Common use of Operating Covenants Clause in Contracts

Operating Covenants. From the Execution Date until the Closing or, if earlier, the termination of this Agreement as contemplated hereby, except (t) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed): (a) Sellers will: (i) subject to any Bankruptcy Court order to the contrary, operate the Assets in the Ordinary Course of Business; (ii) maintain or cause its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.

Operating Covenants. From Seller agrees to operate and maintain the Execution Date until Property prior to the Closing orin a manner consistent with its current operating procedures, if earlierand shall not, without the termination prior written consent of this Agreement as contemplated herebyPurchaser, except (t) as required by this Agreement or do any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):following: (a) Sellers will: Enter into any contract (i) other than leases which are subject to clause (b) below) that will not be fully performed by Seller on or before the Closing Date or that will not be susceptible of cancellation by Purchaser on or after the Closing Date upon thirty (30) days or less prior written notice, without cost or liability to Purchaser, or amend, modify or supplement any Bankruptcy Court order existing contract (other than leases which are subject to the contrary, operate the Assets clause (b) below) or agreement in the Ordinary Course of Business; (ii) maintain or cause its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; andrespect. (b) no Enter into any new lease or amend, modify, supplement or terminate any existing lease. Seller shall:agrees that, after the Review Period, Purchaser shall have the right, without Seller’s consent, to enter into new leases affecting all or any portion of the Property, as long as any such lease will only take effect from and after the Closing Date. Seller agrees to reasonably cooperate with Purchaser’s leasing efforts. (ic) sellFail to maintain its current insurance covering Seller’s interest in the Property or advise Purchaser promptly of the occurrence of any fire or other casualty affecting the Property. (d) Sell, lease assign or otherwise transfer create any Assetright, title or otherwise voluntarily divest interest whatsoever in or relinquish to the Property (including any right so-called “back-up” contracts which are expressly prohibited) or assetcreate any voluntary lien, thereon from and after the date of the Title Commitment, other than (A) sales liens or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures encumbrances noted in the Ordinary Course of Business which have been replaced Title Commitment, without promptly discharging same or otherwise complying with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect;Section 4.04. (iiie) amend or modify in Intentionally take any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following action which would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for violating any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assetsrepresentations and warranties of Seller contained in this Contract.

Operating Covenants. From Between the Execution Effective Date until and the Closing or, if earlier, the termination of this Agreement as contemplated herebyDate, except (ti) as otherwise required, contemplated or permitted by this Agreement including, in relation to Section 6.3(a)(i) below, Section 1.3, Section 3.2 and Section 6.22, (ii) as set forth in Section 6.3 of the EME Disclosure Schedule, (iii) as required by this Agreement or any other Transaction DocumentApplicable Law, (uiv) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, Contract in existence as applicableof the Effective Date, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations Permitted Transfers or (zvi) as otherwise consented to in writing by Buyer with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned): (a) the Sellers willshall not permit any Controlled Acquired Company to and shall use their Commercially Reasonable Efforts not to permit any Non-Controlled Acquired Company to: (i) transfer, issue, sell or dispose of any shares of capital stock or other securities of any such Acquired Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any such Acquired Company except to a Controlled Acquired Company that is a Wholly Owned Subsidiary of MEC BV; (ii) effect any recapitalization, reclassification, stock split or like change in the capitalization of any such Acquired Company that reduces the percentage of the equity or voting power therein that the Purchaser and Purchaser Designees will acquire therein, directly or indirectly, when they acquire the Shares and the Owner Notes; (iii) amend any of the respective Governing Documents of any Controlled Acquired Company except in a manner reasonably calculated to facilitate closing of the Contemplated Transactions or to achieve the purposes of Section 6.9 or in connection with a transaction not prohibited by Section 6.3(a); (iv) except as provided under the EME BV Severance Plans and under any other employment arrangements listed in the EME Disclosure Schedule, increase the annual level of compensation and benefits of any employee of an Acquired Company earning annual cash compensation in excess of $250,000 (or its equivalent in foreign currency) or of employees of an Acquired Company generally; (v) incur any indebtedness for money borrowed except for (A) refinancings of existing indebtedness, if any, that are in process or that are reasonably required by pending maturities subject to any Bankruptcy Court order to such processes or maturities (as the contrarycase may be) having been disclosed in the EME Disclosure Schedule or renewal of existing working capital facilities or the renewal of other lines of credit, operate the Assets (B) drawings under existing lines of credit or under new working capital or revolving lines of credit in the Ordinary Course of Business; , (iiC) maintain indebtedness to MEC BV or cause its Affiliates to maintain the books of account and records relating to the Assets in the usualany Wholly Owned Subsidiary thereof, regular and ordinary manner, in accordance with its usual accounting practices; (iiiD) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures planned indebtedness in the Ordinary Course of Business which have been replaced with under existing credit lines, or (E) indebtedness represented by Owner Notes or that is contributed to the capital of an item of substantially equal suitability and (B) dispositions of Excluded AssetsAcquired Company or that represents a Payment Obligation to an Acquired Company; (iivi) enter into any Major Contract, or waive any material Contract right under, or enter into a material amendment of, any existing Major Contract, except in the Ordinary Course of Business; provided that if entered into in each case that the Sellers shall promptly provide the Purchaser with notice prior to the Execution occurrence of any of the foregoing; (vii) make any change in any method of accounting for financial reporting with respect to any such Acquired Company except for any such change after the Effective Date would be required by reason of a concurrent change in or interpretation of US GAAP or Local GAAP, whichever is used by such Acquired Company as of the Effective Date to be listed prepare its financial statements; (viii) make any capital expenditure with respect to any such Acquired Company in excess of the aggregate amount for the applicable period set forth in the capital expenditure budget therefor as disclosed in the EME Disclosure Schedule 3.05(a) other than (A) Contracts of the type described or posted on Intralinks, except for reasonable expenditures in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into excess thereof made in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in emergency or other force majeure events affecting any material respectsuch Acquired Company; (iiiix) amend enter into any Affiliate Contracts, or amend, modify or change in any material respect any outstanding Affiliate Contract or terminate waive any Purchased Contract material rights thereunder; (x) effect a Material Purchase or Sale save for any transactions between MEC BV and its Wholly Owned Subsidiaries. For this purpose, the term "Material Purchase or Sale" means (A) the purchase or sale by an Acquired Company of an asset (other than termination fuel stocks) having a value in excess of $10,000,000 (or expiration its equivalent in accordance with its termsforeign currency) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election the purchase or Non-Income Tax method sale by an Acquired Company of accounting an asset having a value in excess of $500,000 (or make any new Non-Income Tax election or adopt any new Non-Income Tax method its equivalent in foreign currency) outside the Ordinary Course of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.Business;

Operating Covenants. From the Execution Date until the Closing orTenant shall, if earlierand shall cause Guarantor and its respective subsidiaries to, the termination of this Agreement as contemplated hereby, except (t) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed): (a) Sellers will: (i) subject to any Bankruptcy Court order to the contrary, operate the Assets in the Ordinary Course of Business; (ii) maintain or cause its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than comply (A) sales or other dispositions with the covenants set forth in Article VI of materialsthat certain Third Amended and Restated Term Loan and Revolving Credit Agreement, suppliesdated as of August 2, machinery2002 among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, equipment▇▇▇▇▇▇ ▇▇▇▇▇▇▇ USA Corporation, improvements or other personal property or fixtures ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Power Group, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energy Corporation, certain guarantors, certain lenders and Bank of America, N.A., as Administrative Agent and Collateral Agent (the "Lender") (the "CREDIT AGREEMENT"), in the Ordinary Course same manner and to the same effect as if the terms of Business which have been replaced with an item Article VI of substantially equal suitability the Credit Agreement were set forth in full herein and (B) dispositions upon refinancing of Excluded Assets; the debt described in the Credit Agreement, with the covenants set forth in the credit agreement that replaces the Credit Agreement (iiany such replacement credit agreement, the "SENIOR CREDIT AGREEMENT") enter into any material Contract that if entered into prior pertaining to the Execution Date would be required to be listed matters addressed in Disclosure Schedule 3.05(a) other than (A) Contracts Article VI of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into Credit Agreement in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts same manner and to notify Buyer of the same effect as if the terms of any such Contract prior covenants of the Senior Credit Agreement were set forth herein, and subject to the execution thereof), (B) confidentiality agreements entered into conditions set forth in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have the sentence, after giving effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension modification, amendment or waiver of the Credit Agreement or Senior Credit Agreement, as the case may be, a copy of which has been delivered to Landlord, and for such purpose such terms of Article VI of the Credit Agreement or Senior Credit Agreement, as the case may be, and such other relevant provisions and definitions of the Credit Agreement or Senior Credit Agreement, as the case may be, as are expressly referenced therein and amendments, modifications, and waivers thereto are incorporated herein by reference. Notwithstanding, and in limitation period of, the foregoing, no amendment or modification to, or waiver of, Article VI of the Credit Agreement or Senior Credit Agreement, as the case may be, shall be effective and binding upon Landlord (a) if the Lender or lender or lenders that replace the Lender (the Lender or such replacement lender, the "SENIOR LENDER") receives or is entitled to receive any payment or grant any other consideration ("SENIOR LENDER CONSIDERATION") as a condition to such amendment, modification or waiver or, if such consideration is required, unless concurrently with payment to the Senior Lender Landlord receives Landlord's Consideration and (b) unless such amendment or modification is executed or waiver granted no later than the earlier to occur of (x) sixty (60) days following the earlier to occur of the date on which Tenant notified the Senior Lender or the Senior Lender had actual knowledge of the breach under the Credit Agreement or Senior Credit Agreement, as the case may be, that gave rise to the need for an amendment, modification or waiver and (y) the earlier of the date on which the Senior Lender causes the obligations of Tenant and/or Guarantor under the Credit Agreement or the Senior Credit Agreement, as the case may be, to become due prior to their stated maturity, or sixty (60) days after Landlord notified Tenant of a breach of any covenant. If at any time Tenant shall not be subject to the Credit Agreement or any Senior Credit Agreement that contains covenants pertaining to the matters addressed in Article VI of the Credit Agreement, Tenant shall, and shall cause Guarantor and each of its subsidiaries to, comply with the covenants set forth in the most recent Senior Credit Agreement pertaining to the matters addressed in Article VI of the Credit Agreement in the same manner and to the same effect as if the terms of the applicable provisions of such Senior Credit Agreement were set forth in full herein, and giving effect to any Non-Income Tax claim modification, amendment or assessment waiver thereto that complies with respect to the Assetsprovisions of the foregoing sentence.

Operating Covenants. From the Execution Date date of this Agreement until the Closing or, if earlier, Effective Time or the earlier termination of this Agreement as contemplated herebyin accordance with its terms, except (t) as required by applicable Law, as set forth in Section 6.1 of the Company Disclosure Letter, as otherwise expressly provided for in this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as Parent may otherwise consented to consent in writing by Buyer (which such consent shall not to be unreasonably withheld, conditioned or delayed): (a) Sellers the Company will: (i) subject to any Bankruptcy Court order to , and will cause each of the contraryCompany Subsidiaries to, operate the Assets conduct its business in all material respects in the Ordinary Course ordinary course of Business; (ii) maintain or cause business consistent with past practices, and will use its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on preserve intact its business organization and goodwill and preserve its relationships with Governmental Authorities, customers, suppliers, business associates, distributors, strategic and joint venture partners and others having business dealings with it, and keep available the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause services of its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conductedemployees; and (b) no Seller shallthe Company will not, and will not permit any Company Subsidiary to: (i) sellamend, lease modify or adopt any of the Constituent Documents, or the terms of any Security, of the Company or any Company Subsidiary or any Constituent Documents to which any such entities are a party; (ii) except for the Special Dividend, declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of any of its Securities, other than dividends or distributions by wholly-owned Company Subsidiaries to the Company or other wholly-owned Subsidiaries; (iii) split, combine, subdivide or reclassify any of its Securities or issue or propose or authorize the issuance of any other Securities or Equity Rights in respect of, in lieu of, or in substitution for, its Securities, other than issuances of shares of Common Stock in connection with the exercise of Equity Rights that are outstanding on the date of this Agreement or granted thereafter in accordance with Section 6.1(b)(v)(A); (iv) repurchase, redeem or otherwise transfer acquire any AssetSecurities or Equity Rights of the Company or any Company Subsidiary, or otherwise voluntarily divest any other equity interests or relinquish any right rights, warrants or assetoptions to acquire any such Securities, other than (A) sales or other dispositions the acquisition by the Company of materialsshares of Common Stock in connection with the surrender of shares of Common Stock by holders of Equity Rights in order to pay the exercise price thereof, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions the withholding of Excluded Assetsshares of Common Stock to satisfy Tax obligations with respect to awards granted pursuant to the Stock Plans or pursuant to individual equity compensation award agreements, (C) the acquisition by the Company of Equity Rights of the Company in connection with the forfeiture of such Equity Rights or (D) as required by any Benefit Plan as in effect on the date of this Agreement; (iiv) enter into issue, sell, transfer, dispose of, grant, pledge or otherwise encumber any material Contract that if entered into prior to Securities or Equity Rights of the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) Company or any Company Subsidiary other than (A) Contracts issuances of Equity Rights in the ordinary course of business consistent with past practices in accordance with the terms of the type described Stock Plans or pursuant to individual award agreements with directors, officers, employees or agents of the Company or the Company Subsidiaries, in all cases subject to the limitations set forth in Sections 6.1(b)(v), (b)(xiii) or (b)(xiv) of the Company Disclosure Letter, (B) issuances of Common Stock in connection with the exercise of or settlement of Equity Rights that are outstanding on the date of this Agreement or any Equity Rights granted after the date hereof in accordance with the foregoing clause (A) and (C) issuances of Securities between or among the Company and any wholly-owned Company Subsidiaries; (vi) enter into any Contract with respect to the voting of its Securities; (vii) make any acquisition (including by merger, consolidation, acquisition of assets, or otherwise) of any business or any corporation, partnership, limited liability company, joint venture or other business organization or division thereof or any property or assets (other than raw materials, inventories and supplies in the ordinary course of business consistent with past practice) for consideration in an amount in excess of $15,000,000; (viii) transfer, sell, assign, lease, license, surrender, cancel, abandon, divest, allow to lapse or otherwise dispose of any material asset, material product line, material line of business, material right or material property (including any interest in a partnership, joint venture or similar entity), other than the sale of finished products or the disposal of unused, excess or obsolete tangible assets or properties in the ordinary course of business consistent with past practice; (ix) make any loans, advances or capital contributions to, or investments in, any other Person other than (A) by the Company or any wholly-owned Company Subsidiary to or in the Company or any wholly-owned Company Subsidiary or (B) pursuant to any Contract or other legal obligation existing at the date of this Agreement set forth on Section 6.1(b)(ix) of the Company Disclosure Letter; (x) incur, guarantee or assume any Indebtedness, or issue or sell any debt securities, guarantees, loans or advances not in existence as of the date of this Agreement, other than (A) Indebtedness incurred in the ordinary course of business consistent with past practices not to exceed $15,000,000 in the aggregate, (B) Indebtedness incurred in the ordinary course of business under the Company Credit Agreement and other facilities or lines of credit which are in existence on the date of this Agreement (without amendment or waiver increasing the maximum credit limit under the Company Credit Agreement and any such other facilities or lines of credit), (C) Indebtedness in replacement of existing Indebtedness on customary commercial terms, but in all cases consistent in all material respects with the Indebtedness being replaced, and (D) guarantees by the Company of Indebtedness of wholly-owned Company Subsidiaries or guarantees by Company Subsidiaries of Indebtedness of the Company; (xi) make or commit to make any capital expenditure, except for (A) aggregate expenditures in an amount not in excess of (and for projects materially consistent with) the capital expenditure budget made available to Parent prior to the date of this Agreement (the amount of the capital expenditure budget being set forth in Section 3.05(a)(iii6.1(b)(xi) of the Company Disclosure Letter) and Section 3.05(a)(viii(B) entered into additional expenditures in an amount not to exceed $15,000,000 in the Ordinary Course aggregate during any 12-month period; (xii) adversely amend, modify, terminate or waive any material right under any Company Contract or material Permit, in each case, other than in the ordinary course of Business business consistent with past practice; (xiii) except as required by any Benefit Plan as currently in effect on the date of this Agreement or by the terms of this Agreement, grant any material increase (determined with reference to the compensation paid to the individuals involved) in, or accelerate the vesting or payment of, the compensation or benefits of any director, officer, employee or consultant of the Company or any Company Subsidiary; provided that Sellers shall use commercially reasonable efforts the Company or any Company Subsidiary may grant material increases in base salaries and target bonuses to notify Buyer non-executive employees, non-executive officers and agents in the ordinary course of business consistent with past practices; (xiv) establish, adopt, or enter into any agreement or arrangement that would be a Benefit Plan if in effect on the date hereof, or materially amend any Benefit Plan, other than (A) as required by applicable Law or the terms of any Benefit Plan as in effect as of the date of this Agreement or (B) with respect to new hires or employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business consistent with past practice; provided that (1) in the case of new hires, such Contract prior agreements, plans, programs or Contracts, or any amendments or modifications thereto, are consistent with the past practices of entering into such agreements, plans, programs or Contracts for newly hired employees in similar positions and (2) in the case of promotions, such amendments or modifications are consistent with the past practices of making such amendment or modifications for promoted employees in similar positions; (xv) effect any “plant closing” or “mass layoff” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any comparable state or non-U.S. Law; (xvi) settle or compromise any material Proceeding (excluding settlements and compromises relating to Taxes, which are the execution thereofsubject of Section 6.1(b)(xviii)), other than in the ordinary course of business consistent with past practice or as otherwise permitted in accordance with Section 6.9; (xvii) adopt or implement a plan of complete or partial liquidation or resolution providing for or authorizing such liquidation or a dissolution, merger, restructuring, consolidation, recapitalization or other reorganization of the Company or any Significant Company Subsidiary; (xviii) (A) make, revoke or amend any material election relating to Taxes, including an election under Section 965(h) of the Code, (B) confidentiality agreements entered into in accordance with the Bid Procedures Ordersettle or compromise any material Proceeding relating to material Taxes, (C) contracts make a written request for a ruling or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and determination of a Taxing Authority relating to material Taxes, (D) Contracts that would not adversely affect the Assets in amend any material respectTax Return, (E) surrender or waive any claim to a material Tax refund of the Company or any Company Subsidiary, (F) enter into any closing agreement or similar Contract with respect to material Taxes with a Taxing Authority or (G) change any material tax accounting methods in a materially adverse manner; (iiixix) amend or modify in make any material change with respect to accounting policies or terminate procedures, except as may be required by changes in GAAP or Law after the date of this Agreement (or as may be required to be implemented after the date of this Agreement pursuant to changes in GAAP prior to the date hereof), change its fiscal year or make any Purchased Contract (other than termination material change in internal accounting or expiration in accordance with its terms) disclosure controls and procedures that could reasonably be expected to materially adversely impact the Company or any Permits (including Environmental Permits) required for the operation of the Assets as presently conductedCompany Subsidiary; (ivxx) change in the methods Company’s capacity as a shareholder of accounting the UBBP Companies, (A) agree to amend, modify or accounting practice by Sellerswaive any material provision of the UBBP Shareholders Agreement or any of the Constituent Documents of the UBBP Companies, except as required by concurrent changes or (B) authorize, approve or consent to any matter set forth in Applicable Law item (e) of Schedule 5 of the UBBP Shareholder Agreement or GAAP as agreed to by its independent public accountantsitems (a), (b), (c), (d), (h), (i) or (j) of Schedule 6 of the UBBP Shareholder Agreement; or (vxxi) propose, authorize, agree or commit to the extent do any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assetsforegoing.

Operating Covenants. From The Merger Agreement provides that, between May 8, 2025 and the Execution Date until earlier of the Closing or, if earlier, Effective Time and the valid termination of this Agreement as contemplated herebythe Merger Agreement, except (t) as set forth on the disclosure schedules, as required TABLE OF CONTENTS by this Agreement applicable law or any other Transaction Documentregulation or as expressly required by the Merger Agreement, or otherwise with the prior written consent of Parent, PHX will, and will cause each of its subsidiaries to, (u1) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or conduct its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage operations in all material respects in the Ordinary Course ordinary course of Businessbusiness, consistent with past practice; (y) for emergency operations or (z) as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed): (a) Sellers will: (i) subject to any Bankruptcy Court order to the contrary, operate the Assets in the Ordinary Course of Business; (ii) maintain or cause its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv2) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use its commercially reasonable efforts to maintain or cause and preserve substantially intact its Affiliates to maintain all Permits business organization; (including Environmental Permits3) required for the operation of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use its commercially reasonable efforts to notify Buyer preserve its relationships with key employees, customers, suppliers, vendors, contractors, lessors, lessees and others having significant business dealings with PHX or any of its subsidiaries and (4) comply in all material respects with applicable Law. The Merger Agreement also provides that, notwithstanding the foregoing, except as set forth on the disclosure schedules, as required or prohibited by applicable law or as expressly required by the Merger Agreement, or otherwise with the prior written consent of Parent, PHX shall not, and shall not permit any of its subsidiaries to: • amend, modify, waive, rescind or otherwise change PHX’s or any of its subsidiaries’ certificate of incorporation, bylaws or other comparable charter or organizational documents; ​ • issue, sell, pledge, split, dispose of, grant, transfer or encumber any shares of capital stock of, or other equity interests in, PHX or any of its subsidiaries, or any rights based on the value of any such equity interests (except for transactions between PHX and any wholly owned subsidiary or between wholly owned subsidiaries), other than the vesting or settlement of PHX equity awards outstanding as of May 8, 2025 or granted after May 8, 2025 and not in violation of the Merger Agreement, in each case, in accordance with the terms of the applicable PHX equity plan and award agreements thereunder; ​ • except in the ordinary course of business consistent with past practice, directly or indirectly, sell, lease, license, sell and leaseback, abandon, mortgage or otherwise encumber or dispose of or subject to any lien (other than certain permitted liens) in whole or in part any of its properties, assets (other than any intellectual property) or rights or any interest therein (in each case, other than for any sale, lease, license, sale and leaseback, abandonment (other than with respect to terminations of mineral interests based on the expiration thereof without any affirmative action by PHX or any affiliates of PHX), mortgage or other encumbrance or disposal that would be immaterial to PHX); provided, that the foregoing does not restrict (A) any such Contract prior transaction between or among PHX and any wholly owned subsidiaries (or between or among any such subsidiaries), or (B) any such transaction pursuant to requirements of contracts of PHX or any of its subsidiaries that are in existence of the execution date of May 8, 2025 and on the terms in effect on the date of May 8, 2025 that have been made available to Parent; ​ • sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of, or grant a third person any rights under or with respect to, any PHX intellectual property (other than non-exclusive licenses granted to customers in the ordinary course of business or with respect to immaterial or obsolete intellectual property); ​ • disclose any material trade secrets of PHX or any PHX subsidiary to any other person (other than in the ordinary course of business to a Person bound by adequate confidentiality obligations); ​ • authorize, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other equity interests (other than dividends paid by a wholly owned subsidiary to PHX or another wholly owned subsidiary), other than regular quarterly cash dividends with customary record and payment dates on Shares not in excess of $0.04 per Share; ​ • reclassify, combine, split, subdivide or make any similar change or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of PHX’s capital stock or other equity interests or the equity interests of any PHX subsidiary, except (A) the withholding or disposition of Shares to satisfy withholding tax obligations with respect to PHX equity awards in accordance with the terms of the applicable PHX equity plan and the award agreements evidencing such PHX equity awards, (B) confidentiality agreements entered into in accordance with upon the Bid Procedures Order, forfeiture of outstanding PHX equity awards or (C) contracts cash dividends paid to PHX or agreements entered into in connection any wholly owned subsidiary by a wholly owned subsidiary with the Bankruptcy Cases regard to its capital stock or other equity interests; ​ TABLE OF CONTENTS • merge, amalgamate or consolidate PHX or any subsidiary with any person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of PHX or any subsidiary, other than transactions solely between or among any such subsidiaries; ​ • acquire (including by merger, amalgamation, consolidation or acquisition of stock or assets) any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets equity interest in any material respect; (iii) amend person or modify in the assets of any material respect person or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellersbusiness, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election loan, advance or adopt capital contribution to, or investment in, any new Non-Income Tax method person or business in each case in an amount in excess of accounting with respect to $100,000 in the Assetsaggregate; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.​ •

Operating Covenants. From Pursuant to the Execution Date Merger Agreement, from the date of the Merger Agreement until the Closing or, if earlier, the termination of this Agreement as contemplated herebyEffective Time, except as (ti) as disclosed in the confidential disclosure letter that AveXis delivered to Parent and Purchaser in connection with the execution of the Merger Agreement, (ii) specifically permitted or required by this Agreement or any other Transaction Documentthe Merger Agreement, (uiii) as required by any lease, Contractapplicable law, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (viv) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer Parent (which consent shall will not be unreasonably withheld, conditioned delayed or delayed): (a) Sellers will: (i) subject conditioned), AveXis has agreed to, and has agreed to any Bankruptcy Court order cause each of its subsidiaries to, conduct its business in the ordinary course and, to the contraryextent consistent therewith, operate the Assets in the Ordinary Course of Business; (ii) maintain or cause its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to to: preserve intact its present business organization; maintain or cause in effect all approvals, authorizations, certificates, registrations, licenses, exemptions, permits and consents of governmental entities; keep available the services of its Affiliates to maintain all Permits (including Environmental Permits) required for officers and employees; and preserve its present relationships with customers, suppliers, licensors, licensees and distributors and others having material business dealings with it. In addition, during the operation of the Assets same period, except as presently conducted; and (b) no Seller shall: (i) selldisclosed in the confidential disclosure letter that AveXis delivered to Parent and Purchaser in connection with the execution of the Merger Agreement, lease (ii) specifically permitted or otherwise transfer any Assetrequired by the Merger Agreement, (iii) required by applicable law, or otherwise voluntarily divest (iv) consented to in writing by Parent (which consent will not be unreasonably withheld, delayed or relinquish conditioned), AveXis has agreed not to, and has agreed not to permit any right of its subsidiaries to, subject to certain exceptions: • declare, set aside or assetpay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly-owned subsidiary of AveXis to its parent; • split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; • repurchase, redeem or otherwise acquire any shares of capital stock of AveXis or any of its subsidiaries or options, warrants, convertible or exchangeable securities, stock-based units (Aperformance-based or otherwise) or other rights to acquire any such shares of capital stock; • issue, grant, deliver or sell any shares of its capital stock or options, warrants, convertible or exchangeable securities, stock-based units (performance-based or otherwise) or other rights to acquire such shares, any indebtedness with voting rights or other rights that give any person the right to receive any economic or voting interest of a nature accruing to the holders of Shares; • amend its certificate of incorporation, by-laws or other comparable organizational documents; • acquire or agree to acquire, in a single transaction or a series of related transactions, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or any other person for aggregate consideration in excess of a specified threshold; • except as required by the terms of employee benefit plans and agreements in effect on the date of the Merger Agreement, (i) adopt, enter into, establish, terminate, materially amend or modify any collective bargaining agreement or material employee benefit plan or agreement; (ii) grant to any director or executive officer any increase in compensation; (iii) grant to any employee any increase in the target amount of his or her annual cash bonus; (iv) make salary increases that, in the aggregate, exceed 5% of all employees' annual base salaries and base wages; (v) grant to any director or executive officer any increase in severance or termination pay; (vi) enter into any employment, consulting, severance or termination agreement with any director or with any employee whose annual base salary exceeds, or would exceed, $300,000; (vii) hire, or agree to hire, any employee, other than in the ordinary course consistent with past practice; or (viii) take any action to accelerate any rights or benefits under any employee benefit plan or agreement; provided that neither the restrictions set forth in the fourth bullet of this section nor the restrictions set forth in clauses (i)-(viii) of this bullet shall restrict AveXis or any of its subsidiaries from entering into or making available to newly hired employees or to employees, in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements (including incentive grants); • make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of AveXis except as may be required by concurrent changes in (i) GAAP (or any authoritative interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (ii) by law, including Regulation S-X under the Securities Act; • sell, divest, lease (as lessor), license or otherwise dispose of, or pledge, encumber or otherwise subject to any lien, any properties or assets that are material, individually or in the aggregate, to AveXis and its subsidiaries, taken as a whole, except (i) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability (A) inventory and (B) dispositions excess or obsolete properties or assets, in each case, in the ordinary course of Excluded Assets; business, (ii) the granting of non-exclusive licenses for intellectual property in the ordinary course of business pursuant to agreements with contract manufacturers, contract research organizations and other service providers where the license is incidental to and not the primary purpose of the agreement or (iii) abandonments of patent applications in the ordinary course of prosecution, where a continuation, continuation-in-part, request for continued examination or divisional application (or foreign equivalent of any of the foregoing) is filed; • adopt or implement any stockholder rights plan or similar arrangement; • adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of AveXis or any of its subsidiaries; • incur any indebtedness for borrowed money or guarantee any such indebtedness of another person (except for short-term borrowings incurred in the ordinary course of business); • issue or sell any debt securities or warrants or other rights to acquire any debt securities of AveXis or any of its subsidiaries; • guarantee any debt securities of another person, enter into any material Contract that if entered "keep well" or other agreement to maintain any financial statement condition of another person or enter into prior to any arrangement having the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) economic effect of any of the foregoing; • make any loans, advances or capital contributions to, or investments in, any other person; • other than (A) Contracts of the type described as reflected in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into a budget disclosed in the Ordinary Course confidential disclosure letter, make or agree to make any capital expenditure or expenditures that in the aggregate are in excess of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, a specified threshold; • except as required by concurrent changes law or as otherwise is in Applicable Law the ordinary course of business, make, rescind or GAAP as agreed to by its independent public accountants; or (v) to the extent change any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of material tax election or settle or compromise any Non-Income Tax material tax liability with respect to the Assetsor refund, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election material change to any accounting method or adopt accounting period used for tax purposes that has a material effect on taxes, file any new Non-Income Tax method material amended tax return of accounting AveXis or any AveXis subsidiary or enter into any closing agreement with respect any governmental entity regarding any material tax liability or assessment, or settle, compromise or consent to the Assets; (C) any material tax claim or assessment or surrender any right to claim a refund material tax refund; • enter into, terminate or modify or amend in a manner that is materially adverse to AveXis, or waive or release any material rights under any material contract or contract that, if existing on the date of Non-Income Taxes with respect the Merger Agreement, would have been a material contract; • settle, or offer or propose to settle, any legal proceeding involving AveXis or any of its subsidiaries that is material to AveXis and its subsidiaries, taken as a whole; or • authorize, commit or agree to take any of the foregoing actions. Except as otherwise expressly permitted by certain sections of the Merger Agreement, each of AveXis and Parent has agreed that it will not, and will not permit any of its respective subsidiaries to, take any action that would, or would reasonably be expected to, result in any of the conditions to the Assets; or (D) consent to any extension or waiver Offer set forth in "Section 14—Conditions of the limitation period applicable to Offer" or any Non-Income Tax claim or assessment with respect of the conditions to the AssetsMerger set forth in "Section 13—The Merger Agreement; Other Agreements" not being satisfied.

Operating Covenants. From (a) Unless the Execution Date until the Closing or, if earlier, the termination of this Agreement as contemplated hereby, except (t) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as Purchaser otherwise consented to consents in writing by Buyer (which such consent shall not to be unreasonably withheld, conditioned or delayed):), during the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents or as set forth on Schedule 5.2, the Sponsor and the SPAC will (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the Sponsor or the SPAC and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors, officers and consultants. (ab) Sellers willWithout limiting the generality of Section 6.2(a), unless the Purchaser otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents as set forth on Schedule 5.2, the Sponsor will not cause nor permit the SPAC to: (i) subject to amend, waive or otherwise change, in any Bankruptcy Court order to the contraryrespect, operate the Assets in the Ordinary Course of Businessits Organizational Documents except as required by applicable Law; (ii) maintain authorize for issuance, issue, grant, sell, pledge, dispose of or cause propose to issue, grant, sell, pledge or dispose of any of its Affiliates equity securities or any options, warrants, commitments, subscriptions or rights of any kind to maintain acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, other than the books issuance of account and records relating to the Assets in the usual, regular and ordinary manner, SPAC securities issuable upon conversion or exchange of outstanding SPAC securities in accordance with its usual accounting practicestheir terms, or engage in any hedging transaction with a third Person with respect to such securities; (iii) give written notice split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to Buyer as soon as is practicable acquire any of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledgeits securities; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; andincur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise); (v) make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return, or make any material change in its Tax methods, in each case except as required by applicable Law or in compliance with GAAP; (vi) amend, waive, terminate or otherwise change the Trust Agreement in any manner adverse to the Sponsor or the SPAC; (vii) make or allow to be made any reduction in the Trust Account, other than as expressly permitted by its Organizational Documents; (viii) terminate, waive or assign any material right under any Covered Contract or enter into any Covered Contract; (ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice; (x) fail to use commercially reasonable efforts to maintain keep in force insurance policies or cause replacement or revised policies providing insurance coverage with respect to its Affiliates assets, operations and activities in such amount and scope of coverage substantially similar to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures that which is currently in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assetseffect; (iixi) enter into waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby); (xii) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability partnership, other business organization or any division thereof, or any material Contract amount of assets outside the ordinary course of business; (xiii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization; (xiv) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) not in the ordinary course of business; (xv) amend, waive or otherwise change, in any respect, the Letter Agreement (except as contemplated by this Agreement); (xvi) take any action that if entered into prior would reasonably be expected to significantly delay or impair the Execution Date would be required obtaining of any Consents of any Governmental Authority to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into obtained in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountantsthis Agreement; or (vxvii) authorize or agree to the extent do any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assetsforegoing actions.

Operating Covenants. From The HP Merger Agreement provides that, from the Execution Date date of the HP Merger Agreement until the Closing or, if earlier, earlier of the termination of this the HP Merger Agreement as contemplated herebyor the Effective Time, except as (ti) as required contemplated by this Agreement or any other Transaction Documentthe HP Merger Agreement, (uii) as required set forth in the confidential disclosure schedules provided by any lease, Contract3PAR, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (viii) as required by any Applicable Law or any Governmental Authority (including by order or directive with the prior written consent of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer HP (which consent shall may not be unreasonably withheld, conditioned or delayed): ), 3PAR would, and would cause each of its subsidiaries to, (a) Sellers will: (i) subject to any Bankruptcy Court order to the contrary, operate the Assets in the Ordinary Course of Business; (ii) maintain or cause carry on its Affiliates to maintain the books of account business and records relating to the Assets conduct its operations in the usual, regular and ordinary manner, course in accordance with its usual accounting practices; (iii) give written notice to Buyer substantially the same manner as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts previously conducted and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: use its commercially reasonable efforts, consistent with past practices and policies, to (iI) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in keep available the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts services of the type described in Section 3.05(a)(iii) current officers, key employees and Section 3.05(a)(viii) entered into in the Ordinary Course consultants of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer 3PAR and each of the terms of any such Contract prior to the execution thereof)its subsidiaries, (BII) confidentiality agreements entered into in accordance preserve the current relationships of 3PAR and each of its subsidiaries with the Bid Procedures Ordercustomers, suppliers and other persons or entities with whom 3PAR or any of its subsidiaries has significant business relations, (CIII) contracts or agreements entered into maintain all of its material operating assets in connection with the Bankruptcy Cases their current condition (including any in connection with an Alternative Transactionnormal wear and tear excepted) and (DIV) Contracts that would not adversely affect maintain and preserve its business organization and its material rights and franchises. Between the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation date of the Assets as presently conducted; HP Merger Agreement and continuing until the earlier of the termination of the HP Merger Agreement or the Effective Time, 3PAR would be subject to customary operating covenants and restrictions (ivsubject to certain exceptions specified in the HP Merger Agreement) change including that 3PAR would not: • amend its certificate of incorporation or bylaws or comparable organizational documents or create any new subsidiaries; • issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the methods issuance or granting of accounting options, warrants, commitments, subscriptions, rights to purchase or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (votherwise) to the extent any of the following would reasonably have the effect 3PAR's or its subsidiaries' capital stock or other equity interests, with certain exceptions; • directly or indirectly acquire, repurchase or redeem any of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date3PAR's or its subsidiaries' capital stock or other equity interests, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assetscertain exceptions; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.•

Operating Covenants. From The Merger Agreement provides that, from the Execution Date date of the Merger Agreement until the Closing or, if earlier, earlier of the termination of this the Merger Agreement or the Appointment Time, except as contemplated herebyby the Merger Agreement, except (t) as required set forth in the confidential disclosure schedules provided by this Agreement or any other Transaction Document, (u) as required by any lease, ContractArcSight, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required approved in advance by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to HP in writing by Buyer (which consent shall approval may not be unreasonably withheld, conditioned or delayed): (a) Sellers will: ), ArcSight and each of its subsidiaries will (i) subject to any Bankruptcy Court order to the contrary, operate the Assets carry on its business in all material respects in the Ordinary Course of Business; ordinary course in substantially the same manner as previously conducted and in compliance with all applicable laws and regulations, (ii) maintain pay its debts and taxes when due, subject to good faith disputes over such debts or cause its Affiliates to maintain the books of account and records relating to the Assets in the usualtaxes, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any pay or perform all material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; obligations when due and (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts efforts, consistent with past practices and policies, to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materialspreserve intact its business organization, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions keep available the services of Excluded Assets; its officers and employees, (iiC) enter into any preserve its relationships with customers, suppliers, distributors, licensors, licensees and others with which it has significant business dealings, and (D) preserve and maintain in full force and effect all material Contract that if entered into prior to registered intellectual property rights of ArcSight and its subsidiaries, and timely effect certain payments and filings in connection therewith. Between the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts date of the type described in Section 3.05(a)(iii) Merger Agreement and Section 3.05(a)(viii) entered into continuing until the earlier of the termination of the Merger Agreement or the Appointment Time, ArcSight is subject to customary operating covenants and restrictions, except as contemplated by the Merger Agreement, set forth in the Ordinary Course confidential disclosure schedules provided by ArcSight, or approved in advance by HP in writing (which approval may not be unreasonably withheld, conditioned or delayed), including that ArcSight will not, or permit any of Business its subsidiaries to: • declare, set aside or pay any dividends on, or make any other distributions (provided that Sellers shall use commercially reasonable efforts whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for dividends by a wholly owned subsidiary of ArcSight to notify Buyer its parent; • purchase, redeem or otherwise acquire shares of its capital stock or other equity interests or any options, warrants, or rights to acquire any such shares or other equity interests; • split, combine, reclassify or otherwise amend the terms of any of its capital stock or other equity interests; • issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stock or other equity interests, any securities convertible into, or exchangeable for, or any rights, warrants or options to acquire, any such Contract prior shares or other equity interests, or any rights linked to the execution value of such shares, with certain exceptions; • amend its certificate of incorporation or by-laws (or similar organizational documents); • directly or indirectly acquire or agree to acquire (i) any corporation, partnership, association or other business organization or division thereof), with certain exceptions for transactions among ArcSight and its wholly owned subsidiaries or (Bii) confidentiality agreements entered into any assets that are otherwise material to ArcSight and its subsidiaries, other than in accordance the ordinary course of business consistent with past practice; • directly or indirectly sell, lease, license, sell and leaseback, abandon, or otherwise dispose of, in whole or in part, any of its material properties, assets or rights or any interest therein, except (i) sales of company products and non-exclusive intellectual property licenses in the Bid Procedures Orderordinary course of business, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (Dii) Contracts that would not adversely affect the Assets disposition of equipment and property no longer used in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of business; • directly or indirectly mortgage or otherwise subject to any lien in whole or in part any of its material properties, assets or rights or any interest therein; • adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; • incur, create, assume or otherwise become liable for, any indebtedness for borrowed money, any obligations under conditional or installment sale contracts or other retention contracts relating to purchased property, any capital lease obligations or any guarantee or any such indebtedness of any other person, issue or sell any debt securities, options, warrants, calls or other rights to acquire any debt securities, guarantee any debt securities of any other person, enter into any agreement to maintain any financial statement condition of any other person, enter into any arrangement having the Assets as presently conducted; (iv) change the methods economic effect of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have foregoing except accounts payable to trade creditors, or amend, modify or refinance any of the effect foregoing; • except for advances to employees for travel and business expenses in the ordinary course of increasing the Non-Income Tax liability of Buyer for any period after the Closing Datebusiness, (A) make any settlement loans, advances or capital contributions to, or investments in, any other person, other than ArcSight or any of its wholly owned subsidiaries; • incur or compromise commit to incur any Non-Income Tax liability capital expenditure or authorization or commitment with respect to thereto in excess of $250,000, in the Assetsaggregate, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to except those provided for in the Assetscapital expenditure budget set forth in the confidential disclosure schedule provided by ArcSight; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.•

Operating Covenants. From During the Execution Date period from the date hereof until the Closing orearlier of the Termination Date and the date on which ▇▇▇▇▇▇▇ acquires the Insurer pursuant to Section 5.6(a), if earlier, the termination of this Agreement as contemplated herebyapplicable, except (t) as otherwise expressly permitted or required by this Agreement or any other Transaction DocumentAgreement, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable applicable Law or any Governmental Authority (including by order requested or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer ▇▇▇▇▇▇▇ (which such consent shall not to be unreasonably withheld, conditioned or delayed): (a) Sellers will: (i) subject ▇▇▇▇▇▇ shall cause the Insurer to any Bankruptcy Court order to the contrary, operate the Assets conduct its business in the Ordinary Course of Business; (ii) maintain or cause its Affiliates ordinary course consistent with past practice and to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in Insurer’s goodwill and relationships with the amounts Insurer’s policyholders, regulators and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conductedrating agencies; and (b) no Seller shall▇▇▇▇▇▇ shall cause Evanston to not provide any consent or waive any rights under, or otherwise take or fail to take any discretionary action under, the Evanston Reinsurance Agreement without the prior written consent of ▇▇▇▇▇▇▇ Re; and (c) ▇▇▇▇▇▇ shall cause the Insurer to not do any of the following: (i) amend, modify or change the organizational documents of the Insurer in any material respect; (ii) issue or authorize for issuance any shares of capital stock or other equity or voting interests of the Insurer, or grant options, warrants, calls or other rights to purchase, acquire or subscribe to, or redeem, repurchase or otherwise acquire any shares of capital stock or other equity or voting interests of the Insurer, except that ▇▇▇▇▇▇ may cause additional shares of capital stock of the Insurer to be issued to ▇▇▇▇▇▇ or its Affiliates; (iii) (A) merge or consolidate with any other Person, (B) acquire (by merger, consolidation, acquisition of stock or assets, bulk reinsurance or otherwise) any Person or assets or liabilities comprising a business or a segment, division or line of business or any material amount of property or assets in or of any Person, (C) sell all or substantially all of the Insurer’s assets, (D) create or acquire any Subsidiaries or (E) enter into any partnership or joint venture; (iv) take or authorize any action to wind up the affairs of the Insurer or dissolve, liquidate, rehabilitate or otherwise restructure the Insurer; (v) file or authorize a voluntary case concerning the Insurer under any applicable bankruptcy, insolvency, moratorium, rehabilitation, liquidation or similar Laws, or make a general assignment for the benefit of creditors or otherwise enter into a general arrangement for the restructuring of its liabilities with creditors, or consent to the appointment of a custodian under any applicable bankruptcy, insolvency, moratorium, rehabilitation, liquidation or similar Laws for all or any substantial part of the Insurer’s property or assets; (vi) enter into any agreement or transaction with ▇▇▇▇▇▇ or its Affiliates that is not terminable without penalty upon any acquisition of all of the issued and outstanding capital stock of the Insurer by ▇▇▇▇▇▇▇; (vii) (A) incur any Indebtedness, other than trade accounts payable and short-term working capital financing, in each case, incurred in the ordinary course of business consistent with past practice, (B) make any loans, advances or capital contributions to, or investments in, any other Person, other than investments made in the ordinary course of business in accordance with its investment policies or as may be required by applicable Law or (C) assume, grant, guarantee or endorse, pledge or otherwise secure any assets or property or otherwise as an accommodation become responsible for (whether primary or secondary), the obligations of any Person; (viii) enter into any agreement, contract, understanding or similar arrangement (other than Insurance Policies and third-party catastrophe, excess of loss or facultative reinsurance or retrocessional treaties or agreements entered into in accordance with the terms of this Agreement) with any Person other than ▇▇▇▇▇▇, HGTY or their respective Affiliates; (ix) adopt, establish, contribute to or otherwise incur any liability with respect to any employee benefit plan, program, policy or arrangement; (x) hire or retain the services of any employee or independent contractor (other than independent contractors retained in the ordinary course of business in connection with the administration of its business); (xi) forfeit, abandon, modify or otherwise change, waive, terminate, fail to renew or maintain or let lapse any Insurer Permit, except as may be required in order to comply with applicable Law or this Agreement; (xii) fail to submit any material reports, statements, documents, registrations, filings or submissions required to be filed by the Insurer with any Governmental Authority or otherwise fail to materially comply with any applicable Law; (xiii) issue or assume any Insurance Policies other than Insurance Policies produced by Affiliates of ▇▇▇▇▇▇▇ in connection with the Alliance Business, or otherwise engage in any business other than the Alliance Business; (xiv) (i) enter into any new line of business, or introduce any new products or services, except as may be required by applicable Law, or (ii) change in any material respect existing products or services, except as may be required by applicable Law; (i) fail to pay any Tax when due, fail to timely file all Tax Returns required to be filed, fail to withhold or collect for payment all Taxes required to be so withheld or collected, fail to remit any Taxes so withheld and collected, and (ii) on any Tax Return, take any position, make any election, or adopt any method which would have the effect of deferring income to periods (or portions thereof) after the Termination Date or accelerating deductions to periods (or portions thereof) on or prior to the Termination Date; (xvi) enter into any reinsurance or retrocessional treaty or agreement, other than in accordance with the terms of this Agreement; (xvii) enter into any agreement, contract, understanding or similar arrangement with (A) any officer, director or employee of the Insurer or any of its Affiliates, or (B) any spouse, ancestor or descendant (whether natural or adopted) of any officer, director or employee of the Insurer or any of its Affiliates; or (xviii) agree or commit to do any of the foregoing; and (d) ▇▇▇▇▇▇ shall not, and shall cause its Affiliates not to: (i) sell, lease transfer, assign, pledge, mortgage, hypothecate or otherwise transfer dispose of or encumber (whether with or without consideration and whether voluntarily or involuntarily or by operation of law) any Asset, interest of ▇▇▇▇▇▇ or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures its Affiliates in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded AssetsInsurer; (ii) enter into permit MSI to terminate the Claims Services and Management Agreement or replace or reduce the duties and responsibilities of ▇▇▇▇▇▇▇ Agency thereunder or permit the delegation of any material Contract that if entered into prior administrative function with respect to the Execution Date would be required Evanston Reinsured Policies to be listed in Disclosure Schedule 3.05(a) any person, other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect;▇▇▇▇▇▇▇ Agency; or (iii) amend or modify in take any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability action with respect to the AssetsInsurer on an affiliated, consolidated, combined or unitary group Tax Return of which the Insurer is a part that would, if taken by the Insurer directly, constitute a violation of clause (Bxv) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the AssetsSection 5.1(c).

Operating Covenants. From The Merger Agreement provides that, during the Execution Date period from the date of the Merger Agreement until the Closing or, if earlier, earlier of the Acceptance Time and the termination of this the Merger Agreement as contemplated herebypursuant to its terms (the "Pre-Closing Period"), except (ti) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive with the written consent of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer Adobe (which consent shall will not be unreasonably withheld, conditioned or delayed): (a) Sellers will: (i) subject to any Bankruptcy Court order to the contrary), operate the Assets in the Ordinary Course of Business; (ii) maintain as expressly permitted or cause its Affiliates to maintain the books of account and records relating required pursuant to the Assets in the usualMerger Agreement or as required by applicable law or regulation, regular and ordinary manner, in accordance with its usual accounting practices; or (iii) give written notice as agreed to Buyer as soon as is practicable and set forth in a schedule to the Merger Agreement, the businesses of any material damage or casualty TubeMogul and each of its subsidiaries shall, subject to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets restrictions and exceptions set forth in the amounts Merger Agreement, be conducted in the ordinary and types described on Disclosure Schedule 3.10; and (v) usual course of business and consistent with past practices, and TubeMogul and each of its subsidiaries shall use their respective commercially reasonable efforts to maintain and preserve intact their respective business organizations and to preserve their respective relations and good will with all persons having business dealings with TubeMogul or cause any of its Affiliates subsidiaries. The Merger Agreement also provides that except for matters expressly permitted or contemplated by the Merger Agreement or as required by applicable law or regulation, TubeMogul will not, nor will it permit any of its subsidiaries to, do any of the following without the prior written consent of Adobe: • acquire, sell, lease, license, transfer or dispose of any assets, rights or securities that are material to maintain all Permits TubeMogul and its subsidiaries, considered as a single enterprise (including Environmental Permitsany material intellectual property rights that are owned or purported to be owned by, filed in the name of, or exclusively licensed to TubeMogul or any of its subsidiaries) required for (except, in the operation case of any of the Assets as presently conducted; and foregoing (b1) in the ordinary course of business consistent with past practice (including entering into non-exclusive license agreements, "SaaS" licenses, end user license agreements and non-disclosure agreements in the ordinary course of business), (2) pursuant to dispositions of obsolete, surplus or worn out assets that are no Seller shall: longer useful in the conduct of the business of TubeMogul and its subsidiaries and (i3) sellsolely with respect to acquisitions by TubeMogul or any of its subsidiaries of, lease leases or otherwise transfer licenses granted to TubeMogul or any Assetof its subsidiaries to, or otherwise voluntarily divest transfers to TubeMogul or relinquish any right of its subsidiaries of any assets, rights or assetsecurities, as provided for in TubeMogul's capital expense budget made available to Adobe or when added to all other than (A) sales or other dispositions capital expenditures made on behalf of materialsTubeMogul and its subsidiaries since the date of the Merger Agreement but not provided for in TubeMogul's capital expense budget made available to Adobe, supplies, machinery, equipment, improvements or other personal property or fixtures does not exceed $200,000 individually and $600,000 in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into aggregate during any fiscal quarter); • accelerate, terminate or cancel, or waive, release or assign any material term of, or right, obligation or claim under, any Company Material Contract (as defined in the Merger Agreement), or amend or modify any Company Material Contract in a manner that is material and adverse to TubeMogul or any of its subsidiaries, or enter into, extend or renew any contract which, if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts date of the type described in Section 3.05(a)(iii) Merger Agreement would have been a Company Material Contract, excluding any non-exclusive license agreements and Section 3.05(a)(viii) non-disclosure agreements entered into in the Ordinary Course ordinary course of Business business; • acquire by merging or consolidating with or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by license or any other manner, any business, corporation, partnership, association or other business organization or division thereof; • amend TubeMogul's certificate of incorporation or bylaws or, in the case of any of TubeMogul's subsidiaries, their respective constituent documents; • establish a record date for, declare, set aside or pay any dividend or other distribution payable in cash, capital stock, property or otherwise with respect to any shares of its capital stock (provided that Sellers shall use commercially reasonable efforts including the Shares), except for dividends or other distributions by a direct or indirect wholly owned subsidiary of TubeMogul to notify Buyer its parent; • repurchase, redeem or otherwise reacquire any shares of its capital stock, other equity securities, other ownership interests or any options, warrants or rights to acquire any such stock, securities or interests, other than in connection with (x) repurchase or reacquisitions of Shares pursuant to TubeMogul's right (under written commitments in effect as of the date of the Merger Agreement) to repurchase or reacquire Shares held by each officer or other employee, or individual who is an independent contractor, consultant or director, of or to TubeMogul or any of its subsidiaries (a "Company Associate") only upon termination of such associate's employment or engagement by TubeMogul, (y) the relinquishment of shares by Company Associates in payment of withholding tax upon the vesting of restricted stock units or (z) the cashless or net exercise of stock options, in each case of clauses "(x)", "(y)" and "(z)", pursuant to the terms of such awards in effect on the date of the Merger Agreement; • split, combine or reclassify any such Contract outstanding shares of its capital stock; • issue, sell, dispose of or authorize, propose or agree to the issuance, sale or disposition by TubeMogul or any of its subsidiaries of, any shares of, or any options, warrants or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable for any shares of, its capital stock of any class, or any other securities in respect of, in lieu of, or in substitution for any class of its capital stock outstanding on the date of the Merger Agreement, except (w) pursuant to contracts in effect as of the date of the Merger Agreement, (x) for the Shares issuable upon exercise or conversion of stock options outstanding on the date of the Merger Agreement, (y) for the vesting of restricted stock units granted prior to the execution thereofof the Merger Agreement and (z) pursuant to the operation of the ESPP in accordance with the Merger Agreement; • incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, except for indebtedness incurred or guaranteed in the ordinary course of business; • make any loans or advances, except (A) to or for the benefit of TubeMogul's subsidiaries or (B) for those not in excess of $250,000 in the aggregate; • except in the ordinary course of business consistent with past practice with respect to employees below the level of vice-president or to the extent required in a Company Employee Benefit Plan (as defined in the Merger Agreement) in existence as of the date of the Merger Agreement: (A) grant or increase any severance or termination pay to any Company Associate (it being understood that the hiring of a new employee who is not an executive officer and who is subject to the existing severance and termination policies of TubeMogul pursuant to a Company Employee Benefit Plan, or the payment of severance to an employee in accordance with the existing severance policies of TubeMogul pursuant to a Company Employee Benefit Plan that are provided in writing to the Adobe, shall not constitute the grant or increase in any severance or termination pay), (B) confidentiality agreements entered into execute any Company Employee Agreement (as defined in accordance with the Bid Procedures OrderMerger Agreement), (C) contracts or agreements entered into in connection with increase the Bankruptcy Cases (including benefits payable under any in connection with an Alternative Transaction) and existing Company Employee Agreement, (D) Contracts increase the compensation, bonus or other benefits of current or former directors or executive officers of TubeMogul or any of its subsidiaries, or, other than in the ordinary course of business, of employees of TubeMogul or any of its subsidiaries, (E) adopt or establish any new employee benefit plan that would not adversely affect be a Company Employee Benefit Plan if it were in existence on the Assets in any material respect; (iii) date of the Merger Agreement, or amend or modify in any material respect any existing Company Employee Benefit Plan, (F) take any action that would result in its incurring any obligation for any payments or benefits that would result in any material payment (including severance, unemployment compensation, bonus or otherwise) becoming due to any current or former director, officer, individual consultant or employee of TubeMogul under any Company Employee Benefit Plan or otherwise, that would result in an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Code, or that would materially increase any benefits otherwise payable under any Company Employee Benefit Plan (without regard to whether the transactions contemplated by the Merger Agreement are consummated) or (G) hire or terminate any Purchased Contract the employment (other than termination or expiration in accordance with its termsfor cause) or of any Permits (including Environmental Permits) required for employee at the operation level of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountantsvice-president and above; or (v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.•

Operating Covenants. From Valley hereby covenants and agrees that, from the Execution Date until date of this Agreement through the Closing or, if earlier, Date or the earlier termination of this Agreement as contemplated herebyAgreement, Valley, except (t) as required by this Agreement or with the prior written consent of Marquette, any other Transaction Documentrequest for which Marquette shall promptly review and respond to, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned and shall not cause or delayed):allow the Bank to: (a) Sellers will:Declare or pay any dividends or distributions with respect to any shares of their capital stock; (b) Borrow any amount or incur or become subject to any material liability, except liabilities incurred in the ordinary course of business, but in no event shall enter into any long-term borrowings or obligations, other than deposit obligations; (c) Discharge or satisfy any material lien or encumbrance on the properties or assets of any member of the Bank Group or pay any material liability, other than in the ordinary course of business, unless the member of the Bank Group is under a legal obligation to make any such payment; (d) Sell, assign or transfer any tangible assets, except for the sale of collateral and other assets in the ordinary course of business; (e) Amend their Articles of Association or Incorporation or Bylaws; (f) Cancel any material debt or claim or waive any right of material value, except renewals of loans and debt restructurings and other transactions in the ordinary course of the Bank's business and consistent with safe and sound banking practices; (g) Repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution where the loan is in default or has been classified; (h) Originate any loan which is thereafter participated to another financial institution providing for payment upon default on any basis other than pro rata; (i) subject Make or commit to make any Bankruptcy Court order further advances on any loan which is either in default or classified, whether such classification is a result of a federal bank regulatory examination or internal classification by Bank's officers or directors, unless the Bank is under a legal obligation to the contrary, operate the Assets in the Ordinary Course of Businessdo so; (iij) maintain Release or cause agree to release any collateral securing any loan, except where the collateral released is replaced by collateral with an equal or greater value, where the collateral is immaterial in value or where the Bank is under a legal obligation to release the collateral; (k) Make, renew or agree to make, or renew any loan or advance on any existing loan, to any one borrower if the aggregate outstanding loans and commitments to that borrower will exceed $200,000 in the aggregate, unless the Bank is under a legal obligation to do so; or make, renew or agree to make or renew any loan or advance on any existing loan, except in conformity with the Bank's current loan policies and safe and sound banking practices; (l) Pay or incur any obligation or liability with respect to capital expenditures which exceed $25,000 in the aggregate; (m) Fail to timely pay and discharge all federal and state taxes and other accounts payable for which it is liable; (n) Pay or commit to pay any increase in salary or other compensation to any officer, director or employee, other than those certain Stay Bonus Agreements by and between the Bank and each of Michael Day, Daniel Govin▇▇▇, ▇▇▇▇▇ Hyde and Gr▇▇▇▇▇ ▇▇▇▇; (▇) ▇ake o▇ ▇▇▇▇▇ ▇▇▇ increase in any Employee Plan or arrangement, amend or terminate any existing Employee Plan or arrangement, or adopt any new Employee Plan or arrangement, except as required by law or by this Agreement; (p) Purchase or agree to purchase any investment securities, other than U.S. Treasury securities with a maturity not to exceed five years, or sell or agree to sell any investment securities prior to maturity; (q) Incur or permit to be entered against a member of the Bank Group any default judgment, or permit any unsatisfied judgment to remain unsatisfied unless that judgment is being appealed; (r) Fail to conduct its Affiliates to maintain the books of account business in, and records relating to the Assets in only in, the usual, regular and ordinary manner, course in accordance with its usual accounting practices; (iii) give written notice to Buyer substantially the same manner as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts heretofore conducted and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) terms and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation conditions of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountantsthis Agreement; or (vs) Sell any stock, except stock of Valley pursuant to the extent any lawful exercise of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect Stock Options pursuant to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assetstheir terms.

Operating Covenants. From the Execution Effective Date until through the Closing or, if earlier, (or the early termination of this Agreement Agreement), Operator LP agrees as contemplated hereby, except (t) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) follows with respect to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):each Location: (a) Sellers will: Operator LP will cause YSI LP or the applicable Affiliate Owner to refrain from (i) subject to performing any Bankruptcy Court order to construction, or removal of any Improvements, or making any other change or improvement upon or about the contraryProperty, operate the Assets except for activities properly undertaken by YSI LP, Affiliate Owners or Property Manager in the Ordinary Course normal course of Business; maintaining and operating the Locations; (ii) maintain creating or cause its Affiliates suffering to maintain exist, any mortgage, lien, pledge, or other encumbrances in any way affecting the books Property other than the Permitted Exceptions and Monetary Liens to be released or satisfied at the expense of account Operator LP at or prior to Closing; and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of committing any material damage waste or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledgenuisance upon the Property; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; and (b) no Seller shall: Operator LP will cause YSI LP or the applicable Affiliate Owner to: (i) sellmaintain and keep the Property in good condition in accordance with the custom and practice as such exists as of the Effective Date; (ii) observe all laws, ordinances, regulations, and restrictions affecting the Property and its use; and (ii) repair any portion of the Property damaged as a result of the activities of YSI LP or the applicable Affiliate Owner or other parties between the Effective Date and Closing; (c) YSI LP or the applicable Affiliate Owner shall continue to operate the Property in the usual and customary manner and shall not: (i) enter into any lease or otherwise transfer occupancy agreement for all or any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions portion of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course Property outside of Business which have been replaced with an item the ordinary course of substantially equal suitability the usual and (B) dispositions customary business practices of Excluded Assets; YSI LP and Affiliate Owners as such exist as of the Effective Date; and (ii) enter into any material operating agreement, Service Contract or other obligation that if entered into will be binding upon the Company after Closing without the prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) written consent of Investor, other than (A) Contracts such agreements as may be terminable upon 30 days notice and which are within the ordinary course of the type described in Section 3.05(a)(iii) usual and Section 3.05(a)(viii) entered into in the Ordinary Course customary business practices of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer YSI LP and Affiliate Owners as such exist as of the terms of any such Contract prior to the execution thereof)Effective Date; (d) Operator LP shall pay all federal, (B) confidentiality agreements entered into in accordance with the Bid Procedures Orderstate, (C) contracts and local, sales or agreements entered into use taxes or similar taxes imposed upon, relating to, or payable in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have Locations; and (e) Operator LP shall keep and maintain hazard and liability insurance on the effect of increasing Property for the Non-Income Tax liability of Buyer for any period after full insurable value thereof until Closing in the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver ordinary course of the limitation period applicable usual and customary business practices of YSI LP and Affiliate Owners as such exist as of the Effective Date and upon Investor LP’s request shall provide evidence thereof to any Non-Income Tax claim or assessment with respect to the AssetsInvestor LP.

Operating Covenants. From During the Execution Date until the Closing or, if earlier, the termination of this Agreement as contemplated herebyInterim Period, except (t) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive with the prior written consent of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer Purchaser (which consent shall will not be unreasonably withheld, conditioned conditioned, or delayed):) or as required by this Agreement, the Business shall be conducted only in the Ordinary Course, provided that the Company and its Subsidiaries shall be permitted during the Interim Period to take all reasonably appropriate actions to apply available Cash and Cash Equivalents to pay Indebtedness. In addition, the Company and its Subsidiaries shall: (a) Sellers will: use reasonable best efforts, consistent with past practices, to (i) subject to any Bankruptcy Court order to preserve substantially intact the contraryBusiness and its operations and organization, operate (ii) maintain the Assets Working Capital of the Company and its Subsidiaries in the Ordinary Course Course, (iii) retain the services of its current employees, and (iv) preserve the goodwill of its present relationship with Persons having material business dealings with the Company and its Subsidiaries; (b) use reasonable best efforts, consistent with past practices, to maintain (i) all material Assets of the Company and its Subsidiaries in their current condition, ordinary wear and tear, casualty and condemnation excepted, and (ii) insurance upon all of the Assets of the Company and its Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (c) maintain the books, accounts, and Records of the Company and its Subsidiaries in the Ordinary Course; (d) timely pay Taxes of the Company and its Subsidiaries; (e) comply in all material respects with all Legal Requirements applicable to the Company and its Subsidiaries, and keep in force all Permits necessary to the operation of the Business; (f) keep in force all Educational Approvals necessary to the operation of each School and its educational programs except for (i) changes to Educational Approvals made in the Ordinary Course; and (ii) maintain or cause its Affiliates changes to Educational Approvals for individual educational programs for which a failure to maintain the books of account and records relating Educational Approvals would not reasonably be expected to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10cause a Material Program Event; and (vg) use commercially reasonable efforts take such actions as are reasonably necessary to maintain or cause its Affiliates to maintain all Permits (including Environmental Permits) required for the operation smooth, efficient, and successful transition of the Assets as presently conducted; and (b) no Seller shall: (i) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts Purchaser as of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of the terms of any such Contract prior to the execution thereof), (B) confidentiality agreements entered into in accordance with the Bid Procedures Order, (C) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the AssetsClosing.

Operating Covenants. From The Merger Agreement provides that, during the Execution Date period from the date of the Merger Agreement until the Closing or, if earlier, earlier of the Acceptance Time and the termination of this the Merger Agreement as contemplated herebypursuant to its terms (the “Pre-Closing Period”), except (ti) as required by this Agreement or any other Transaction Document, (u) as required by any lease, Contract, or instrument listed on any Annex, Disclosure Schedule or Schedule, as applicable, (v) as required by any Applicable Law or any Governmental Authority (including by order or directive with the written consent of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer Lilly (which consent shall will not be unreasonably withheld, conditioned or delayed): (a) Sellers will: (i) subject to any Bankruptcy Court order to the contrary), operate the Assets in the Ordinary Course of Business; (ii) maintain as expressly permitted or cause its Affiliates to maintain the books of account and records relating required pursuant to the Assets in the usualMerger Agreement, regular and ordinary manner, in accordance with its usual accounting practices; or (iii) give written notice to Buyer as soon as is practicable required by any applicable law or judgment or by the terms of any material damage contract or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage employee benefit plan in effect on the Assets date of the Merger Agreement, the businesses of CoLucid shall be conducted in the amounts ordinary course of business and types described on Disclosure Schedule 3.10; and (v) consistent with past practices, and CoLucid shall use its commercially reasonable efforts to maintain or cause and preserve intact its Affiliates business organization, to preserve its relations and good will with all persons having business dealings with CoLucid, to retain the services of CoLucid’s business associates, agents, current officers and key employees, to prosecute and maintain all Permits (including Environmental Permits) required for intellectual property in the operation usual course of business and, to comply with applicable laws and the Assets as presently conducted; and (b) no Seller shall: requirements of its contracts. The Merger Agreement also provides that during the Pre-Closing Period, except (i) sellwith the written consent of Lilly (which consent will not be unreasonably withheld, lease conditioned or otherwise transfer any Assetdelayed), or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior as expressly permitted or required pursuant to the Execution Date would be Merger Agreement, or (iii) as required to be listed in Disclosure Schedule 3.05(a) other than (A) Contracts of the type described in Section 3.05(a)(iii) and Section 3.05(a)(viii) entered into in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts to notify Buyer of by any applicable law or judgment or by the terms of any such Contract contract or employee benefit plan in effect on the date of the Merger Agreement, CoLucid will not do any of the following without the prior written consent of Lilly: • form any subsidiary or, other than in the ordinary course of business, acquire any assets, securities, properties, rights, interests in any business; • sell, lease, sublease, license, sublicense, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire, transfer or dispose of, or create or incur any lien on, any of CoLucid’s assets, regulatory authorizations, securities, properties, rights, interests or businesses; • amend CoLucid’s certificate of incorporation or bylaws; • declare, set aside, set a record date for, or pay any dividend or other distribution payable in cash, capital stock, property or otherwise (or any combination thereof) with respect to any of CoLucid’s securities or enter into any agreement with respect to the execution thereofvoting of CoLucid’s securities; Table of Contents • purchase, redeem or otherwise acquire, or authorize or agree to purchase, redeem or acquire, any of CoLucid’s securities (except, with respect to any of CoLucid’s securities outstanding under any Equity Plan, in the ordinary course of business or as required by the applicable Equity Plan); • split, combine, subdivide or reclassify any of CoLucid’s securities; • issue, sell, grant, dispose of, pledge, deliver, transfer or otherwise encumber or authorize, propose or agree to the issuance, sale, grant, disposition, pledge, delivery, transfer or encumbrance by CoLucid of, any CoLucid security, except (A) for Shares issuable upon the exercise or conversion of options and restricted stock units outstanding on the date of the Merger Agreement or (B) confidentiality agreements entered into for the issuance of Shares pursuant to the ESPP as contemplated in accordance with the Bid Procedures OrderMerger Agreement; • commence any new, or extend any existing, offering or purchase period under the ESPP; • (CA) contracts or agreements entered into in connection with the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend incur, assume, or modify in any material respect or terminate respect, the terms of any Purchased Contract indebtedness for borrowed money (other than termination trade payables) in excess of $250,000 in the aggregate or expiration guarantee, endorse or otherwise become responsible for any such indebtedness or (B) redeem, repurchase, prepay, defease or cancel any indebtedness for borrowed money, other than as required in accordance with its terms) or any Permits (including Environmental Permits) required for the operation terms of the Assets as presently conducted; (iv) change the methods of accounting or accounting practice by Sellers, contract evidencing such indebtedness; • except as required by concurrent changes law or any employee benefit plan as in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to effect on the extent any date of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing DateMerger Agreement, (A) make grant or increase the severance or termination pay to any settlement current or former director, employee, agent or consultant of or compromise any Non-Income Tax liability with respect to the AssetsCoLucid, (B) execute any employment, consultancy, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, employee, agent or consultant of CoLucid, (C) increase the benefits payable beyond the level of any existing severance or termination pay practices or employment agreements, (D) increase the compensation, bonus or other benefits of any current or former director, employee, agent or consultant of CoLucid, (E) adopt, enter into or establish any new employee benefit plan or agreement that would be an employee benefit plan if it were in existence on the date of the Merger Agreement, or amend in any material respect any existing employee benefit plan, (F) provide for the grant of options, restricted stock units or any other equity-based compensation awards, (G) accelerate the payment, right to payment, funding or vesting of any compensation or benefits, (H) lend or advance any money or other property to any present or former director or employee of CoLucid, (I) hire any person for employment with CoLucid, or (J) enter into any collective bargaining agreement or other labor agreement; • make, change or rescind any material tax election, change any Non-Income Tax election annual tax accounting period, adopt or Non-Income Tax change any material method of accounting or make tax accounting, enter into any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting material closing agreement with respect to the Assets; (C) any tax, surrender any right to claim a refund material tax refund, settle or compromise any material tax claim, audit or assessment, or consent to any waiver of Nonthe statute of limitations period applicable to any material tax or material tax return; • agree to or otherwise settle, compromise, release, assign or otherwise resolve in whole or in part any action for an amount of $250,000 or more (excluding any amounts paid or reimbursed by any insurance policy) or any of its obligations or liabilities in excess of such amount and CoLucid shall not settle any action (regardless of the amount involved) if any such settlement would impose any material obligation or restriction on CoLucid from time to time or on CoLucid’s ability to own or operate any of its assets, licenses, operations, rights, product lines, businesses or interests therein or require any material changes to the business of CoLucid from time to time; • engage in any transaction or series of transactions with any Affiliate that would be required to be disclosed under Item 404 of Regulation S-Income Taxes K under the Securities Act of 1933, without regard to any monetary thresholds therein; • make or commit to make capital expenditures other than in accordance with CoLucid’s capital expenditure budget; • make any loans, advances or capital contributions in excess of $250,000 in the aggregate; Table of Contents • enter into any agreement, arrangement or commitment that materially limits or otherwise restricts CoLucid from time to time from engaging or competing in any line of business or in any geographic area or otherwise enter into any agreements, arrangements or commitments imposing material changes or restrictions on its assets, operations or business; • enter into any material lease or sublease of real property (whether as lessor, sublessor, lessee or sublessee) or materially modify, materially amend, terminate or fail to exercise any right to renew CoLucid’s current lease; • materially change its accounting methods, principles or practices, other than as required by GAAP or applicable law or regulation; • take or fail to take any action that would reasonably be expected to result in any of the Offer Conditions not being satisfied or prevent or materially delay or impede the consummation of the Offer, the Merger, and other transactions contemplated by the Merger Agreement, except as permitted under the no solicitation and superior proposal provisions of the Merger Agreement described below; • adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization; • except as provided in CoLucid’s 2017 budget, (A) enter into any agreement that would constitute a Company Material Contract (as defined in the Merger Agreement) if it were in existence on the date hereof, (B) terminate, amend, restate or supplement any Company Material Contract or (C) waive, release or assign any rights or claims under any Company Material Contract; • fail to keep in full force and effect all insurance policies maintained by CoLucid, other than such policies that expire by their terms or changes to such made in the ordinary course of business; • participate in any scheduled meetings or teleconferences with, or correspond in writing, communicate or consult with the FDA or any similar governmental authority without providing Lilly prior written notice and, within 24 hours, the opportunity to consult with CoLucid with respect to such correspondence, communication or consultation; • with respect to Company Intellectual Property (as defined in the Assets; Merger Agreement), (A) sell, assign, license, sublicense, encumber, impair, abandon, fail to diligently maintain, transfer or otherwise dispose of any of CoLucid’s right, title or interest in any Company Intellectual Property, (B) extend, amend, waive, cancel or modify any rights in or to the Company Intellectual Property, (C) fail to diligently prosecute the patent applications owned by CoLucid or (D) consent divulge, furnish to or make accessible any trade secrets within Company Intellectual Property to any extension third party who is not subject to an enforceable written agreement to maintain the confidentiality of such trade secrets; or waiver • authorize, approve, agree, commit or offer to take any of the limitation period applicable to any Non-Income Tax claim or assessment with respect to actions precluded by the Assetsforegoing.

Operating Covenants. From Pursuant to the Execution Date Merger Agreement, from the date of the Merger Agreement until the Closing or, if earlier, earlier of the Offer Acceptance Time and the termination of this the Merger Agreement as contemplated herebypursuant to its terms (the “Pre-Closing Period”), except as (ta) as required or otherwise contemplated under the Merger Agreement, (b) required by this Agreement or any other Transaction Documentapplicable law, (uc) as required by any lease, Contractto be taken, or instrument listed on any Annexomitted to be taken, Disclosure Schedule or Schedule, as applicablepursuant to the COVID-19 Measures, (vd) as required by any Applicable Law or any Governmental Authority (including by order or directive undertaken with the prior written consent of the Bankruptcy Court or fiduciary duty of the board of managers of any Seller or its Affiliates) or any requirements or limitations resulting from the Bankruptcy Cases, (w) to the extent related solely to Excluded Assets and/or Excluded Liabilities, (x) for renewal of expiring insurance coverage in the Ordinary Course of Business, (y) for emergency operations or (z) as otherwise consented to in writing by Buyer Amgen (which consent shall will not be unreasonably withheld, conditioned or delayed): ), or (ae) Sellers will: (i) subject to any Bankruptcy Court order to the contrary, operate the Assets as set forth in the Ordinary Course confidential disclosure letter that Five Prime delivered to Amgen and Purchaser in connection with the execution of Business; (ii) maintain or cause the Merger Agreement, Five Prime will use its Affiliates to maintain the books of account and records relating to the Assets in the usual, regular and ordinary manner, in accordance with its usual accounting practices; (iii) give written notice to Buyer as soon as is practicable of any material damage or casualty to or destruction or condemnation of any Asset of which Sellers have Knowledge; (iv) use reasonable best efforts to maintain insurance coverage on the Assets in the amounts and types described on Disclosure Schedule 3.10; and (v) use commercially reasonable efforts to maintain or cause (x) conduct in all material respects its Affiliates to maintain business and operations in the ordinary course and (y) preserve intact the material components of its current business organization, including by maintaining its relations and goodwill with all Permits material suppliers, material customers, Governmental Bodies and other material business relations. In addition, during the Pre-Closing Period, except as (including Environmental Permitsa) required for or contemplated under the operation of the Assets as presently conducted; and Merger Agreement, (b) no Seller shall: required by applicable laws, (ic) sell, lease or otherwise transfer any Asset, or otherwise voluntarily divest or relinquish any right or asset, other than (A) sales or other dispositions of materials, supplies, machinery, equipment, improvements or other personal property or fixtures in the Ordinary Course of Business which have been replaced with an item of substantially equal suitability and (B) dispositions of Excluded Assets; (ii) enter into any material Contract that if entered into prior to the Execution Date would be required to be listed taken, or omitted to be taken, pursuant to the COVID-19 Table of Contents Measures, (d) undertaken with the prior written consent of Amgen (which consent will not be unreasonably withheld, conditioned or delayed), or (e) as set forth in Disclosure Schedule 3.05(a) other than (A) Contracts the confidential disclosure letter that Five Prime delivered to Amgen and Purchaser in connection with the execution of the type described Merger Agreement, Five Prime will not, subject to certain exceptions: • amend or permit the adoption of any amendment to its certificate of incorporation and bylaws; • establish a record date for, declare, accrue, set aside or pay any dividend or make any other distribution in Section 3.05(a)(iiirespect of any shares of its capital stock (including the Shares); • repurchase, redeem or otherwise reacquire any of its shares of capital stock (including any Shares), or any rights, warrants or options to acquire any shares of its capital stock, other than: (a) and Section 3.05(a)(viiirepurchases or reacquisitions of Shares outstanding as of the date of the Merger Agreement pursuant to Five Prime’s right to purchase or reacquire Shares held by a director, officer, consultant, independent contractor or other employee of Five Prime (a “Five Prime Associate”) entered into upon termination of such individual’s employment or engagement by Five Prime; (b) repurchases of Five Prime’s stock awards (or shares of capital stock issued upon the exercise or vesting thereof) outstanding on the date of the Merger Agreement (in the Ordinary Course of Business (provided that Sellers shall use commercially reasonable efforts cancellation thereof) pursuant to notify Buyer of the terms of any such Contract stock award (in effect as of the date of the Merger Agreement) between Five Prime and a Five Prime Associate only upon termination of such individual’s employment or engagement by Five Prime; or (c) in connection with withholding to satisfy the exercise price or tax obligations with respect to Five Prime’s stock awards; • split, combine, subdivide or reclassify any Shares or other equity interests; • issue, sell, grant, deliver, pledge, transfer, encumber or authorize the issuance, sale, grant delivery, pledge, transfer or encumbrance (other than pursuant to agreements in effect as of the date of the Merger Agreement) of (a) any capital stock, equity interest or other security of Five Prime, (b) any option, call, warrant, restricted securities or right to acquire any capital stock, equity interest or other security of Five Prime, or (c) any instrument convertible into or exchangeable for any capital stock, equity interest or other security of Five Prime, except that (x) Five Prime may issue Shares as required to be issued upon the exercise of Five Prime’s options or the vesting of Five Prime’s stock awards and (y) Five Prime may issue stock awards to new employees who were offered such awards as part of offer letters that were executed prior to the execution thereofdate of the Merger Agreement; • except as contemplated by the Merger Agreement, establish, adopt, terminate or amend any Five Prime employee benefit plan (or any plan, program, arrangement, practice or agreement that would be a Five Prime employee benefit plan if it were in existence on the date of the Merger Agreement), or amend or waive any of its rights under, or accelerate the vesting under, any provision of any Five Prime employee benefit plan (Bor any plan, program, arrangement, practice or agreement that would be a Five Prime employee benefit plan if it were in existence on the date of the Merger Agreement) confidentiality agreements entered into or grant any employee or director of Five Prime any award or increase in compensation, bonuses or other benefits, except that Five Prime may (a) amend any Five Prime employee benefit plan to the extent required by applicable laws; and (b) make annual or quarterly bonus or commission payments based on actual performance for completed performance periods in the ordinary course of business in accordance with the Bid Procedures Order, (C) contracts bonus or agreements entered into in connection with commission plans existing on the Bankruptcy Cases (including any in connection with an Alternative Transaction) and (D) Contracts that would not adversely affect the Assets in any material respect; (iii) amend or modify in any material respect or terminate any Purchased Contract (other than termination or expiration in accordance with its terms) or any Permits (including Environmental Permits) required for the operation date of the Assets as presently conductedMerger Agreement; (iv) change the methods of accounting or accounting practice by Sellers, except as required by concurrent changes in Applicable Law or GAAP as agreed to by its independent public accountants; or (v) to the extent any of the following would reasonably have the effect of increasing the Non-Income Tax liability of Buyer for any period after the Closing Date, (A) make any settlement of or compromise any Non-Income Tax liability with respect to the Assets, (B) change any Non-Income Tax election or Non-Income Tax method of accounting or make any new Non-Income Tax election or adopt any new Non-Income Tax method of accounting with respect to the Assets; (C) surrender any right to claim a refund of Non-Income Taxes with respect to the Assets; or (D) consent to any extension or waiver of the limitation period applicable to any Non-Income Tax claim or assessment with respect to the Assets.