative Structure (after giving effect to the following sentence) will not and, will not reasonably be expected to, jeopardize, materially impede or materially delay the consummation of the transactions contemplated by this Agreement, including the Equity Financing and the Closing, (c) fail to comply with the terms of the Indenture or the Capped Call Documentation, or (d) result in any adverse tax consequences for any of the Holdings Unitholders or Company Stockholders; provided, however, that in no event shall any such revision be required pursuant to this Section 2.15 on or after the date that the Proxy Statement becomes definitive if in the reasonable determination of the Company, such revision would require an update or revision to the Proxy Statement or a resubmission of this Merger Agreement or the transactions contemplated by this Agreement to the Company Stockholders for the purpose of obtaining the Requisite Stockholder Approval. In the event that the Parent elects Entities elect to implement the Alternative Structuremake such a revision, the parties agree, in good faith, Parties agree to prepare and execute an amendment to this Agreement appropriate documents to reflect the Alternative Structure and any necessary modifications to the terms of the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger, the Surviving Corporation and such terms impacted thereby)revised structure.