Common use of Certain Additional Covenants Clause in Contracts

Certain Additional Covenants. (a) At the Closing or the Termination Option Closing, as applicable, HEP-Operating will acknowledge in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets and the H▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” and “with all faults” basis, and the instruments conveying the H▇▇▇▇ UNEV Interests shall contain appropriate disclaimers; (b) Upon the exercise of the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, H▇▇▇▇ UNEV and HEP-Operating shall cooperate in good faith and use commercially reasonable efforts to obtain all necessary governmental and other third person approvals, waivers and consents required for the Closing or the Termination Option Closing, as applicable; (c) Following the delivery of the Exercise Notice pursuant to Section 1.2 and prior to the Closing, H▇▇▇▇ UNEV shall not cause UNEV Pipeline to make a Material Decision without the prior written consent of HEP-Operating, which consent shall not be unreasonably withheld, delayed, conditioned or denied; and (d) Following the giving of notice of the exercise of the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, and prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any and all obligations in respect of all letters of credit, guarantees, surety bonds and the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP Entity.

Certain Additional Covenants. In addition to (and not in limitation of) any other restrictions imposed on the Credit Parties contained herein and in the other Loan Documents, Borrowers hereby covenant and agree in connection with the Permitted Restructuring that: (a) At Borrower Representative shall give Agent and its legal counsel prior written notice of any proposed name change, reincorporation or merger or consolidation of Parent, Holdings, any Borrower or any Subsidiary thereof in connection with the Closing Permitted Restructuring or otherwise and will take all actions and execute and deliver all documents and instrument as requested from time to time by Agent to ensure Agent on behalf of itself and Lenders continues to have a valid, first priority (subject only to permitted encumbrances) Lien upon all of the Termination Option ClosingCollateral after giving effect to any such name change, as applicablereincorporation, HEP-Operating will acknowledge in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets and the H▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” and “with all faults” basis, and the instruments conveying the H▇▇▇▇ UNEV Interests shall contain appropriate disclaimersmerger or consolidation; (b) Upon Not later than ten Business Days after the exercise Permitted Restructuring Start Date, Borrower Representative shall have delivered the following documents and opinions to Agent, in each case, in form and substance satisfactory to Agent: (i) legal opinion covering matters with respect to Parent, the other Credit Parties and the Loan Documents executed and delivered by Parent to Agent and Lenders, including due incorporation, valid existence, good standing, power and authority, enforceability, no conflict, valid creation and perfection of security interests, the Initial Merger and the Name Change Merger have been consummated in accordance with applicable law (which shall reflect the legality and effectiveness of such mergers in form and substance satisfactory to Agent and its counsel), and the continued enforceability of the Option or Loan Documents and the Termination Option by HEP-Operating Liens in favor of Agent and Lenders granted pursuant thereto after giving effect to Section 1.2 or Section 3.6such mergers, respectively, H▇▇▇▇ UNEV and HEP-Operating shall cooperate in good faith and use commercially reasonable efforts such other matters as Agent may reasonably request; (ii) secretary's certificate of Parent as to obtain all necessary governmental incumbency and other third person approvalsmatters together with following attachments (A) Articles of Incorporation of Parent, waivers certified by Secretary of State of Minnesota, (B) bylaws of Parent, (C) board resolutions or consents authorizing execution of all Loan Documents by Parent, and consents required for the Closing or the Termination Option Closing, as applicable(D) good standing certificate issued by Secretary of State; (c) Following From and after the delivery Closing Date, Parent shall not (i) engage in any business activity other than business activities directly related to the provision of administrative services to the Borrowers, including, but not limited to, accounting, legal, business development and certain marketing services and other business activities directly related to being a holding company; (ii) incur any Indebtedness other than (x) the Obligations and (x) following the consummation of the Exercise Notice pursuant to Section 1.2 and prior to Initial Merger, the Closing, H▇▇▇▇ UNEV shall not cause UNEV Pipeline to make a Material Decision without the prior written consent assumption by Parent of HEP-Operating, which consent shall not be unreasonably withheld, delayed, conditioned or denied; and (d) Following the giving certain Indebtedness of notice of the exercise of the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, and prior to Holdings existing on the Closing Date as described on Disclosure Schedule 1.1 (Permitted Restructuring); (iii) create or acquire any Subsidiaries (whether in connection with any Acquisition or otherwise) except as expressly described on Disclosure Schedule 1.1 (Permitted Restructuring); or (iv) engage in any Acquisition except for the Termination Option Closing, as applicable, HEP-Operating shall offer acquisition of Stock of Subsidiaries of Holdings and use commercially reasonable efforts to obtain the release certain assets of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any and all obligations in respect of all letters of credit, guarantees, surety bonds and the like (the “Guarantees”) given by each H▇▇▇▇ Entity Holdings in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP EntityPermitted Restructuring.

Certain Additional Covenants. In addition to the covenants contained elsewhere in this Lease, Tenant covenants, during the Lease Term and for such further time as Tenant occupies any part of the Premises: (a) At to pay when due all Annual Fixed Rent and Additional Rent and all charges provided hereunder for utility services rendered to the Closing or the Termination Option ClosingPremises and, as applicablefurther Additional Rent, HEP-Operating will acknowledge in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets all charges for additional and the H▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” and “with all faults” basis, and the instruments conveying the H▇▇▇▇ UNEV Interests shall contain appropriate disclaimersspecial services rendered pursuant to Exhibit D; (b) Upon to keep the exercise Premises equipped with all safety appliances (including without limitation fire extinguishers) required by law or ordinance or any other regulation of any public authority, to procure all licenses and permits, other than the Option or Building certificate of occupancy, in accordance with the Termination Option by HEP-Operating pursuant to terms of Section 1.2 or Section 3.6, respectively, H▇▇▇▇ UNEV and HEP-Operating shall cooperate in good faith and use commercially reasonable efforts to obtain all necessary governmental and other third person approvals, waivers and consents required for the Closing or the Termination Option Closing, as applicable9.2 hereof; (c) Following not to place a load upon any floor in the delivery Premises exceeding the floor load per square foot of area which such floor was designed to carry and which is allowed by law as set forth in Exhibit D attached hereto; and not to move any safe, vault or other heavy equipment in, about or out of the Exercise Notice pursuant Premises except in such manner and at such time as Landlord shall in each instance expressly authorize, such authorization not to Section 1.2 be unreasonably withheld or conditioned. Tenant’s business machines and prior mechanical equipment shall be placed and maintained by Tenant at Tenant’s expense in settings sufficient to absorb and prevent vibration or noise that may be transmitted to the ClosingBuilding structure or to any other space in the Building; (d) to pay promptly when due all taxes which may be imposed upon personal property (including, H▇▇▇▇ UNEV without limitation, fixtures and equipment) in the Premises by whomever assessed; (e) to pay within thirty (30) days after demand as Additional Rent, regardless of whether any default or Event of Default has occurred or whether any proceeding to enforce the Lease has been commenced, all costs and expenses, reasonable attorneys’ fees and disbursements and other fees incurred by Landlord in connection with (i) the successful enforcement by Landlord of any obligation of Tenant under this Lease; (ii) the successful preservation and enforcement of Landlord’s rights and remedies in connection with the Lease; (iii) any unsuccessful attempt by Tenant to enforce any obligation or purported obligation of Landlord under this Lease; (iv) any unsuccessful action or proceeding brought by Tenant against Landlord related to this Lease. If Tenant prevails in any action or proceeding to enforce any provision of this Lease or the unsuccessful attempt by Landlord to enforce any obligation or purported obligation of Tenant under this Lease, Landlord shall not pay within thirty (30) days after demand all costs and expenses, reasonable attorneys’ fees and disbursements and other fees incurred by Tenant in connection therewith. This provision shall survive the termination of this Lease; (f) [intentionally deleted]; (g) to cause UNEV Pipeline all of the windows in the Premises to make a Material Decision without be kept closed; to keep entirely unobstructed at all times all of the prior written consent vents, intakes, outlets and grills; and to comply with and observe all reasonable regulations and requirements prescribed by Landlord for the proper functioning of HEPthe heating, ventilating and air-Operating, which consent shall not be unreasonably withheld, delayed, conditioned or deniedconditioning system; and (dh) Following not to, either directly or indirectly (i) conduct business in the giving of notice of Premises in such a manner that would or may create or (ii) use any contractors and/or labor and/or materials if the exercise of use thereof, would or may create, any labor disputes with other contractors and/or labor and/or materials engaged or used by Tenant or Landlord in the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, and prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any and all obligations in respect of all letters of credit, guarantees, surety bonds and the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and and/or operation of the UNEV ProjectUnit or the Building or any part thereof. This provision shall apply prior to, including providing any reasonably requested Guarantees of any HEP Entityas well as during, the Lease Term.

Certain Additional Covenants. (a) At Buyer shall cause the Business of the Surviving Corporation to be operated as a separately reporting business unit until December 31, 2004. Buyer agrees that from and after the Closing or Date until December 31, 2004, Buyer shall cause the Termination Option Closing, as applicable, HEP-Operating Surviving Corporation's Business to maintain a financial reporting system that will acknowledge in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets and be sufficient to permit a firm of independent accountants to determine the H▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” and “with all faults” basisBusiness' EBITDA, and consequently, the instruments conveying amount of the H▇▇▇▇ UNEV Interests Earnout Payments for 2003 and 2004, if any, pursuant to Section 2.11. If after the Closing Date until December 31, 2004, any contracts of the Surviving Corporation's Business are transferred, assigned, or otherwise allocated or attributed, for financial reporting purposes, to Buyer or any of its other subsidiaries (other than the Company), then equitable and reasonable adjustments will be made in calculating the Business' EBITDA, and consequently, the amount of Earnout Payments, if any, to eliminate the effect of any transfer, assignment, allocation or attribution, and no such transfer, assignment, allocation or attribution shall contain appropriate disclaimers;be made unless the financial reporting system referred to in the immediately preceding sentence is capable of tracking the performance of distinct contracts in a manner that will permit such determination of the Business' EBITDA, and consequently, of the amount of the Earnout Payments payable pursuant to the terms of this Agreement. If after the Closing Date until December 31, 2004, any contracts of the Buyer or its subsidiaries (other than the Company) are transferred, assigned, or otherwise allocated or attributed, for financial reporting purposes, to the Surviving Corporation's Business, then equitable and reasonable adjustments shall be made in calculating the Business' EBITDA, and consequently, the amount of the Earnout Payments, if any, to eliminate the effect of any transfer, assignment, allocation or attribution and no such transfer, assignment, allocation or attribution shall be made unless the financial reporting system referred to in the immediately preceding sentence is capable of tracking the performance of distinct contracts in a manner that will permit such determination of the Business' EBITDA, and consequently, of the amount of Earnout Payments pursuant to the terms of this Agreement. All actions taken by Buyer during the period covered by this Section 5.11(a) shall be in good faith and not for the purpose of reducing the amount of Earnout Payments pursuant to the terms of this Agreement. (b) Upon Notwithstanding anything herein to the exercise contrary, after the Effective Time and continuing through December 31, 2004, the Surviving Corporation, at the discretion of the Option or Shareholder Representative, shall be permitted to initially continue, in accordance with the Termination Option by HEP-Operating Company's past practices, (i) its employee vacation policy, (ii) its employee Bonus Plan and (iii) profit sharing distributions pursuant to Section 1.2 or Section 3.6its Profit Sharing Plan, respectivelywith the understanding that each of the foregoing benefits may be revised in the future, H▇▇▇▇ UNEV on a mutually agreeable basis, with the understanding that there will be no adverse effect to the employees' compensation on an overall basis. Notwithstanding anything herein to the contrary, after the Effective Time and HEP-Operating continuing through December 31, 2004, the Surviving Corporation shall cooperate in good faith and use commercially reasonable efforts be permitted to obtain all necessary governmental and other third person approvals, waivers and consents required continue its overtime pay policy for the Closing or the Termination Option Closing, as applicable;direct billable employees. (c) Following the delivery The Merger Parties agree to use their best efforts to work together to limit any adverse effects of the Exercise Notice pursuant to Section 1.2 allocations of overhead and prior general and administrative expenses with respect to the Closing, H▇▇▇▇ UNEV shall not cause UNEV Pipeline to make a Material Decision without the prior written consent of HEP-Operating, which consent shall not be unreasonably withheld, delayed, conditioned or denied; andSurviving Corporation's competitive position. (d) Following The Bonus Retention Escrow Amount shall be held in the giving of notice Bonus Retention Escrow Account in order to compensate certain employees of the exercise Company who continue their employment with the Surviving Corporation for a certain period of time after the Closing Date in accordance with certain retention agreements by and between such employees and the Company ("Retention Agreements"). Buyer agrees to cause the Surviving Corporation to comply with the terms of the Option or Retention Agreements entered into by such employees to effect proper distributions from the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, and prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any and all obligations in respect of all letters of credit, guarantees, surety bonds and the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP EntityRetention Bonus Escrow Account.

Certain Additional Covenants. The following covenants are hereby added to the Agreement and Seller's and Buyer's obligations with respect thereto shall survive Closing: (ai) At Seller agrees to perform all obligations of the Great Mall under the Cooperative Agreement and to cause its work thereunder to be completed on or before March 1, 2004, and to enforce the obligations of the VTA thereunder, in a manner sufficient to enable the issuance of a permanent certificate of occupancy for the parking structure on the Property (if the condition for which has not by then been released and the permanent certificate issued) (the "CO") and to enable Buyer to otherwise satisfy certain conditions to reuse of the 60,000 square feet which currently cannot be utilized pursuant to the conditional use permits issued for the Property (the "Reuse Conditions"). Seller agrees to escrow with Escrow Agent on the Closing Date the portion of costs to be paid by Seller pursuant to the Cooperative Agreement as provided in the current budget for the cost of the work attached thereto plus the amount of acquisition costs required to be funded by Seller thereunder ("Cooperative Agreement Escrow") currently estimated to be $497,045.00, which escrow will provide for payments to Seller on account of the costs of its work, an increase of the escrowed funds from time to time to reflect revised budgets and which will be assigned to Buyer pursuant to the conditional assignment attached as Exhibit G hereto. Seller's obligations hereunder shall not be subject to the Liability Cap Amount. Buyer hereby acknowledges and agrees that in addition to the work under the Cooperative Agreement, other conditions as set forth in Use Permit Amendments P-UA2002-18 and EIA No. P-EA20028, including but not limited to the Special Conditions (Item 6 of which is the work under the Cooperative Agreement) exist which must be satisfied and which will be Buyer's responsibility after Closing. Seller shall diligently pursue any and all approvals required to be obtained by it to enable the Cooperative Agreement work to be performed by it to be finished on or before the date set forth above and shall diligently perform such work in a manner which is in compliance with all applicable laws, rules, regulations and permits issued therefor. If Seller fails to obtain the approvals required to perform its work under the Cooperative Agreement, or if after obtaining same, Seller fails to perform its work to completion, or if, for any reason, the work under the Cooperative Agreement necessary to obtain the CO and satisfy the Reuse Conditions has not been completed by March 1, 2004, Buyer shall have the right to cause such work to be completed (and Seller shall at Closing assign pursuant to a conditional assignment in form attached hereto as Exhibit G, to Buyer all of its rights under the Cooperative Agreement and the Cooperative Agreement Escrow, whether then existing or coming into existence in the future and any other contracts entered or to be entered into in furtherance thereof, provided that the exercise of Buyer's rights under such assignment shall be as set forth in Exhibit G) and Buyer shall be entitled to utilize the funds in the Cooperative Agreement Escrow to cause such work to be completed. In addition, Seller shall indemnify, defend and hold harmless Buyer from and against any and all liabilities, losses, damages, liens (including mechanics' liens filed against the Property), costs, and expenses (including reasonable attorneys' fees) which in any way arise out of Seller's work under the Cooperative Agreement. Seller shall not amend the Cooperative Agreement in any way not contemplated in the Cooperative Agreement or in any manner which would materially adversely affect Seller's or the Termination Option ClosingVTA's ability to complete the work to be performed under the Cooperative Agreement (or Buyer's ability to complete the work pursuant to the assignment if required) or to obtain the CO and satisfy the Reuse Conditions as and when provided for herein, as applicablewithout Buyer's written consent and shall promptly give copies of any notices given by or received by Seller thereunder to Buyer. In addition, HEP-Operating will acknowledge in writing that except as otherwise provided in Section 2.1 hereofBuyer shall be entitled to review and reasonably approve the form of easement agreements for access to be entered into pursuant to the Cooperative Agreement prior to execution of such easements. (ii) In connection with the "Notice of Proposed Escape Assessment" dated June 17, UNEV Pipeline’s assets and 2003, received by Seller from the HSanta ▇▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” County Assessor ("Assessor") with respect to personal property taxes at the Property, Seller covenants that Seller will diligently respond to such notice and “with all faults” basisshall negotiate or otherwise obtain a resolution to the claims asserted by the Assessor for additional personal property taxes in a manner permitted by applicable law (including formal appeal), and to the instruments conveying extent any amounts are owed to the HAssessor as a result of such proceedings (including penalties and interest), Seller shall promptly pay the same (in all events before they become a lien on the Property). Seller further agrees that notwithstanding anything to the contrary in the Agreement, Seller shall not have the right to seek reimbursement from any Tenants of the Property for any amounts paid by Seller with respect to such proceedings. In addition, to the extent Seller becomes entitled to a refund of real property taxes previously paid for the years 1999, 2000, 2001, and/or 2002 as a result of other proceedings or related appeals filed by Seller, promptly following Seller's receipt of any refund, Seller shall remit to Buyer an amount equal to the amount by which such real property tax refund exceeds that portion of the increased personal property taxes paid or to be paid by Seller pursuant to this Section which Seller, pursuant to the express terms of the Leases, would have been entitled to recover from the Tenants of the Property if it had remained the landlord thereunder. If Seller fails to pay any amount owed to Santa ▇▇▇▇▇ UNEV Interests County pursuant to this Section when due (including any interest or penalties) or to remit the applicable portion of any such refund to Buyer within ten (10) days following the determination of the amount due, Buyer shall contain appropriate disclaimers;be entitled to draw upon the Holdback Escrow Funds in an amount equal to any such delinquencies and/or amounts owed, all as set forth in the Exhibit M Holdback Escrow Agreement. The obligations of Seller and Buyer hereunder shall continue to survive the Closing Date until all claims for refunds are finally resolved. (biii) Upon On or before November 15, 2003, Seller shall relocate the exercise current pylon sign for the advertising of the Option or Property located along Interstate 880 to property leased under the Termination Option by HEP-Operating pursuant Lease Agreement between the Seller and City of Milpitas ("City"), shall perform all modifications to Section 1.2 or Section 3.6, respectively, H▇▇▇▇ UNEV such sign and HEP-Operating shall cooperate in good faith and use commercially reasonable efforts to obtain all necessary governmental and other third person approvals, waivers and consents required the 680 pylon sign for the Closing or Property as may be required by applicable governmental authorities, including CalTrans and the Termination Option ClosingCity of Milpitas, as applicable; (c) Following and shall provide evidence to Buyer that the delivery relocated 880 pylon sign is located on the property which is the subject of the Exercise Notice pursuant to Section 1.2 Lease Agreement between Seller and prior to the ClosingCity of Milpitas. In addition, H▇▇▇▇ UNEV on or before December 15, 2003, Seller shall not cause UNEV Pipeline to make a Material Decision without provide Buyer with evidence that all applicable licenses, permits and approvals for the prior written consent pylon signs on Interstate 680 and 880 have been issued by CalTrans, the City of HEP-OperatingMilpitas, which consent and all other governmental authorities having jurisdiction. In connection with such work, Seller shall not be unreasonably withheld, delayed, conditioned or denied; and (d) Following the giving of notice comply with all of the exercise terms of the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, and prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any and all obligations in respect of all letters of credit, guarantees, surety bonds and the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP Entityapplicable sign leases.

Certain Additional Covenants. (a) At the Closing or the Termination Option Closing, as applicable, HEP-Operating will acknowledge in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets The Manager and the H▇▇▇▇ UNEV Interests are being accepted on an “Fund hereby jointly and severally covenant and agree as is,” “where is” follows: (i) unless otherwise directed or authorized by the Unitholders, to use their best efforts to: (A) monitor all aspects of the Fund's affairs relevant to its continuing qualification as a unit trust and “with all faults” basisa mutual fund trust for purposes of the Income Tax Act (Canada), and will promptly notify First Associates Investments Inc. upon its becoming aware of any circumstance that may cause the instruments conveying the H▇▇▇▇ UNEV Interests shall contain appropriate disclaimersFund to fail to continue to so qualify; (bB) Upon monitor the exercise level of ownership of Units held by persons who are not resident in Canada and notify holders of Units in the manner contemplated by the Trust Agreement and the Agents as provided herein upon its becoming aware that: (1) more than 40% of the Option issued and outstanding Units are held by or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, H▇▇▇▇ UNEV and HEP-Operating shall cooperate in good faith and use commercially reasonable efforts to obtain all necessary governmental and other third person approvals, waivers and consents required for the Closing benefit of persons who are not resident in Canada or circumstances exist that may reasonably be anticipated to result in such holding; or (2) a governmental body has proposed to change the Termination Option ClosingIncome Tax Act (Canada) or any other applicable legislation in a manner which reasonably could be expected to have a material adverse effect on the tax consequences to holders of Units, as applicableincluding without limiting the foregoing, any change or proposed change whereby the Units may cease to be eligible investments not constituting "foreign property" for any of the various deferred income plans provided for by the Income Tax Act (Canada) or whereby amounts allocated to Unitholders with respect to the Fund's income cease to be deductible by it; (cC) Following the delivery Fund will at all times conduct its affairs so as to continue to enable the Fund to qualify as a mutual fund trust and a unit trust under the Income Tax Act (Canada) and, in particular, the Fund will not carry on any business and will restrict its activities such that its only undertaking will be the investing of its funds in property in which a unit trust and a mutual fund trust are permitted by the Exercise Notice pursuant Income Tax Act (Canada) to Section 1.2 and prior to the Closing, H▇▇▇▇ UNEV shall not cause UNEV Pipeline to make a Material Decision without the prior written consent of HEP-Operating, which consent shall not be unreasonably withheld, delayed, conditioned or deniedinvest; and (dii) Following to duly, punctually and faithfully do and perform all the giving of notice of the exercise of the Option or the Termination Option obligations to be performed by HEP-Operating pursuant them under all Material Agreements to Section 1.2 or Section 3.6, respectively, and prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any which they are a party and all obligations such other things which they represent in respect the Prospectus will be done by either of them (including, without limitation, make all letters of creditsuch elections, guarantees, surety bonds filings and the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP Entitydistributions).

Certain Additional Covenants. (a) At During the period commencing on the date hereof and ending on the Closing or the Termination Option ClosingDate, as applicable, HEP-Operating will acknowledge in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets and the H▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” and “with all faults” basis, and the instruments conveying the H▇▇▇▇ UNEV Interests shall contain appropriate disclaimers; (b) Upon the exercise of the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, H▇▇▇▇ UNEV and HEP-Operating shall cooperate in good faith and use commercially reasonable efforts to obtain all necessary governmental and other third person approvals, waivers and consents required for the Closing or the Termination Option Closing, as applicable; (c) Following the delivery of the Exercise Notice pursuant to Section 1.2 and prior to the Closing, H▇▇▇▇ UNEV shall not cause UNEV Pipeline to make a Material Decision without the prior written consent of HEP-Operatingthe other parties hereto or except as expressly permitted or required by this Agreement, none of BKB and FA will permit its respective Credit Card Subsidiaries to, and ▇▇▇▇▇▇ shall not: (a) make any material change in accounting methods, principles or practices used by such Person in its Contributed Business, unless required by law or by changes in GAAP; (b) except as set forth on Schedule 5.2(b) hereto, (i) enter into any material contract, transaction or commitment related to such Person's Contributed Business or (ii) terminate or materially change any material contracts which consent shall not be unreasonably withheldconstitute Contributed Assets, delayedin each case, conditioned other than in the ordinary course of business consistent with past practice; (i) except as set forth in item 2 in Schedule 5.2(b) hereto, transfer or deniedotherwise dispose of or encumber any of the Contributed Assets, other than in the ordinary course of business consistent with past practice; and(ii) cancel any debt or waive or compromise any claim or right related to such Person's Contributed Business, other than in the ordinary course of business consistent with past practice; (iii) make any capital expenditure or commitment related to such Person's Contributed Business, other than in the ordinary course of business consistent with past practice; (iv) except with respect to endorsements of negotiable instruments in the ordinary course of its business, incur, assume or guarantee any indebtedness for borrowed money related to such Person's Contributed Business which will constitute a liability to the Company as of the Closing Date other than (A) purchase money indebtedness, (B) indebtedness for borrowed money pursuant to credit agreements, credit lines and other borrowing facilities and arrangements in effect on the date of this Agreement, (C) refinancing of existing indebtedness, or (D) indebtedness incurred by such Person pursuant to any revolving credit facility utilized to finance its Contributed Business; or (v) agree to do any of the foregoing; (d) Following unless required by applicable law or pursuant to this Agreement or the giving other Related Agreements, materially alter or vary its methods or policies of notice underwriting, originating, selling or servicing, or buying or selling rights to service, the Contributed Assets, except as specifically set forth in the proviso to Section 5.1 (a) with respect to ▇▇▇▇▇▇; (e) except as contemplated hereby or by the other Related Agreements, enter into any servicing agreement with respect to the Contributed Assets; (f) enter into or amend any employment, bonus, severance, or retirement contract or arrangement, or increase any salary or other form of compensation payable or to become payable to any current or former employee, officer, or director engaged in such Person's Contributed Business (including any beneficiary thereof), except (i) as may be required in order to obtain any favorable determination letter with respect to any employee benefit plan intended to be qualified under Section 401(a) of the exercise Internal Revenue Code of 1986, as amended (the Option "Code"), (ii) merit increases to employees (including directors and executive officers) in accordance with past practices and general increases to employees (excluding directors and executive officers) as a class in accordance with past practice or the Termination Option as required by HEP-Operating pursuant law, (iii) bonus payments made to Section 1.2 or Section 3.6, respectively, and FAMIS employees prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as (iv) other obligations which would not become obligations of the Closing Company upon Closing; or (g) enter into any agreement, understanding or transaction with any Affiliate related to such Person's Contributed Business, other than (i) on arms-length terms in the Termination Option Closingordinary course of business consistent with past practices, or (ii) as applicable, from any and all obligations in respect of all letters of credit, guarantees, surety bonds and expressly contemplated hereby or by the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP Entityother Related Agreements.

Certain Additional Covenants. (a) At Seller will, and will cause the management of the Company to, upon reasonable request, meet with Purchaser during normal business hours at C&A's or the Company's principal executive offices to discuss the general status of the ongoing operations of the Company, and Seller will notify Purchaser (i) of any emergency or change in the normal conduct of the Business and (ii) of any event, occurrence, fact, condition, change or effect that constitutes a breach of any representation, warranty or covenant of C&A or Seller hereunder of which, to the Knowledge of Seller, Purchaser or Parent does not also have Knowledge (other than any of the foregoing occurring after the date hereof and not constituting a breach of Seller's or C&A's covenants in this Agreement); provided, however, that for purposes of the rights and obligations of the parties, any supplemental or amended disclosure by Seller will not be deemed to have been disclosed unless so agreed in writing by Purchaser, or to preclude Purchaser from (i) seeking a remedy in damages for losses incurred as a result of the omission of such supplemented or amended disclosure, subject to the limitations set forth in Section 5.2 or (ii) terminating this Agreement if such supplemented or amended disclosure causes or reveals the failure of any condition to Purchaser's obligation to close. (b) Purchaser will notify Seller prior to the Closing if Purchaser obtains Knowledge of any breach of any representation, warranty or covenant of Seller or C&A hereunder of which, to the Termination Option ClosingKnowledge of Purchaser, as applicable, HEP-Operating Seller or C&A does not also have Knowledge. (c) C&A and Seller will acknowledge in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets and the Huse reasonable efforts to have ▇▇▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” and “with all faults” basis, and the instruments conveying the H▇▇▇▇ UNEV Interests shall contain appropriate disclaimers; (b) Upon the exercise of the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, H▇▇▇▇ UNEV and HEP-Operating shall cooperate in good faith and ▇▇, L.L.P. consent to Purchaser's use commercially reasonable efforts to obtain all necessary governmental and other third person approvals, waivers and consents required for the Closing or the Termination Option Closing, as applicable; (c) Following the delivery of the Exercise Notice pursuant audited financial statements included in the Financial Statements as may be required by applicable Law in the disclosure documents relating to Section 1.2 and prior to the Closing, H▇▇▇▇ UNEV shall not cause UNEV Pipeline to make a Material Decision without the prior written consent of HEP-Operating, which consent shall not be unreasonably withheld, delayed, conditioned or denied; and (d) Following the giving of notice of the exercise of the Option or the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, and prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any and all obligations in respect of all letters of credit, guarantees, surety bonds and the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP EntityPurchaser's contemplated financing.

Certain Additional Covenants. At any time during which the Purchaser owns any outstanding Notes or the Warrant: (a) At Prior to entering into any Claim Proceeds Purchase Agreement with any Person whose primary place of residence or business is located in a state in which there are no Persons with which the Closing Company had previously entered into a Claim Proceeds Purchase Agreement, the Company shall (i) consult with legal counsel (which may or may not be licensed to practice in the Termination Option ClosingApplicable State) with respect to the validity and enforceability of Claim Proceeds Purchase Agreements under the Applicable Law of the Applicable State and (ii) on the basis of such legal consultations, as applicableamong other factors, HEP-Operating will acknowledge attempt in writing that except as otherwise provided in Section 2.1 hereof, UNEV Pipeline’s assets and good faith to make a considered business judgment with respect to the H▇▇▇▇ UNEV Interests are being accepted on an “as is,” “where is” and “with all faults” basis, and the instruments conveying the H▇▇▇▇ UNEV Interests shall contain appropriate disclaimers;advisability of entering into such Claim Proceeds Purchase Agreement. (b) Upon The Company shall cause to be done all things necessary to maintain, preserve and renew its corporate existence and all material licenses, authorizations and permits necessary to the exercise conduct of its business. (c) The Company shall apply for and continue in force adequate insurance covering risks of such types and in such amounts as are customary for corporations of similar size engaged in similar lines of business. (d) The Company shall pay and discharge, when due and payable, all taxes, assessments and governmental charges imposed upon its properties or upon the Option income or profits therefrom (in each case before the Termination Option by HEP-Operating pursuant to Section 1.2 or Section 3.6, respectively, H▇▇▇▇ UNEV same becomes delinquent and HEP-Operating shall cooperate before penalties accrue thereon) unless the same is being contested in good faith and use commercially reasonable efforts to obtain all necessary governmental by appropriate proceedings and other third person approvalsadequate reserves (as determined in accordance with GAAP, waivers and consents required for the Closing or the Termination Option Closing, as applicable;consistently applied) have been established on its books with respect thereto. (ce) Following The Company shall pay and discharge, when due and payable, all interest and principal amounts payable under the delivery Notes and any other indebtedness of the Exercise Notice pursuant to Section 1.2 Company (in each case before the same becomes delinquent and prior before penalties accrue thereon), subject to the Closing, H▇▇▇▇ UNEV shall not cause UNEV Pipeline to make a Material Decision without the prior written consent of HEP-Operating, which consent shall not be unreasonably withheld, delayed, conditioned or denied; and (d) Following the giving of notice terms and conditions of the exercise of Notes and such other indebtedness, unless the Option or the Termination Option same is being contested in good faith and by HEP-Operating pursuant to Section 1.2 or Section 3.6appropriate proceedings and adequate reserves (as determined in accordance with GAAP, respectively, and prior to the Closing or the Termination Option Closing, as applicable, HEP-Operating shall offer and use commercially reasonable efforts to obtain the release of each H▇▇▇▇ Entity, effective as of the Closing or the Termination Option Closing, as applicable, from any and all obligations in consistently applied) have been established on its books with respect of all letters of credit, guarantees, surety bonds and the like (the “Guarantees”) given by each H▇▇▇▇ Entity in connection with the acquisition, construction, maintenance and operation of the UNEV Project, including providing any reasonably requested Guarantees of any HEP Entitythereto.