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 Joint Proxy Statement is filed with the SEC, or (b) or otherwise with the prior written consent of the Company, Parent, in its sole discretion, may elect by written notice to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration (the “Alternative Structure”); provided that in the case of each of (A) and (B), (i) the consideration to be paid to the shareholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure will not adversely affect (1) the tax treatment to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, (iii) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, (iv) 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, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby).

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at The Company shall use reasonable best efforts to cause any time agreement, instrument or indenture with respect to indebtedness for borrowed money to which the Company or any of its Subsidiaries is a party to be amended prior to the date that is not later than the fifth business day prior to the date the definitive Joint Proxy Form S-4 Registration Statement is filed with declared effective, if Parent reasonably determines that such amendment is necessary so that the SEC, or (b) or otherwise with the prior written consent Subsequent Merger will not have any of the Company, Parent, effects described in its sole discretion, may elect by written notice Section 5.1(d)(ii) (mutatis mutandi) (without giving effect to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (yi) the Company GP Interest issued Material Adverse Effect exception at the end of Section 5.1(d)(ii) and outstanding immediately prior (ii) any cure period or notice requirement) with respect to the Partnership Merger Effective Time shall be cancelled without any consideration such agreement, instrument or indenture (the an “Alternative StructureIndenture Impact”); provided that without Parent’s prior written consent the Company shall not make any non-de minimis consent payments to any third party in connection with the case foregoing or agree to amend any of each the terms of such agreement, instrument or indenture except to amend the provision giving rise to the Indenture Impact. (Ab) and (B), In the event that either (i) the consideration Mergers would reasonably be likely to be paid fail to qualify for the shareholders of the Company is not thereby changed in nature Intended Tax Treatment or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure will not adversely affect Subsequent Merger would have an Indenture Impact, the parties agree (1x) the tax treatment to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior cooperate in good faith to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with explore alternative structures that would permit the transactions contemplated by hereby to qualify as a reorganization within the meaning of Section 368(a) of the Code and (y) if each party to this Agreement in the exercise of its reasonable business discretion agrees to pursue such an alternative structure, the parties shall enter into an appropriate amendment to this Agreement to reflect such alternative structure and provide for such other changes necessitated thereby; provided, however, that failure of the parties to agree to an alternative structure shall not cause any condition to Closing set forth herein not to be satisfied or otherwise cause any breach of this Agreement; and provided, (iii) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent further, that any actions taken pursuant to be consummated, (iv) 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, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (viSection 6.20(b) (A) for purposes of Section 7.02(a), no representation of shall not (I) without the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, consent of the Company and Parent, alter or change the amount, nature or mix of the Merger Consideration or (II) impose any of its Subsidiaries with any Person to economic or other costs on Parent or the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure Company that are more than immaterial and (B) shall be capable of consummation without delay in connection with implementing relation to the Alternative Structurestructure contemplated herein. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to cause the amendment Subsequent Merger to occur or other documentation reflecting to effect any alternative structure if the Alternative Structure will include foregoing would result in an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. Indenture Impact. (c) In the event that Parent elects the Mergers would reasonably be likely to implement fail to qualify for the Alternative StructureIntended Tax Treatment, the parties agreemay agree (in each party’s reasonable business discretion) not to consummate the Subsequent Merger. For the avoidance of doubt, in good faith, neither the identification nor the implementation of an alternative structure under Section 6.20(b) above shall be a condition to prepare and execute an amendment to this Agreement reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)Closing.

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (aA) at any time prior to the date the definitive Joint Proxy Statement is filed first mailed to the stockholders of the Company in connection with the SECCompany Stockholders Meeting, or (bB) or otherwise with the prior written consent of the CompanyCompany (which shall not be unreasonably withheld or delayed), Parent, in its sole discretion, may elect by written notice to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OPSub), in which case (x) with Parent OP shall continue continuing as the surviving limited partnership corporation of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration (the “Alternative Structure”); provided that in the case of each of (A) and (B), (ia) the consideration to be paid to the shareholders stockholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (iib) the Alternative Structure will not adversely affect (1) the tax treatment to the shareholders 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, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, (iiic) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, and (ivd) such Alternative Structure (after giving effect to the following sentence) will notnot and, and will not reasonably be expected to, jeopardize, impede or delay the consummation of the Transactions transactions contemplated by this Agreement, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, the Surviving Corporation and other such terms impacted thereby).

Alternative Structure. Notwithstanding anything Apogent and F▇▇▇▇▇ may mutually agree in writing to cause the contrary contained “Merger” to be a merger of Apogent with and into Merger Sub at the Effective Time, in this Agreementwhich case, (a) following the “Merger,” the separate corporate existence of Apogent will cease and Merger Sub shall continue as the Surviving Corporation, at any time prior to the date the definitive Joint Proxy Statement is filed with the SECreceipt of both Apogent Shareholder Approval (as defined in Section 3.1(c)(iii)) and F▇▇▇▇▇ Stockholder Approval, or (b) or otherwise at any time thereafter if, with the prior written consent appropriate disclosure, any required further approval of the Companyrevised structure is obtained from the shareholders of Apogent and the stockholders of F▇▇▇▇▇, Parentas applicable; provided, in its sole discretionhowever, may elect by written notice that (a) any such change to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent would not affect the qualification of the Merger Subas a reorganization within the meaning of Section 368(a) of the Code, with Parent Merger Sub surviving, and/or (Bb) any such change to the structure of the Partnership Merger so as to provide that would not affect the Company OP shall merge with and into Parent OP (rather than OP proposed accounting treatment for the Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration (the “Alternative Structure”); provided that in the case of each of (A) and (B), (i) the consideration to be paid to the shareholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure will not adversely affect (1) the tax treatment to F▇▇▇▇▇, Apogent or their stockholders or shareholders, as applicable, or otherwise prejudice F▇▇▇▇▇, Apogent or their stockholders or shareholders, as applicable, or, with respect to Section 5.5, materially prejudice any third party beneficiary thereof, (c) any such change to the shareholders of the Company as a result structure of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, (iii) the merger contemplated by such Alternative Structure shall would not require the approval of the shareholders of Parent to be consummated, (iv) 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 Merger or any of the other transactions contemplated by this Agreement, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders hereby in any material respect and (vid) (A) for purposes of Section 7.02(a), no representation any such change to the structure of the Company Merger would not in any way affect the corporate governance structure of F▇▇▇▇▇, Apogent or Company OP will be deemed the Surviving Corporation. Apogent and F▇▇▇▇▇ agree to consider in good faith the request of the other party to revise the structure of the Merger from that set forth herein and, upon mutual written agreement to revise the structure of the Merger, shall, subject to the foregoing, take any action necessary to permit the provisions of this Article I to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company effective and any of its Subsidiaries with any Person to the extent shall make such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure changes that are necessary to be true and correct. 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 reasonably acceptable to the parties made to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)change in structure that has been agreed.

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at any time upon notice to MART not less than 10 business days prior to the date the definitive Joint Proxy Statement is filed with the SECShareholders' Meeting, or (b) or otherwise with the prior written consent of the Company, Parent, in its sole discretion, may elect by written notice Kimco shall be entitled to the Company to modify (A) revise the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration (the “Alternative Structure”); provided that in the case of each of (A) and (B), for (i) the consideration to be paid to merger of Merger Sub into MART (with MART as the shareholders of the Company is not thereby changed in nature Surviving Entity), or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure merger of another directly or indirectly, wholly-owned subsidiary of Kimco, other than Merger Sub, with MART (with either of MART or such subsidiary surviving). In addition, MART will not adversely affect (1) the take such other action as may be reasonably requested by Kimco to help reduce any adverse tax treatment to the shareholders implications arising out of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by hereby, provided, that, nothing in this AgreementSection 10.15 shall (a) subject the MART shareholders to adverse tax consequences, (iiib) change the merger contemplated amount or form of consideration to be received by such Alternative Structure shall not require the approval MART shareholders, (c) alter to the detriment of the MART shareholders of Parent the benefits to be consummatedreceived by them hereunder, (ivd) such Alternative Structure (after giving effect jeopardize or materially delay or impede the receipt of any required regulatory or third Party approvals or consents or add any additional regulatory or third party approvals or consents relating 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 AgreementMerger, (ve) impede or delay consummation of the Alternative Structure would Merger, or create any new condition to Closing, (f) reduce the obligations of any party hereunder including, but not otherwise reasonably be expected limited to, Kimco's obligations to provide the Merger Consideration and perform its other undertakings hereunder after the Effective Time or (g) adversely affect MART or the Company MART Subsidiaries or its shareholders in any material respect and (vi) (A) for purposes otherwise increase the obligations of Section 7.02(a), no representation of MART or the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correctMART Subsidiaries. In the event that Parent elects to implement the Alternative Structure, the The parties agree, in good faith, to prepare and shall execute an appropriate amendment to this Agreement reasonably acceptable to the parties and any related documents necessary to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)such revised structure.

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (aA) 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 earlier of the date of the definitive Joint Proxy Statement is filed with VEREIT Stockholders Meeting and the SECRealty Income Stockholders Meeting, or (bB) or otherwise with the prior written consent of the CompanyVEREIT (which shall not be unreasonably withheld or delayed), ParentRealty Income, in its sole discretion, may elect by written notice to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP VEREIT shall merge with into and into Parent OP Realty Income (rather than OP Merger Sub merging with and into the Company OP1), in which case (x) Parent OP shall continue with Realty Income continuing as the surviving limited partnership corporation of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration (the “Alternative Structure”); provided that in the case of each of (A) and (B), (ia) the consideration to be paid to the shareholders stockholders of the Company VEREIT is not thereby changed in nature or kind or reduced in amount as a result of such modification, (iib) the Alternative Structure will not adversely affect (1) the tax treatment to the shareholders 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 period, and (c) other than the modification to the Closing, or (3) the economic treatment Realty Income Required Stockholders Vote to require a majority of the holders outstanding shares of any Company OP Units Realty Income Common Stock as a result of or in connection with the transactions contemplated by this AgreementAlternative Structure, (iii) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, (iv) such Alternative Structure (after giving effect to the following sentence) will notnot and, and will not reasonably be expected to, jeopardize, impede or materially delay the consummation of the Transactions transactions contemplated by this Agreement, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, the Surviving Corporation, the Realty Income Required Stockholders Vote and other the Realty Income Stock Issuance 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 parties from obtaining the Required Minority Equity Holder Approvals or the Required Regulatory Approvals with respect to any Acquired Company prior to the contrary Non-Transferred Company Determination Date with respect to such Acquired Company (an “Alternative Structure Event”), Purchaser and Sellers, subject, in the case of Sellers, to the 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 foregoing, in 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 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, (a) at any time Agreement to be performed and complied with by it prior to the date the definitive Joint Proxy Statement is filed with the SECInitial Closing or any Subsequent Closing, or (b) or otherwise with the prior written consent of the as applicable, related to such Acquired Company, Parent, in its sole discretion, may elect by written notice to the Company to modify (A) the structure 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 Merger so that are not reasonably likely to be satisfied as of the Non-Transferred Company merges with Determination Date and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure 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 Partnership Merger so as covenants and obligations contained in this Agreement to provide that the Company OP shall merge be performed and complied with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately by it prior to the Partnership Merger Effective Time shall be cancelled without Initial Closing or any consideration Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the “Alternative Structure”); provided that 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 any Acquired Company becomes a Section 6.29 Retained Company, (i) the consideration parties shall nevertheless be obligated to be paid consummate the Initial Closing and any Subsequent Closing and the other transactions contemplated by this Agreement except with respect to the shareholders of the any such Section 6.29 Retained Company is not thereby changed in nature (or kind any Retained Company or reduced in amount as a result of such modificationROFR Company), (ii) the Alternative Structure applicable Seller will not adversely affect (1) the tax treatment retain and continue to the shareholders of the hold and own its Seller Equity Interests or Holding Company as a result of the Merger or payment or receipt of the Merger ConsiderationEquity Interests relating to, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the ClosingSellers Stockholder Debt with regard to, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreementsuch Section 6.29 Retained Company, (iii) the merger contemplated by such Alternative Structure shall not require the approval Sellers Equity Interests of the shareholders of Parent to be consummated, (iv) 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, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby).such

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at any time prior to At the date the definitive Joint Proxy Statement is filed with the SEC, or (b) or otherwise with the prior written consent request of the CompanyPurchaser, Parent, in its sole discretion, may elect by written notice Seller shall undertake all necessary measures to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding contribute immediately prior to the Partnership Merger Effective Time Closing all of the Assets, free and clear of all Liens other than Permitted Liens, to one or more wholly-owned newly-formed Subsidiaries of Seller organized under the laws of The Netherlands as requested by Purchaser (the "TARGET SUBSIDIARIES") and cause any such Target Subsidiaries to assume the Assumed Liabilities. Purchaser and Seller agree to treat such contribution as a taxable transaction for Dutch corporate income tax purposes. At the Closing, Seller shall sell, transfer, deliver, convey and assign to Purchaser, and Purchaser shall purchase and accept from Seller, all of Seller's right, title and interest in all of the stock of the Target Subsidiaries. All incremental out-of-pocket expenses related to the transactions contemplated under this section 2.09 shall be cancelled for Purchaser's account. Neither Purchaser nor Seller shall include any Target Subsidiary in a fiscal unity with the Seller on any Tax Return or similar filing, pursuant to any election or similar statement or in any Tax Proceeding. (b) Notwithstanding any other provision of this Agreement to the contrary, prior to the Closing Purchaser and Seller shall cooperate in connection with structuring the acquisition of the Assets and the assumption of the Assumed Liabilities and shall take any and all reasonable actions necessary to effectuate such alternative structure (including without any consideration (the “Alternative Structure”limitation entering into separate agreements with respect to such transactions); , provided that in the case of each of (A) and (B), (i) Seller shall not be required to take any action that would be reasonably likely to delay, or have an adverse effect on the consideration Parties' ability to be paid to consummate, the shareholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, Closing and (ii) the Alternative Structure will such cooperation and other actions would not adversely affect (1) the tax treatment be reasonably likely to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) have an adverse effect on the economic treatment benefits to either Purchaser or Seller of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, (iii) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, (iv) 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, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby).

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at any time upon notice to MART not less than 10 business days prior to the date the definitive Joint Proxy Statement is filed with the SECShareholders’ Meeting, or (b) or otherwise with the prior written consent Kimco shall be entitled to Table of the Company, Parent, in its sole discretion, may elect by written notice to the Company to modify (A) Contents revise the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration (the “Alternative Structure”); provided that in the case of each of (A) and (B), for (i) the consideration to be paid to merger of Merger Sub into MART (with MART as the shareholders of the Company is not thereby changed in nature Surviving Entity), or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure merger of another directly or indirectly, wholly-owned subsidiary of Kimco, other than Merger Sub, with MART (with either of MART or such subsidiary surviving). In addition, MART will not adversely affect (1) the take such other action as may be reasonably requested by Kimco to help reduce any adverse tax treatment to the shareholders implications arising out of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by hereby, provided, that, nothing in this AgreementSection 10.15 shall (a) subject the MART shareholders to adverse tax consequences, (iiib) change the merger contemplated amount or form of consideration to be received by such Alternative Structure shall not require the approval MART shareholders, (c) alter to the detriment of the MART shareholders of Parent the benefits to be consummatedreceived by them hereunder, (ivd) such Alternative Structure (after giving effect jeopardize or materially delay or impede the receipt of any required regulatory or third Party approvals or consents or add any additional regulatory or third party approvals or consents relating 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 AgreementMerger, (ve) impede or delay consummation of the Alternative Structure would Merger, or create any new condition to Closing, (f) reduce the obligations of any party hereunder including, but not otherwise reasonably be expected limited to, Kimco’s obligations to provide the Merger Consideration and perform its other undertakings hereunder after the Effective Time or (g) adversely affect MART or the Company MART Subsidiaries or its shareholders in any material respect and (vi) (A) for purposes otherwise increase the obligations of Section 7.02(a), no representation of MART or the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correctMART Subsidiaries. In the event that Parent elects to implement the Alternative Structure, the The parties agree, in good faith, to prepare and shall execute an appropriate amendment to this Agreement reasonably acceptable to the parties and any related documents necessary to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)such revised structure.

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) Parent shall be empowered at any time prior to the date Effective Time, to change the definitive Joint Proxy Statement is filed method or structure of effecting the combination of the Company and Parent; provided, that no such change shall (i) alter or change the Merger Consideration or the number of shares of the Parent Common Stock to be received by the Company’s stockholders in exchange for each share of the Company Common Stock, (ii) adversely affect the Tax treatment of the Company’s or Parent’s shareholders pursuant to this Agreement, (iii) adversely affect the Tax treatment of the Company pursuant to this Agreement or (iv) materially impede or delay the consummation of the transactions contemplated by this Agreement. The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with the SEC, or Section 9.2. (b) or otherwise with Notwithstanding anything to the prior written consent contrary set forth herein, in the event the Preferred Stockholder Matter shall not have been approved by the Requisite Preferred Vote as of the Company, Parent, in its sole discretion, may elect by written notice business day prior to the Company to modify Closing Date, then the parties agree that (Ai) the structure Merger shall be effected by the merger of the Company Merger so that Company merges with and into a newly-formed subsidiary of Parent (“Merger Sub, with Parent Merger Sub surviving, and/or (B”) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OPand the Company shall be the surviving corporation in such merger and continue its corporate existence under the laws of the State of Maryland as a subsidiary of Parent (the “Alternative Merger”), in which case (xii) Parent OP the Charter Amendment shall continue as become effective and the surviving limited partnership Company shall file the Charter Amendment with the Department of Assessments and Taxation of the Partnership State of Maryland pursuant to Section 6.19 immediately prior to the effective time of the Alternative Merger, and (yiii) at the effective time of the Alternative Merger, the holders of Company Common Stock shall have the right to receive the Merger Table of Contents Consideration pursuant to Section 1.5, (iv) the Company GP Interest Preferred Stock shall remain issued and outstanding at and after the effective time of the Alternative Merger, (v) each share of Common Stock of Merger Sub issued and outstanding immediately prior to the Partnership effective time of the Alternative Merger Effective Time shall be converted into one share of the Company Common Stock and constitute the only outstanding shares of common stock of the Company after the effective time of the Alternative Merger, (vi) the Bank Merger will continue to be effected in accordance with Section 1.13, if so elected by Parent and (vii) the Company Equity Awards shall be cancelled without any consideration and converted into the right to receive the Merger Consideration or assumed, as applicable, in accordance with Section 1.9 (collectively, items (i) to (vii), the “Alternative Structure”); provided that in . In the case of each of event the parties effect the Alternative Structure, (A) the Company Preferred Stock shall not be converted into, and Parent shall not issue, the New Parent Preferred Stock pursuant to Section 1.6, (B), (i) Parent shall not be required to deposit into the consideration to be paid to the shareholders of the Company is not thereby changed in nature Exchange Fund New Parent Preferred Stock certificates or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure will not adversely affect (1) the tax treatment to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or cash in connection with the payment of dividends declared with respect to the New Parent Preferred Stock pursuant to Section 2.1 or effect the exchange procedures with respect to the Company Preferred Stock set forth in Section 2.2, and (C) Parent shall not be required to cause the New Parent Preferred Stock to be approved for listing on Nasdaq pursuant to Section 6.5. Intermediary shall have the right to assign this Agreement to Merger Sub in order to consummate the Alternative Merger. Parent, Intermediary and the Company shall use reasonable best efforts to take all corporate action and make all filings reasonably necessary or desirable to facilitate the Alternative Structure. Actions taken in connection with, and the consummation of the transactions contemplated by this Agreementby, (iii) the merger contemplated by such Alternative Structure shall not require the approval constitute a breach of any representations and warranties of the shareholders of Parent to be consummated, (iv) 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 parties set forth in this Agreement, (v) . If the Alternative Structure would not otherwise reasonably be expected is effected by the parties, then all references in this Agreement to adversely affect the Company or “Merger” shall mean the “Alternative Merger”. Parent may elect in its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation sole discretion to issue a guarantee to the holders of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of Preferred Stock that remains outstanding following the Alternative Structure on Merger for the business relationshipspayment of dividends, contractual or otherwise, the redemption price and the liquidation value of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)Preferred Stock.

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at any time prior to At the date the definitive Joint Proxy Statement is filed with the SEC, or (b) or otherwise with the prior written consent request of the CompanyPurchaser, Parent, in its sole discretion, may elect by written notice Seller shall undertake all necessary measures to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding contribute immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration Closing all of the Assets, free and clear of all Liens other than Permitted Liens, to one or more wholly-owned newly- formed Subsidiaries of Seller organized under the laws of The Netherlands as requested by Purchaser (the “Alternative StructureTarget Subsidiaries”) and cause any such Target Subsidiaries to assume the Assumed Liabilities. Purchaser and Seller agree to treat such contribution as a taxable transaction for Dutch corporate income tax purposes. At the Closing, Seller shall sell, transfer, deliver, convey and assign to Purchaser, and Purchaser shall purchase and accept from Seller, all of Seller’s right, title and interest in all of the stock of the Target Subsidiaries. All incremental out-of-pocket expenses related to the transactions contemplated under this section 2.09 shall be for Purchaser’s account. Neither Purchaser nor Seller shall include any Target Subsidiary in a fiscal unity with the Seller on any Tax Return or similar filing, pursuant to any election or similar statement or in any Tax Proceeding. (b) Notwithstanding any other provision of this Agreement to the contrary, prior to the Closing Purchaser and Seller shall cooperate in connection with structuring the acquisition of the Assets and the assumption of the Assumed Liabilities and shall take any and all reasonable actions necessary to effectuate such alternative structure (including without limitation entering into separate agreements with respect to such transactions); , provided that in the case of each of (A) and (B), (i) Seller shall not be required to take any action that would be reasonably likely to delay, or have an adverse effect on the consideration Parties’ ability to be paid to consummate, the shareholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, Closing and (ii) the Alternative Structure will such cooperation and other actions would not adversely affect (1) the tax treatment be reasonably likely to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) have an adverse effect on the economic treatment benefits to either Purchaser or Seller of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, (iii) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, (iv) 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, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby).

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at any time prior to the date the definitive Joint Proxy Statement is filed with the SEC, or (b) or otherwise with the prior written consent of the Company, Parent, in its sole discretion, may elect by written notice to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger this Agreement so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership consummation of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time transactions contemplated hereby shall be cancelled without any consideration accomplished through a tender offer and merger structure in accordance with DGCL Section 251(h) in lieu of the Merger (the “Alternative Structure”); provided that in (a) the case of each of (A) and (B)Company Stockholder Approval has not been obtained, (ib) the consideration to be paid to the shareholders stockholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (iic) in no event shall Parent make any filings with the Alternative Structure will not adversely affect (1) the tax treatment to the shareholders SEC or other public announcement of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period such election prior to the Closing, No-Shop Period Start Date (or (3) the economic treatment expiration of the holders Go-Shop Extension (if any)) and shall not make any filing of any Company OP Units as a result of or in connection with the transactions contemplated by this AgreementSchedule TO for five Business Days thereafter, (iii) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, (ivd) such Alternative Structure will not, and will not reasonably be expected, to impair the Financing and (after giving effect to the following sentencee) such Alternative Structure will not, and will not reasonably be expected to, jeopardize, impede or delay the consummation of the Transactions contemplated by this Agreement, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company from occurring on or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person prior to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correctOutside Date. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this the Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, the Surviving Corporation, the Company Stockholder Approval and other such terms impacted thereby).

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at any time prior to the date Holdings Merger Effective Time, Parent I may specify that the definitive Joint Proxy Statement is filed with structure of the SECtransactions contemplated by this Agreement be revised and the Parties shall enter into such alternative transactions as Parent I may reasonably determine to effect the purposes of this Agreement; provided, or (b) or otherwise with however, that no such revision shall be required pursuant to this Section 2.15 if, in the prior written consent reasonable determination of the Company, Parentsuch revision would reasonably be expected to (a) alter or change the amount or kind of the consideration payable to the Company’s Stockholders or the Holdings Unitholders pursuant to this Article II, in its sole discretion, may elect by written notice or otherwise change the economic benefits that are intended to accrue to the Company to modify (A) Stockholders or the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior Holdings Unitholders pursuant to the Partnership Merger Effective Time shall be cancelled without any consideration (terms of this Agreement and the “Alternative Structure”); provided that in the case of each of (A) and (B)transactions contemplated hereby, (ib) prevent, materially impede or materially delay the consideration to be paid to the shareholders consummation of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure will not adversely affect (1) the tax treatment to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, including the Equity Financing and the Closing, (iiic) fail to comply with the merger contemplated by such Alternative Structure shall not require the approval terms of the shareholders Indenture or the Capped Call Documentation, or (d) result in any adverse tax consequences for any of Parent the Holdings Unitholders or Company Stockholders; provided, however, that in no event shall any such revision be required pursuant to be consummatedthis Section 2.15 on or after the date that the Proxy Statement becomes definitive if in the reasonable determination of the Company, (iv) such Alternative Structure (after giving effect revision would require an update or revision to the following sentence) will not, and will not reasonably be expected to, jeopardize, impede Proxy Statement or delay a resubmission of this Merger Agreement or the consummation of the Transactions transactions contemplated by this Agreement, (v) the Alternative Structure would not otherwise reasonably be expected Agreement to adversely affect the Company or its shareholders in any material respect and (vi) (A) Stockholders for purposes the purpose of Section 7.02(a), no representation of obtaining the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correctRequisite 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 reasonably acceptable to the parties appropriate documents to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)revised structure.

Alternative Structure. Notwithstanding anything (a) The parties agree that in the event issues arise that could reasonably be expected to prevent the parties from obtaining the Required Minority Equity Holder Approvals or the Required Regulatory Approvals with respect to any Acquired Company prior to the contrary Non-Transferred Company Determination Date with respect to such Acquired Company (an "ALTERNATIVE STRUCTURE EVENT"), Purchaser and Sellers, subject, in the case of Sellers, to the 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 foregoing, in 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 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, (a) at any time Agreement to be performed and complied with by it prior to the date the definitive Joint Proxy Statement is filed with the SECInitial Closing or any Subsequent Closing, or (b) or otherwise with the prior written consent of the as applicable, related to such Acquired Company, Parent, in its sole discretion, may elect by written notice to the Company to modify (A) the structure 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 Merger so that are not reasonably likely to be satisfied as of the Non-Transferred Company merges with Determination Date and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure 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 Partnership Merger so as covenants and obligations contained in this Agreement to provide that the Company OP shall merge be performed and complied with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately by it prior to the Partnership Merger Effective Time shall be cancelled without Initial Closing or any consideration Subsequent Closing, as applicable, related to such Acquired Company, (A) one or both of the “Alternative Structure”); provided that 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 any Acquired Company becomes a Section 6.29 Retained Company, (i) the consideration parties shall nevertheless be obligated to be paid consummate the Initial Closing and any Subsequent Closing and the other transactions contemplated by this Agreement except with respect to the shareholders of the any such Section 6.29 Retained Company is not thereby changed in nature (or kind any Retained Company or reduced in amount as a result of such modificationROFR Company), (ii) the Alternative Structure applicable Seller will not adversely affect (1) the tax treatment retain and continue to the shareholders of the hold and own its Seller Equity Interests or Holding Company as a result of the Merger or payment or receipt of the Merger ConsiderationEquity Interests relating to, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the ClosingSellers Stockholder Debt with regard to, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreementsuch Section 6.29 Retained Company, (iii) the merger contemplated by such Alternative Structure shall not require the approval Sellers Equity Interests of the shareholders of Parent to be consummated, (iv) 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, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby).such

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) Parent shall be empowered at any time prior to the date Effective Time, to change the definitive Joint Proxy Statement is filed method or structure of effecting the combination of the Company and Parent; provided, that no such change shall (i) alter or change the Merger Consideration or the number of shares of the Parent Common Stock to be received by the Company’s stockholders in exchange for each share of the Company Common Stock, (ii) adversely affect the Tax treatment of the Company’s or Parent’s shareholders pursuant to this Agreement, (iii) adversely affect the Tax treatment of the Company pursuant to this Agreement or (iv) materially impede or delay the consummation of the transactions contemplated by this Agreement. The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with the SEC, or Section 9.2. (b) or otherwise with Notwithstanding anything to the prior written consent contrary set forth herein, in the event the Preferred Stockholder Matter shall not have been approved by the Requisite Preferred Vote as of the Company, Parent, in its sole discretion, may elect by written notice business day prior to the Company to modify Closing Date, then the parties agree that (Ai) the structure Merger shall be effected by the merger of the Company Merger so that Company merges with and into a newly-formed subsidiary of Parent (“Merger Sub, with Parent Merger Sub surviving, and/or (B”) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OPand the Company shall be the surviving corporation in such merger and continue its corporate existence under the laws of the State of Maryland as a subsidiary of Parent (the “Alternative Merger”), in which case (xii) Parent OP the Charter Amendment shall continue as become effective and the surviving limited partnership Company shall file the Charter Amendment with the Department of Assessments and Taxation of the Partnership State of Maryland pursuant to Section 6.19 immediately prior to the effective time of the Alternative Merger, and (yiii) at the effective time of the Alternative Merger, the holders of Company Common Stock shall have the right to receive the Merger Consideration pursuant to Section 1.5, (iv) the Company GP Interest Preferred Stock shall remain issued and outstanding at and after the effective time of the Alternative Merger, (v) each share of Common Stock of Merger Sub issued and outstanding immediately prior to the Partnership effective time of the Alternative Merger Effective Time shall be converted into one share of the Company Common Stock and constitute the only outstanding shares of common stock of the Company after the effective time of the Alternative Merger, (vi) the Bank Merger will continue to be effected in accordance with Section 1.13, if so elected by Parent and (vii) the Company Equity Awards shall be cancelled without any consideration and converted into the right to receive the Merger Consideration or assumed, as applicable, in accordance with Section 1.9 (collectively, items (i) to (vii), the “Alternative Structure”); provided that in . In the case of each of event the parties effect the Alternative Structure, (A) the Company Preferred Stock shall not be converted into, and Parent shall not issue, the New Parent Preferred Stock pursuant to Section 1.6, (B), (i) Parent shall not be required to deposit into the consideration to be paid to the shareholders of the Company is not thereby changed in nature Exchange Fund New Parent Preferred Stock certificates or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure will not adversely affect (1) the tax treatment to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or cash in connection with the payment of dividends declared with respect to the New Parent Preferred Stock pursuant to Section 2.1 or effect the exchange procedures with respect to the Company Preferred Stock set forth in Section 2.2, and (C) Parent shall not be required to cause the New Parent Preferred Stock to be approved for listing on Nasdaq pursuant to Section 6.5. Intermediary shall have the right to assign this Agreement to Merger Sub in order to consummate the Alternative Merger. Parent, Intermediary and the Company shall use reasonable best efforts to take all corporate action and make all filings reasonably necessary or desirable to facilitate the Alternative Structure. Actions taken in connection with, and the consummation of the transactions contemplated by this Agreementby, (iii) the merger contemplated by such Alternative Structure shall not require the approval constitute a breach of any representations and warranties of the shareholders of Parent to be consummated, (iv) 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 parties set forth in this Agreement, (v) . If the Alternative Structure would not otherwise reasonably be expected is effected by the parties, then all references in this Agreement to adversely affect the Company or “Merger” shall mean the “Alternative Merger”. Parent may elect in its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation sole discretion to issue a guarantee to the holders of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of Preferred Stock that remains outstanding following the Alternative Structure on Merger for the business relationshipspayment of dividends, contractual or otherwise, the redemption price and the liquidation value of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)Preferred Stock.

Alternative Structure. Notwithstanding anything Apogent and ▇▇▇▇▇▇ may mutually agree in writing to cause the contrary contained "Merger" to be a merger of Apogent with and into Merger Sub at the Effective Time, in this Agreementwhich case, (a) following the "Merger," the separate corporate existence of Apogent will cease and Merger Sub shall continue as the Surviving Corporation, at any time prior to the date the definitive Joint Proxy Statement is filed with the SECreceipt of both Apogent Shareholder Approval (as defined in Section 3.1(c)(iii)) and ▇▇▇▇▇▇ Stockholder Approval, or (b) or otherwise at any time thereafter if, with the prior written consent appropriate disclosure, any required further approval of the Companyrevised structure is obtained from the shareholders of Apogent and the stockholders of ▇▇▇▇▇▇, Parentas applicable; provided, in its sole discretionhowever, may elect by written notice that (a) any such change to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent would not affect the qualification of the Merger Subas a reorganization within the meaning of Section 368(a) of the Code, with Parent Merger Sub surviving, and/or (Bb) any such change to the structure of the Partnership Merger so as to provide that would not affect the Company OP shall merge with and into Parent OP (rather than OP proposed accounting treatment for the Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding immediately prior to the Partnership Merger Effective Time shall be cancelled without any consideration (the “Alternative Structure”); provided that in the case of each of (A) and (B), (i) the consideration to be paid to the shareholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, (ii) the Alternative Structure will not adversely affect (1) the tax treatment to ▇▇▇▇▇▇, Apogent or their stockholders or shareholders, as applicable, or otherwise prejudice ▇▇▇▇▇▇, Apogent or their stockholders or shareholders, as applicable, or, with respect to Section 5.5, materially prejudice any third party beneficiary thereof, (c) any such change to the shareholders of the Company as a result structure of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) the economic treatment of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, (iii) the merger contemplated by such Alternative Structure shall would not require the approval of the shareholders of Parent to be consummated, (iv) 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 Merger or any of the other transactions contemplated by this Agreement, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders hereby in any material respect and (vid) (A) for purposes of Section 7.02(a), no representation any such change to the structure of the Company Merger would not in any way affect the corporate governance structure of ▇▇▇▇▇▇, Apogent or Company OP will be deemed the Surviving Corporation. Apogent and ▇▇▇▇▇▇ agree to consider in good faith the request of the other party to revise the structure of the Merger from that set forth herein and, upon mutual written agreement to revise the structure of the Merger, shall, subject to the foregoing, take any action necessary to permit the provisions of this Article I to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company effective and any of its Subsidiaries with any Person to the extent shall make such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure changes that are necessary to be true and correct. 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 reasonably acceptable to the parties made to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby)change in structure that has been agreed.

Alternative Structure. Notwithstanding anything to the contrary contained in this Agreement, (a) at any time prior to At the date the definitive Joint Proxy Statement is filed with the SEC, or (b) or otherwise with the prior written consent request of the CompanyPurchaser, Parent, in its sole discretion, may elect by written notice Seller shall undertake all necessary measures to the Company to modify (A) the structure of the Company Merger so that Company merges with and into Parent Merger Sub, with Parent Merger Sub surviving, and/or (B) the structure of the Partnership Merger so as to provide that the Company OP shall merge with and into Parent OP (rather than OP Merger Sub merging with and into the Company OP), in which case (x) Parent OP shall continue as the surviving limited partnership of the Partnership Merger, and (y) the Company GP Interest issued and outstanding contribute immediately prior to the Partnership Merger Effective Time Closing all of the Assets, free and clear of all Liens other than Permitted Liens, to one or more wholly-owned newly-formed Subsidiaries of Seller organized under the laws of The Netherlands as requested by Purchaser (the "Target Subsidiaries") and cause any such Target Subsidiaries to assume the Assumed Liabilities. Purchaser and Seller agree to treat such contribution as a taxable transaction for Dutch corporate income tax purposes. At the Closing, Seller shall sell, transfer, deliver, convey and assign to Purchaser, and Purchaser shall purchase and accept from Seller, all of Seller's right, title and interest in all of the stock of the Target Subsidiaries. All incremental out-of-pocket expenses related to the transactions contemplated under this section 2.09 shall be cancelled for Purchaser's account. Neither Purchaser nor Seller shall include any Target Subsidiary in a fiscal unity with the Seller on any Tax Return or similar filing, pursuant to any election or similar statement or in any Tax Proceeding. (b) Notwithstanding any other provision of this Agreement to the contrary, prior to the Closing Purchaser and Seller shall cooperate in connection with structuring the acquisition of the Assets and the assumption of the Assumed Liabilities and shall take any and all reasonable actions necessary to effectuate such alternative structure (including without any consideration (the “Alternative Structure”limitation entering into separate agreements with respect to such transactions); , provided that in the case of each of (A) and (B), (i) Seller shall not be required to take any action that would be reasonably likely to delay, or have an adverse effect on the consideration Parties' ability to be paid to consummate, the shareholders of the Company is not thereby changed in nature or kind or reduced in amount as a result of such modification, Closing and (ii) the Alternative Structure will such cooperation and other actions would not adversely affect (1) the tax treatment be reasonably likely to the shareholders of the Company as a result of the Merger or payment or receipt of the Merger Consideration, (2) the qualification and taxation of the Company as a REIT for federal income tax purposes for any period prior to the Closing, or (3) have an adverse effect on the economic treatment benefits to either Purchaser or Seller of the holders of any Company OP Units as a result of or in connection with the transactions contemplated by this Agreement, (iii) the merger contemplated by such Alternative Structure shall not require the approval of the shareholders of Parent to be consummated, (iv) 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, (v) the Alternative Structure would not otherwise reasonably be expected to adversely affect the Company or its shareholders in any material respect and (vi) (A) for purposes of Section 7.02(a), no representation of the Company or Company OP will be deemed to be untrue or incorrect as a result of the impact of the Alternative Structure on the business relationships, contractual or otherwise, of the Company and any of its Subsidiaries with any Person to the extent such representation would not have been untrue or incorrect had Parent not elected the Alternative Structure and (B) in connection with implementing the Alternative Structure, the amendment or other documentation reflecting the Alternative Structure will include an express waiver pursuant to which Parent, Parent OP, Parent Merger Sub and OP Merger Sub irrevocably, unconditionally and forever waive such failure to be true and correct. 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 reasonably acceptable to the parties to reflect the Alternative Structure and any necessary modifications to the terms of this Agreement to give effect to the Alternative Structure (including all necessary or appropriate changes to the definitions of the Merger and Partnership Merger, and other terms impacted thereby).