ROOM CONSOLIDATION Residence assignments shall be consolidated when vacancies occur in any residence facility, to minimize the number of rooms, suites, and/or apartments not at full occupancy. The Student may be required to change residence assignment and move to facilitate room consolidation. Residents in rooms/apartments/suites not at full capacity may be charged additional rent as determined by UCF DHRL.
Mergers, Consolidations, Sales Not, and not permit any Subsidiary to,
(a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and
Mergers, Consolidations, Etc The Company will not consolidate with or merge with any other Person or convey, transfer, sell or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless:
(a) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer, sale or lease all or substantially all of the assets of the Company as an entirety, as the case may be, is a solvent corporation or limited liability company organized and existing under the laws of the United States or any state thereof (including the District of Columbia), and, if the Company is not such successor or survivor, such successor or survivor (i) shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes and (ii) shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof;
(b) each Subsidiary Guarantor and each Obligor (other than the Company) shall have affirmed in writing its obligations under the Subsidiary Guaranty to which it is a party or this Agreement and the Notes, as the case may be (unless and to the extent any such Subsidiary Guaranty or the obligations of any such Obligor, as the case may be, have been discharged or released as expressly permitted by Section 2.2(a) or otherwise in accordance with the terms of this Agreement); and
(c) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing, including, without limitation, under Sections 10.1, 10.2 and 10.3, with any calculation of compliance therewith to be made as of the end of the immediately preceding fiscal quarter after giving pro forma effect to the consummation of such transaction.
Mergers, Consolidations or Sales No Loan Party shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except:
(a) (i) sales of Inventory in the ordinary course of its business, and (ii) sales of excess Inventory not in the ordinary course of its business as permitted by the First Lien Credit Agreement;
(b) (i) sales or other dispositions of Equipment of the Parent or the Subsidiaries in the ordinary course of business that are obsolete or no longer useable on a commercially reasonable basis by any such Person in its business, and (ii) so long as no Default or Event of Default has occurred and is continuing, the sale of Equipment by a Borrower to another Borrower and the sale of Equipment by a Guarantor to another Borrower Party. All proceeds of a sale or disposition under clause (i) or (ii) above, after payment of reasonable selling costs, shall be deposited in a Payment Account. All Equipment purchased with such proceeds shall be free and clear of all Liens, except the Agent's Liens;
(c) the merger of a Borrower into another Borrower so long as (i) no Default or Event of Default has occurred and is continuing or would be caused thereby, (ii) the Borrower Parties provide the Agent with ten (10) days prior written notice of such merger, (iii) in the event of a merger involving the Parent, the Parent shall be the surviving Person, and (iv) contemporaneously with such merger, the Borrower Parties deliver to the Agent all documents reasonably requested by the Agent to continue the Agent's Liens on the Collateral, in each case, in form and substance satisfactory to the Agent, including, without limitation, such pledge agreements, new stock certificates and stock powers, financing statements or other documents as shall be reasonably requested by the Agent;
(d) the merger of a Guarantor into another Guarantor so long as (i) no Default or Event of Default has occurred and is continuing or would be caused thereby, (ii) the Borrower Parties provide the Agent with ten (10) days prior written notice of such merger, and (iii) contemporaneously with such merger, the Borrower Parties deliver to the Agent all documents reasonably requested by the Agent to continue the Agent's Liens on the Collateral, in each case, in form and substance satisfactory to the Agent, including, without limitation, such pledge agreements, new stock certificates and stock powers, financing statements or other documents as shall be reasonably requested by the Agent; and
(e) the merger of a Guarantor into a Borrower so long as (i) no Default or Event of Default has occurred and is continuing or would be caused thereby, (ii) the applicable Borrower shall be the surviving Person, (iii) the Borrower Parties provide the Agent with ten (10) days prior written notice of such merger, and (iv) contemporaneously with such merger, the Borrower Parties deliver to the Agent all documents reasonably requested by the Agent to continue the Agent's Liens on the Collateral, in each case, in form and substance satisfactory to the Agent, including, without limitation, such pledge agreements, new stock certificates and stock powers, financing statements or other documents as shall be reasonably requested by the Agent;
(f) Permitted Acquisitions;
(g) disposition of other assets having a fair market value not to exceed $2,000,000 during any Fiscal Year or $7,000,000 in the aggregate during the term of this Agreement;
(h) disposition of Real Estate acquired in connection with the acquisition of Toastmaster Inc. set forth on Schedule 7.9 and any of the personal property (except Inventory) located thereon; and
(i) disposition of Proprietary Rights to a Subsidiary of any Borrower Party; provided, that prior to the consummation of any such disposition, the Agent shall be satisfied in its sole discretion of the continued second lien priority and validity of the Agent's Lien in all such Proprietary Rights.
Merger and Consolidation (a) The Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets, in one transaction or a series of related transactions, to any Person, unless:
(A) the Borrower is the surviving Person or the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized or existing under the laws of the jurisdiction of the Borrower or the United States of America, any State of the United States or the District of Columbia or any territory thereof and the Successor Company (if not the Borrower) will expressly assume all the obligations of the Borrower under the Loan Documents;
(B) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the applicable Successor Company or any Subsidiary of the applicable Successor Company as a result of such transaction as having been incurred by the applicable Successor Company or such Subsidiary at the time of such transaction), no Event of Default shall have occurred and be continuing;
(C) immediately after giving pro forma effect to such transaction, either (a) the applicable Successor Company would be able to incur at least an additional $1.00 of Indebtedness pursuant to Section 7.03(a), or (b) the Consolidated Total Leverage Ratio of the Borrower and its Restricted Subsidiaries would not be higher than it was immediately prior to giving effect to such transaction;
(D) to the extent any assets of the Person which is merged or consolidated with or into the Borrower are assets of the type which would constitute Collateral under the Collateral Documents, the Borrower or the Successor Company, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Collateral Documents in the manner and to the extent required in this Agreement or the applicable Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Collateral Documents; and
(E) the Administrative Agent and Revolver Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act reasonably requested by the Lenders.
(b) [Reserved]
(c) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, and the Borrower will automatically and unconditionally be released and discharged from its obligations under this Agreement (except in the case of a lease).
(d) [Reserved].
(e) Notwithstanding any other provision of this Section 7.04, (i) the Borrower may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor, (ii) the Borrower may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Borrower, reincorporating the Borrower in another jurisdiction, or changing the legal form of the Borrower, (iii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Borrower or a Guarantor, (iv) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary and (v) the Borrower and its Restricted Subsidiaries may complete any Permitted Intercompany Activities, Permitted Tax Restructuring or related transactions; provided, that the entity that is surviving or the resulting, surviving or transferee entity will be an entity organized or existing under the laws of the jurisdiction of the Borrower or the United States of America, any State of the United States or the District of Columbia or any territory thereof.
(f) The foregoing provisions (other than the requirements of Section 7.04(a)(B)) shall not apply to the creation of a new Subsidiary as a Restricted Subsidiary of the Borrower.
(g) Subject to certain limitations described herein governing release of a Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor may consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets, in one or a series of related transactions, to any Person, unless:
(i) (A) the other Person is the Borrower or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with such transactions; or either (x) the Borrower or a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all the obligations of the Guarantor under its Guarantee of the Secured Obligations, this Agreement and the Collateral Documents; and
Mergers, Consolidations Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) the merger of any Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization).
Merger, Consolidation, Etc The Issuer will not, and will not permit the Parent to, consolidate with or merge with any other Person or convey, transfer or lease (as lessor) all or substantially all of its assets in a single transaction or series of transactions to any Person except:
(a) the Parent may consolidate with or merge with, or convey, transfer or lease all or substantially all of its assets in a single transaction or series of related transactions to, any other Person if (i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Parent as an entirety, as the case may be (the “Surviving Parent”), shall be a solvent corporation, business, trust, limited partnership or limited liability company organized and existing under the laws of the United States of America or any state thereof (including the District of Columbia), (ii) if the Parent is not the Surviving Parent, such Surviving Parent shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement to be performed or observed by the Parent, (iii) such Surviving Parent shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof, (iv) each of the Subsidiary Guarantors shall have confirmed and ratified in writing reasonably satisfactory to the Required Holders its obligations under its Subsidiary Guaranty, and (v) immediately before and after giving effect to any such transaction, no Default or Event of Default shall have occurred and be continuing; and
(b) the Issuer may consolidate with or merge with, or convey, transfer or lease all or substantially all of its assets in a single transaction or series of related transactions to, any other Person if (i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Issuer as an entirety, as the case may be (the “Surviving Company”), shall be a solvent corporation, business trust, limited partnership or limited liability company organized and existing under the laws of the United States of America or any state thereof (including the District of Columbia), (ii) if the Issuer is not the Surviving Company, the Surviving Company shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of the this Agreement and the Notes to be performed or observed by the Issuer, (iii) such Surviving Company shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof, (iv) each of the Parent and the Subsidiary Guarantors shall have confirmed and ratified in writing reasonably satisfactory to the Required Holders its obligations under the Parent Guaranty and Subsidiary Guaranty, respectively, and (v) immediately before and after giving effect to any such transaction, no Default or Event of Default shall have occurred and be continuing. No such conveyance, transfer or lease of all or substantially all of the assets of the Parent or the Issuer shall have the effect of releasing the Parent, the Issuer or any Surviving Parent or Surviving Company or any other Person that becomes the surviving or continuing Person in the manner prescribed in this Section 10.2 from its liability under this Agreement, a Note Guaranty and the Notes, as applicable.
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.
Guarantors May Consolidate, etc., on Certain Terms Except as otherwise provided in Section 9.05, no Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the Surviving Person) another Person whether or not affiliated with such Guarantor unless:
(a) subject to Section 9.05, the Person formed by or surviving any such consolidation or merger (if other than a Guarantor or the Company) unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental indenture in form and substance satisfactory to the Trustee, under this Indenture, the Guarantee on the terms set forth herein or therein; and
(b) the Guarantor complies with the requirements of Article 5 hereof. In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form and substance to the Trustee, of the Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Guarantees had been issued at the date of the execution hereof. Except as set forth in Articles 4 and 5, and notwithstanding clauses (a) and (b) above, nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.
Tax Consolidation File or consent to the filing of any consolidated income tax return with any Person other than Borrowers and Subsidiaries.
