Common use of Alternative Proposals Clause in Contracts

Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 6.2(d) with respect to a Backup Restructuring Proposal, during the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, the Company and its Subsidiaries shall not, and shall use their commercially reasonable efforts to cause their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not to, (i) initiate or solicit, propose, or knowingly facilitate, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal, in each case except as permitted by clause (ii) hereof; (ii) enter into, maintain or continue discussions or negotiations with any Person with respect to, any Alternative Proposal, other than, in the case of this clause (ii), if the Company Board (or any board of directors, board of managers or similar governing body of any Debtor), in response to the receipt of an unsolicited, written Alternative Proposal from a third party, determines in good faith after consultation with its outside financial advisors and outside legal counsel that such Alternative Proposal would reasonably be likely to lead to a Superior Proposal (in which case the Company shall notify the Purchasers of such determination in writing promptly after such determination is reached); or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding) that constitutes an Alternative Proposal (an “Alternative Transaction Agreement”). In addition, during the period specified in the first sentence of this Section 6.2(a), if any Debtor makes or receives any written proposal or expression of interest regarding an Alternative Proposal that is reasonably likely to lead to a Superior Proposal, the Company and EFIH shall promptly notify counsel to Parent of any such proposal or expression of interest relating to an Alternative Proposal, with such notice to include unless prohibited by any agreement to which any Debtor is a party or applicable Law, the material terms of such Alternative Proposal and the identity of the Person or group of Persons making the same. Unless prohibited by any agreement to which any Debtor is a party or applicable Law, the Company and EFIH shall promptly furnish counsel to Parent with copies of any written offer or other information that they make or receive relating to an Alternative Proposal and shall keep counsel to Parent reasonably informed of any material changes to such Alternative Proposal; provided, that if such an Alternative Proposal is a Backup Restructuring Proposal, such obligation shall only be applicable if such Backup Restructuring Proposal is reasonably likely to lead to a Superior Proposal. During the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, no Debtor shall enter into any agreement with any Person which prohibits the Company or EFIH from providing information to the Purchasers that the Purchasers are expressly entitled to receive in accordance with this Section 6.2(a) and each of the Debtors shall use its commercially reasonable efforts to amend any existing agreement to which it is a party which prohibits it from providing such information to the Purchasers; provided that, for all purposes of this Agreement, the commercially reasonable efforts of the Debtors shall not include any payments to any counterparty of any such existing agreement or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation. Notwithstanding anything else in this Agreement to contrary, references in this Section 6.2 to the Company’s Subsidiaries do not include the Oncor Entities (subject to Section 6.23). (b) On the date hereof, the Company and its Subsidiaries will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted prior to the date hereof with respect to any Alternative Proposal, other than with respect to any Backup Restructuring Proposal. (c) For purposes of this Agreement:

Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 6.2(d) with respect to a Backup Restructuring Proposal, during During the period beginning on from the date of this Agreement and ending on extending through the earlier of the First Closing Date termination of this Agreement in accordance with its terms or the Termination DateClosing, the Company and its Subsidiaries KCS agrees that (a) it shall not, and shall use their its commercially reasonable efforts to direct and cause their respective its officers, directors, officers, employees, investment bankers, attorneys, accountants agents and other advisors or representatives (collectivelyincluding any investment banker, “Representatives”) attorney or accountant), as applicable, not to, directly or indirectly, (i) initiate, solicit or encourage, directly or indirectly, or accept the submission of any proposal or offer by any third party with respect to any joint venture, merger, acquisition, sale, consolidation or similar transaction involving the Line or any haulage, trackage or marketing arrangement involving the Line, in each case, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or initiate or solicit, propose, participate in any negotiations or knowingly facilitate, knowingly encourage or knowingly induce, the submission of, any discussions concerning an Alternative Proposal, in each case except as permitted by clause (ii) hereof; (ii) enter into, maintain or continue discussions or negotiations with any Person with respect to, any Alternative Proposal, other than, in the case of this clause (ii), if the Company Board (or any board of directors, board of managers or similar governing body of any Debtor), in response to the receipt of an unsolicited, written Alternative Proposal from a third party, determines in good faith after consultation with its outside financial advisors and outside legal counsel that such Alternative Proposal would reasonably be likely to lead to a Superior Proposal (in which case the Company shall notify the Purchasers of such determination in writing promptly after such determination is reached); or (iii) enter into any written letter of intentagreement, agreement in principle principle, letter of intent or other agreement similar arrangement (whether or not legally binding) that constitutes with any third party relating to an Alternative Proposal or (an “Alternative Transaction Agreement”). In addition, during the period specified in the first sentence of this Section 6.2(a), if iii) provide any Debtor makes confidential information or receives data to any written proposal or expression of interest regarding an Alternative Proposal that is reasonably likely to lead to a Superior Proposal, the Company and EFIH shall promptly notify counsel to Parent of any such proposal or expression of interest third party relating to an Alternative Proposal, and (b) it shall notify NS promptly if any Alternative Proposal is received by it or any negotiations or discussions relating to a potential Alternative Proposal are sought to be initiated or continued with such notice to include unless prohibited by any agreement to which any Debtor is a party or applicable LawKCS, including the material terms of such Alternative Proposal and the identity of the Person or group of Persons making the same. Unless prohibited by any agreement to which any Debtor is a party or applicable Law, the Company and EFIH shall promptly furnish counsel to Parent with copies of any written offer or other information that they make or receive relating to an such Alternative Proposal and shall keep counsel to Parent reasonably informed of any material changes to or seeking such Alternative Proposalnegotiations or discussions; provided, that if such an Alternative Proposal is a Backup Restructuring Proposal, such obligation shall only be applicable if such Backup Restructuring Proposal is reasonably likely to lead to a Superior Proposal. During the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, no Debtor shall enter into any agreement with any Person which prohibits the Company or EFIH from providing information to the Purchasers that the Purchasers are expressly entitled to receive in accordance with this Section 6.2(a) and each of the Debtors shall use its commercially reasonable efforts to amend any existing agreement to which it is a party which prohibits it from providing such information to the Purchasers; provided that, for all purposes of this Agreement, the commercially reasonable efforts of the Debtors shall not include any payments to any counterparty of any such existing agreement or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation. Notwithstanding anything else in this Agreement to contrary, references nothing in this Section 6.2 to the Company’s Subsidiaries do not include the Oncor Entities (subject to Section 6.23). (b) On the date hereof, the Company and its Subsidiaries will immediately cease and cause to be terminated 10.3 shall prevent KCS from taking any existing activities, discussions or negotiations with any Persons conducted prior to the date hereof action with respect to any Alternative Proposalproposal or offer not initiated, other than solicited or encouraged in violation of this Section 10.3 or participating in negotiations or discussions with respect to any Backup Restructuring Proposalsuch a proposal or offer if it is advised by outside legal counsel that it is required to take such action to satisfy the fiduciary duties of the Board of Directors of KCS under Delaware law; provided, however, that KCS shall not be permitted to terminate this Agreement other than as provided in Article 13 hereof. (c) For purposes of this Agreement:

Alternative Proposals. (a) Notwithstanding anything Unless and until this Agreement shall have been terminated, Sellers hereby covenant and agree that prior to the contrary herein, except as specifically permitted by Section 6.2(d) with respect to a Backup Restructuring Proposal, during the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, the Company and its Subsidiaries Sellers shall not, and shall use their commercially reasonable efforts to cause their respective directorsnot permit the Owner Partnership, officersnor shall Sellers authorize any officer, employeesdirector, partner, employee, investment bankersbanker, attorneys, accountants and attorney or other advisors advisor or representatives (collectively, “Representatives”) not representative of any Seller or the Owner Partnership to, (i) directly or indirectly, solicit, initiate or solicit, propose, or knowingly facilitate, knowingly encourage or knowingly induce, the submission of, of any proposal to acquire the capital stock of Eastern or the Units or all or any portion of the general partnership interest in Eastpoint or all or any portion of the fee interest in the Mall or a leasehold interest in all or substantially all of the Mall or all or any portion of the Interests (an "Alternative Proposal, in each case except as permitted by clause (ii) hereof; (ii) enter into, maintain or continue discussions or negotiations with any Person with respect to, any Alternative Proposal, other than, in the case of this clause (ii), if the Company Board (or any board of directors, board of managers or similar governing body of any Debtor), in response to the receipt of an unsolicited, written Alternative Proposal from a third party, determines in good faith after consultation with its outside financial advisors and outside legal counsel that such Alternative Proposal would reasonably be likely to lead to a Superior Proposal (in which case the Company shall notify the Purchasers of such determination in writing promptly after such determination is reached); or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding) that constitutes an Alternative Proposal (an “Alternative Transaction Agreement”). In addition, during the period specified in the first sentence of this Section 6.2(a), if any Debtor makes or receives any written proposal or expression of interest regarding an Alternative Proposal that is reasonably likely to lead to a Superior Proposal, the Company and EFIH shall promptly notify counsel to Parent of any such proposal or expression of interest relating to an Alternative Proposal, with such notice to include unless prohibited by any agreement to which any Debtor is a party or applicable Law, the material terms of such Alternative Proposal and the identity of the Person or group of Persons making the same. Unless prohibited by any agreement to which any Debtor is a party or applicable Law, the Company and EFIH shall promptly furnish counsel to Parent with copies of any written offer or other information that they make or receive relating to an Alternative Proposal and shall keep counsel to Parent reasonably informed of any material changes to such Alternative Proposal; provided, that if such an Alternative Proposal is a Backup Restructuring Proposal, such obligation shall only be applicable if such Backup Restructuring Proposal is reasonably likely to lead to a Superior Proposal. During the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, no Debtor shall enter into any agreement with any Person which prohibits the Company or EFIH from providing information to the Purchasers that the Purchasers are expressly entitled to receive in accordance with this Section 6.2(a) and each of the Debtors shall use its commercially reasonable efforts to amend any existing agreement to which it is a party which prohibits it from providing such information to the Purchasers; provided that, for all purposes of this Agreement, the commercially reasonable efforts of the Debtors shall not include any payments to any counterparty of any such existing agreement or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation. Notwithstanding anything else in this Agreement to contrary, references in this Section 6.2 to the Company’s Subsidiaries do not include the Oncor Entities (subject to Section 6.23"). (b) On Notwithstanding any provision of this Agreement to the date hereof, the Company and its Subsidiaries will immediately cease and cause to be terminated any existing activities, contrary: (i) Sellers may participate in discussions or negotiations with with, and may furnish information to, any Persons conducted prior third party which (without any solicitation, initiation or encouragement in violation of Section 7.06(a)) seeks to engage in such discussions or negotiations or requests such information, if Eastern, in its capacity as the general partner of Eastpoint, determines in its sole discretion, based on the advice of counsel selected by Eastern in its sole discretion ("Legal Counsel"), that failing to engage in such discussions or negotiations or to provide such information might reasonably be expected to violate the fiduciary duties of Eastern, in its capacity as the general partner of Eastpoint, to the date hereof Eastpoint Limited Partners; and (ii) Eastern may take and disclose to the Eastpoint Limited Partners a position as contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to any tender offer and make such disclosure to the Eastpoint Limited Partners as may be required under applicable law. (c) Notwithstanding any provision of this Agreement to the contrary, Eastern shall be permitted from time to time to take the following actions in the circumstances described below: (i) to withdraw or modify its approval or recommendation of this Agreement or the transactions contemplated hereby in a manner adverse to Buyer; (ii) to approve or recommend or enter into an agreement with respect to an Alternative Proposal; (iii) to terminate this Agreement; and/or (iv) to make disclosures under the Exchange Act and other applicable securities laws and to take such other actions as Eastern deems necessary or appropriate, if, in each case: (A) an Alternative Proposal is commenced, publicly proposed, publicly disclosed or otherwise communicated to Eastern, in its capacity as general partner of Eastpoint, and (B) Eastern, in its capacity as general partner of Eastpoint, determines in its sole discretion, based on the advice of Legal Counsel, that failure to take such action might reasonably be expected to violate the fiduciary duties of Eastern, in its capacity as general partner of Eastpoint, to the Eastpoint Limited Partners. No such action by Eastern shall constitute a breach of this Agreement by any Seller. (d) Unless Eastern, in its capacity as general partner of Eastpoint, determines in its sole discretion, based on the advice of Legal Counsel, that doing so might reasonably be expected to violate the fiduciary duties of Eastern, in its capacity as general partner of Eastpoint, to the Eastpoint Limited Partners, Eastpoint shall promptly advise Buyer of any inquiries or proposals it receives relating to an Alternative Proposal. Buyer agrees to maintain any information it receives with respect to any Alternative ProposalProposal in confidence and shall not disclose such information to or discuss such information with any third party, other than except (i) to the extent Buyer is legally required to disclose such information; provided, that if Buyer determines that it is legally required to disclose such information to any third party, Buyer shall, unless prohibited by law, provide Sellers with prompt written notice prior to any disclosure of such information so that Sellers may seek a protective order or interpose an objection with respect to the disclosure thereof; and (ii) Buyer may disclose such information to its counsel, subject to such counsel's agreement to maintain such information in confidence and not to disclose such information to or discuss such information with any Backup Restructuring Proposalthird party except as provided in clause (i) (and Buyer shall be liable for any breach of such agreement by its counsel). (c) For purposes of this Agreement:

Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 6.2(d) with respect to a Backup Restructuring Proposal, during During the period beginning on from the date of this Agreement and ending on extending through the earlier of the First Closing Date termination of this Agreement in accordance with its terms or the Termination DateClosing, the Company and its Subsidiaries KCS agrees that (a) it shall not, and shall use their its commercially reasonable efforts to direct and cause their respective its officers, directors, officers, employees, investment bankers, attorneys, accountants agents and other advisors or representatives (collectivelyincluding any investment banker, “Representatives”) attorney or accountant), as applicable, not to, directly or indirectly, (i) initiate, solicit or encourage, directly or indirectly, or accept the submission of any proposal or offer by any third party with respect to any joint venture, merger, acquisition, sale, consolidation or similar transaction involving the Line or any haulage, trackage or marketing arrangement involving the Line, in each case, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an “Alternative Proposal”) or initiate or solicit, propose, participate in any negotiations or knowingly facilitate, knowingly encourage or knowingly induce, the submission of, any discussions concerning an Alternative Proposal, in each case except as permitted by clause (ii) hereof; (ii) enter into, maintain or continue discussions or negotiations with any Person with respect to, any Alternative Proposal, other than, in the case of this clause (ii), if the Company Board (or any board of directors, board of managers or similar governing body of any Debtor), in response to the receipt of an unsolicited, written Alternative Proposal from a third party, determines in good faith after consultation with its outside financial advisors and outside legal counsel that such Alternative Proposal would reasonably be likely to lead to a Superior Proposal (in which case the Company shall notify the Purchasers of such determination in writing promptly after such determination is reached); or (iii) enter into any written letter of intentagreement, agreement in principle principle, letter of intent or other agreement similar arrangement (whether or not legally binding) that constitutes with any third party relating to an Alternative Proposal or (an “Alternative Transaction Agreement”). In addition, during the period specified in the first sentence of this Section 6.2(a), if iii) provide any Debtor makes confidential information or receives data to any written proposal or expression of interest regarding an Alternative Proposal that is reasonably likely to lead to a Superior Proposal, the Company and EFIH shall promptly notify counsel to Parent of any such proposal or expression of interest third party relating to an Alternative Proposal, and (b) it shall notify NS promptly if any Alternative Proposal is received by it or any negotiations or discussions relating to a potential Alternative Proposal are sought to be initiated or continued with such notice to include unless prohibited by any agreement to which any Debtor is a party or applicable LawKCS, including the material terms of such Alternative Proposal and the identity of the Person or group of Persons making the same. Unless prohibited by any agreement to which any Debtor is a party or applicable Law, the Company and EFIH shall promptly furnish counsel to Parent with copies of any written offer or other information that they make or receive relating to an such Alternative Proposal and shall keep counsel to Parent reasonably informed of any material changes to or seeking such Alternative Proposalnegotiations or discussions; provided, that if such an Alternative Proposal is a Backup Restructuring Proposal, such obligation shall only be applicable if such Backup Restructuring Proposal is reasonably likely to lead to a Superior Proposal. During the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, no Debtor shall enter into any agreement with any Person which prohibits the Company or EFIH from providing information to the Purchasers that the Purchasers are expressly entitled to receive in accordance with this Section 6.2(a) and each of the Debtors shall use its commercially reasonable efforts to amend any existing agreement to which it is a party which prohibits it from providing such information to the Purchasers; provided that, for all purposes of this Agreement, the commercially reasonable efforts of the Debtors shall not include any payments to any counterparty of any such existing agreement or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation. Notwithstanding anything else in this Agreement to contrary, references nothing in this Section 6.2 to the Company’s Subsidiaries do not include the Oncor Entities (subject to Section 6.23). (b) On the date hereof, the Company and its Subsidiaries will immediately cease and cause to be terminated 10.3 shall prevent KCS from taking any existing activities, discussions or negotiations with any Persons conducted prior to the date hereof action with respect to any Alternative Proposalproposal or offer not initiated, other than solicited or encouraged in violation of this Section 10.3 or participating in negotiations or discussions with respect to any Backup Restructuring Proposalsuch a proposal or offer if it is advised by outside legal counsel that it is required to take such action to satisfy the fiduciary duties of the Board of Directors of KCS under Delaware law; provided, however, that KCS shall not be permitted to terminate this Agreement other than as provided in Article 13 hereof. (c) For purposes of this Agreement:

Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 6.2(d) with respect to a Backup Restructuring Proposal, during the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, the The Company and its Subsidiaries shall notshall, and shall use their commercially reasonable efforts to cause its Subsidiaries and their respective directors, officers, employees, investment bankersaccountants, attorneysconsultants, accountants legal counsel, financial advisors, agents and other advisors or representatives (collectively, “Representatives”, with it being acknowledged and agreed that any stockholder of the Company that is not a director, officer, employee, accountant, consultant, legal counsel, financial advisor or agent shall not be deemed to be a Representative of the Company or any of its Subsidiaries for purposes of this Agreement) not to, (i) initiate or solicit, propose, or knowingly facilitate, knowingly encourage or knowingly induce, the submission of, immediately cease and cause to be terminated any Alternative Proposal, in each case except as permitted by clause (ii) hereof; (ii) enter into, maintain or continue discussions or negotiations with any Person parties that may be ongoing with respect to an Alternative Proposal. (b) Subject to Section 6.4(c), Section 6.4(d) and Section 6.4(f), from the execution this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, neither the Company nor any of its Subsidiaries shall, and the Company and its Subsidiaries shall not authorize any of its or their Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Alternative Proposal, other than(ii) enter into or participate in any discussions or negotiations with or furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party relating to an Alternative Proposal or any inquiry or proposal that may reasonably be expected to lead to an Alternative Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent the Recommendation (or recommend an Alternative Proposal or authorize the Company to enter into a written agreement concerning an Alternative Proposal), (iv) fail to publicly reaffirm the Recommendation following any written request by Parent to provide such reaffirmation following an Alternative Proposal (which request may only be made once with respect to such Alternative Proposal absent further material changes in such Alternative Proposal) prior to the earlier of (x) ten (10) Business Days following such request and (y) five Business Days prior to the Company Meeting, unless, in the case of this clause (iiy), if it would be inconsistent with the Board of Directors’ fiduciary duties to comply with such request within such time period, in which case the Company shall comply with such request as promptly as practicable consistent with the Board of Directors’ fiduciary duties or fail to include in the Proxy Statement when mailed, the Recommendation (any of the foregoing in clauses (iii) or (iv), an “Adverse Recommendation Change”); or (v) enter into any agreement in principle, letter of intent, merger agreement, acquisition agreement, option agreement or other similar agreement relating to an Alternative Proposal; provided that the Company shall not enforce and hereby waives any provision of any confidentiality, standstill or similar agreement that would prohibit a Third Party from communicating confidentially an Alternative Proposal to the Board of Directors. (c) Notwithstanding anything contained in Section 6.4(b) to the contrary, if at any time after the execution of this Agreement and prior to obtaining the Company Stockholder Approval, (i) the Company or any board of directors, board of managers or similar governing body of any Debtor), in response to the receipt of its Representatives has received an unsolicited, written Alternative Proposal from a third party, determines that the Board of Directors believes in good faith after consultation with its outside financial advisors and the Company’s outside legal counsel that such Alternative Proposal would and financial advisors, is or may reasonably be likely expected to lead to a Superior Proposal and (ii) the Board of Directors determines in which case good faith, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, then the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with such Third Party and its Representatives, (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries or the business, properties, assets, books or records of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall notify promptly provide to Parent any such information that is provided to any such Person which was not previously provided to or made available to Parent and (C) take any nonappealable, final action that any court of competent jurisdiction orders the Purchasers Company to take. (d) In addition, nothing contained in this Agreement shall prevent the Company or the Board of such determination Directors or any committee thereof from (i) taking and disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to its stockholders in writing promptly after such determination connection with the making or amendment of a tender offer or exchange offer) or from making any disclosure to the Company’s stockholders with regard to the transactions contemplated by this Agreement or an Alternative Proposal which the Board of Directors or any committee thereof determines is reachedreasonably required by applicable Law or fiduciary duty (provided that neither the Company nor its Board of Directors (or any committee thereof) may recommend any Alternative Proposal unless permitted by Section 6.4(f); ), (ii) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or (iii) enter into contacting and engaging in discussions with any written letter of intent, agreement in principle Person or other agreement (whether or not legally binding) that constitutes group and their respective Representatives who has made an Alternative Proposal (an “Alternative Transaction Agreement”). In addition, during solely for the period specified in the first sentence purpose of this Section 6.2(a), if any Debtor makes or receives any written proposal or expression of interest regarding an Alternative Proposal that is reasonably likely to lead to a Superior Proposal, the Company and EFIH shall promptly notify counsel to Parent of any such proposal or expression of interest relating to an Alternative Proposal, with such notice to include unless prohibited by any agreement to which any Debtor is a party or applicable Law, the material terms of clarifying such Alternative Proposal and the terms thereof. (e) After the execution of this Agreement and prior to obtaining the Company Stockholder Approval, the Company shall promptly, and in any event within twenty-four (24) hours, notify Parent after receipt by the Company (or any of its Representatives) of any Alternative Proposal or any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that the Company reasonably believes is considering making, or has made, an Alternative Proposal, which notice shall include the material terms and conditions of any such Alternative Proposal, indication or request. (f) Notwithstanding anything contained in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Board of Directors may, if the Board of Directors determines in good faith (after consultation with outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change (i) in response to a written Alternative Proposal that the Board of Directors has determined in good faith, after consultation with outside legal counsel and its financial advisors, constitutes a Superior Proposal (provided the Company has complied with Section 8.1(c)), or (ii) in response to an Intervening Event. (g) Prior to effecting any Adverse Recommendation Change or Superior Proposal Termination, (i) the Company shall notify Parent, in writing at least three (3) Business Days prior to effecting such Adverse Recommendation Change or Superior Proposal Termination (the “Notice Period”), of its intention to effect such Adverse Recommendation Change or Superior Proposal Termination (which notice shall include the terms and conditions of any Superior Proposal, the identity of the Person or group making such proposal and a copy of Persons making the same. Unless prohibited by most recent draft of any written agreement related thereto (it being understood and agreed that any amendment to which the terms of such Superior Proposal, including any Debtor is revision to price, shall require a party or new Notice Period of at least two (2) Business Days) or, if in response to an Intervening Event, shall include reasonable detail regarding the Intervening Event), (ii) during the applicable LawNotice Period, the Company shall negotiate with Parent in good faith (to the extent Parent wishes to negotiate) to make such adjustment to the terms and EFIH shall promptly furnish counsel to Parent with copies of any written offer or other information that they make or receive relating to an Alternative Proposal and shall keep counsel to Parent reasonably informed of any material changes to such Alternative Proposal; provided, that if such an Alternative Proposal is a Backup Restructuring Proposal, such obligation shall only be applicable if such Backup Restructuring Proposal is reasonably likely to lead to a Superior Proposal. During the period beginning on the date conditions of this Agreement such that the Superior Proposal ceases to be a Superior Proposal or the Adverse Recommendation Change in response to the Intervening Event is no longer necessary, as applicable, and ending on (iii) at the earlier end of the First Closing Date Notice Period, the Board of Directors shall determine in good faith (after consultation with its outside legal counsel and financial advisors) that such Superior Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement proposed by Parent) or the Termination Date, no Debtor shall enter into any agreement with any Person which prohibits the Company or EFIH from providing information Intervening Event continues to the Purchasers that the Purchasers are expressly entitled to receive in accordance with this Section 6.2(a) and each of the Debtors shall use its commercially reasonable efforts to amend any existing agreement to which it is a party which prohibits it from providing such information to the Purchasers; provided that, for all purposes of this Agreement, the commercially reasonable efforts of the Debtors shall not include any payments to any counterparty of any such existing agreement or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation. Notwithstanding anything else in this Agreement to contrary, references in this Section 6.2 to the Company’s Subsidiaries do not include the Oncor Entities (subject to Section 6.23)necessitate an Adverse Recommendation Change. (b) On the date hereof, the Company and its Subsidiaries will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted prior to the date hereof with respect to any Alternative Proposal, other than with respect to any Backup Restructuring Proposal. (c) For purposes of this Agreement:

Alternative Proposals. (a) Notwithstanding anything to the contrary hereinThe Company agrees that, except as specifically permitted and to the extent consented to by Section 6.2(dthe Noteholders, neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to a Backup Restructuring merger, reorganization, share exchange, consolidation or similar transaction involving (or any purchase, issuance or exchange of 20% or more of the assets or indebtedness or any equity or debt securities of) it or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"). Notwithstanding the foregoing, during the period beginning on the date of nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Alternative Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreements (as defined below), it being understood that such confidentiality agreement need not prohibit the making, or amendment, of an Alternative Proposal; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Alternative Proposal; or (D) recommending such an Alternative Proposal to the stockholders and ending on the earlier noteholders of the First Closing Date or Company, if and only to the Termination Dateextent that in the case referred to in this clause (D), the Board of Directors of the Company and its Subsidiaries shall not, and shall use their commercially reasonable efforts to cause their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not to, (i) initiate or solicit, propose, or knowingly facilitate, knowingly encourage or knowingly induce, the submission of, any Alternative Proposal, in each case except as permitted by clause (ii) hereof; (ii) enter into, maintain or continue discussions or negotiations with any Person with respect to, any Alternative Proposal, other than, in the case of this clause (ii), if the Company Board (or any board of directors, board of managers or similar governing body of any Debtor), in response to the receipt of an unsolicited, written Alternative Proposal from a third party, determines in good faith after consultation with its outside financial advisors and outside legal counsel that such action is necessary in order for its directors to comply with their fiduciary duties under applicable law and (ii) determines in good faith (after consultation with its financial advisor) that such Alternative Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable from a financial point of view to the Company and the Persons to whom fiduciary duties are owed by the Board of Directors than the transactions contemplated by this Agreement (any such more favorable Alternative Proposal would reasonably be likely being referred to lead to in this Agreement as a "Superior Proposal (in which case the Company shall notify the Purchasers of such determination in writing promptly after such determination is reached); or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding) that constitutes an Alternative Proposal (an “Alternative Transaction Agreement”Proposal"). In addition, during The Company agrees that it will take the period specified necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2(a), Section. The Company agrees that it will notify the Holders immediately if any Debtor makes such inquiries, proposals or receives offers are received by, any written proposal such information is requested from, or expression any such discussions or negotiations are sought to be initiated or continued with, any of interest regarding an Alternative Proposal that is reasonably likely to lead to a Superior Proposalits representatives indicating, in connection with such notice, the Company name of such Person and EFIH the material terms and conditions of any proposals or offers and thereafter shall promptly notify counsel to Parent keep the Holders informed, on a current basis, on the status and terms of any such proposal proposals or expression of interest relating to an Alternative Proposal, with such notice to include unless prohibited by any agreement to which any Debtor is a party or applicable Law, the material terms of such Alternative Proposal offers and the identity of the Person or group of Persons making the same. Unless prohibited by any agreement to which any Debtor is a party or applicable Law, the Company and EFIH shall promptly furnish counsel to Parent with copies of any written offer or other information that they make or receive relating to an Alternative Proposal and shall keep counsel to Parent reasonably informed of any material changes to such Alternative Proposal; provided, that if such an Alternative Proposal is a Backup Restructuring Proposal, such obligation shall only be applicable if such Backup Restructuring Proposal is reasonably likely to lead to a Superior Proposal. During the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, no Debtor shall enter into any agreement with any Person which prohibits the Company or EFIH from providing information to the Purchasers that the Purchasers are expressly entitled to receive in accordance with this Section 6.2(a) and each of the Debtors shall use its commercially reasonable efforts to amend any existing agreement to which it is a party which prohibits it from providing such information to the Purchasers; provided that, for all purposes of this Agreement, the commercially reasonable efforts of the Debtors shall not include any payments to any counterparty status of any such existing agreement or the undertaking of, or response to, any action, suit, claim, cause of action or other form of litigation. Notwithstanding anything else in this Agreement to contrary, references in this Section 6.2 to the Company’s Subsidiaries do not include the Oncor Entities (subject to Section 6.23). (b) On the date hereof, the Company and its Subsidiaries will immediately cease and cause to be terminated any existing activities, discussions or negotiations negotiations. The Company also agrees that it will take all steps to maintain and enforce any heretofore executed confidentiality agreements in connection with any Persons conducted prior to the date hereof with respect to any its consideration of a potential Alternative Proposal, other than with respect to any Backup Restructuring Proposal. (c) For purposes of this Agreement:

Alternative Proposals. (a) Notwithstanding anything to the contrary herein, except as specifically permitted by Section 6.2(d) with respect to a Backup Restructuring Proposal, during the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, the Company and its Subsidiaries shall notThe Fund will not authorize, and shall will use their commercially reasonable its best efforts to cause their respective its officers, trustees, directors, officers, employees, investment bankers, attorneys, accountants and other advisors employees or representatives (collectively, “Representatives”) agents not to, (i) directly or indirectly, solicit, initiate or solicit, proposeencourage any inquiries relating to, or knowingly facilitatethe making of any proposal which constitutes, knowingly encourage an Alternative Proposal, or knowingly induce, the submission of, recommend or endorse any Alternative Proposal, or participate in each case except as permitted by clause (ii) hereof; (ii) enter into, maintain or continue any discussions or negotiations negotiations, or provide third parties with any Person with respect tononpublic information, relating to any Alternative Proposal, other than, in the case of this clause (ii), if the Company Board (such inquiry or any board of directors, board of managers or similar governing body of any Debtor), in response to the receipt of an unsolicited, written Alternative Proposal from a third party, determines in good faith after consultation with its outside financial advisors and outside legal counsel that such Alternative Proposal would reasonably be likely to lead to a Superior Proposal (in which case the Company shall notify the Purchasers of such determination in writing promptly after such determination is reached); or (iii) enter into any written letter of intent, agreement in principle or other agreement (whether or not legally binding) that constitutes an Alternative Proposal (an “Alternative Transaction Agreement”). In addition, during the period specified in the first sentence of this Section 6.2(a), if any Debtor makes or receives any written proposal or expression of interest regarding an Alternative Proposal that is reasonably likely otherwise facilitate any effort or attempt to lead to a Superior Proposal, the Company and EFIH shall promptly notify counsel to Parent of any such proposal or expression of interest relating to an Alternative Proposal, with such notice to include unless prohibited by any agreement to which any Debtor is a party or applicable Law, the material terms of such Alternative Proposal and the identity of the Person or group of Persons making the same. Unless prohibited by any agreement to which any Debtor is a party or applicable Law, the Company and EFIH shall promptly furnish counsel to Parent with copies of any written offer or other information that they make or receive relating to implement an Alternative Proposal and shall keep counsel to Parent reasonably informed of any material changes to such Alternative Proposal; provided, however, that if such the Fund may, and may authorize and permit its officers, trustees, directors, employees or agents to provide third parties with nonpublic information reasonably necessary to facilitate an Alternative Proposal is a Backup Restructuring Proposal, such obligation shall only recommend or endorse any Alternative Proposal with or by any third party, and participate in discussions and negotiations with any third party relating to any Alternative Proposal, if the Fund's Board of Trustees, after having consulted with and considered the advice of outside counsel, has reasonably determined in good faith that the failure to do so would be inconsistent with its fiduciary duties to the Fund's Members under applicable if such Backup Restructuring Proposal is reasonably likely to lead to Law. If the Fund enters into a Superior Proposal. During the period beginning on the date of this Agreement and ending on the earlier of the First Closing Date or the Termination Date, no Debtor shall enter into any definitive agreement with any Person which prohibits the Company or EFIH from providing information to the Purchasers that the Purchasers are expressly entitled to receive in accordance with this Section 6.2(a) and each of the Debtors shall use its commercially reasonable efforts to amend any existing agreement to which it is a party which prohibits it from providing such information to the Purchasers; provided that, for all purposes of this Agreement, the commercially reasonable efforts of the Debtors shall not include any payments respect to any counterparty of any Alternative Proposal, it shall concurrently with entering into such existing agreement or the undertaking ofpay, or response to, any action, suit, claim, cause of action or other form of litigationto be paid to Zenith the expenses outlined in Section 9.1(b). Notwithstanding anything else in this Agreement to contrary, references in this Section 6.2 to the Company’s Subsidiaries do not include the Oncor Entities (subject to Section 6.23). (b) On the date hereof, the Company and its Subsidiaries The Fund will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted prior to the date hereof of this Agreement with any parties other than Zenith with respect to any of the foregoing. The Fund shall immediately advise Zenith following the receipt by it of any Alternative Proposal and the material terms and conditions thereof, and the identity of the person making any such Alternative Proposal, other than and advise Zenith of any developments with respect to any Backup Restructuring Proposalsuch Alternative Proposal immediately upon the occurrence thereof. (c) For purposes of this Agreement: