Common use of TABLE OF CONTENTS Clause in Contracts

TABLE OF CONTENTS. The Depository may at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.

TABLE OF CONTENTS. The Depository may at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect Class A-2a Note issued upon the appointment registration of a successor Depository hereunder and its acceptance of such appointment transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as hereinafter provided. In case at any time provided in the Depository acting hereunder shall resign or be removedIndenture, the Corporation shall, within 60 days after the delivery for payment in full of the notice then remaining unpaid principal amount of resignation or removalthis Class A-2a Note on a Distribution Date, as then the case may beIndenture Trustee, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of and on behalf of the predecessor Depository Issuer, shall notify the Person who was the Holder hereof as of the Record Date preceding such Distribution Date by notice mailed or transmitted by facsimile prior to such Distribution Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Class A-2a Note at the Indenture Trustee’s Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in St. Xxxx, Minnesota. The Issuer shall pay interest on overdue installments of interest at the Class A-2a Rate to the extent lawful. As provided in the Indenture, the Notes may be redeemed, in whole but not in part, in the manner and to the extent described in the Indenture and the Sale and Servicing Agreement. As provided in the Indenture, and subject to certain limitations set forth therein, the transfer of this Class A-2a Note may be registered on the Note Register upon surrender of this Class A-2a Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, and thereupon one or more new Class A-2a Notes in any authorized denomination and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Class A-2a Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange. Each Noteholder or Note Owner, by its own acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith against (i) the Indenture Trustee or the Owner Trustee, each in its individual capacity, (ii) any holder of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee, each in its individual capacity, or any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or any successor or assign of the Indenture Trustee or the Owner Trustee, each in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that such Noteholder or Note Owner shall not at any time institute against the Depositor or the Issuer, or join in any institution against the Depositor or the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or Table of Contents liquidation proceedings under any United States federal or State bankruptcy or similar law in connection with any obligations relating to the Notes, the Certificates, the Indenture or any of the other Transaction Documents. Each Noteholder or Note Owner (and its fiduciary, if applicable), by its acceptance of this Note or, in the case of a Note Owner, a beneficial interest in this Note, represents and warrants that either (a) it is not acquiring such Note (or an interest therein) with the assets of any (i) “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) subject to the fiduciary requirements of ERISA, (ii) “plan” described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”), that is subject to the provisions of Section 4975 of the Code, (iii) entity whose underlying assets include “plan assets” within the meaning of the United States Department of Labor Regulation 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, by reason of an employee benefit plan’s or plan’s investment in such entity or (iv) employee benefit plan or arrangement not subject to Title I of ERISA or Section 4975 of the Code; or (b) the acquisition and holding of such Note will not give rise to a non-exempt “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code or a violation of any federal, state, local or other law that is substantially similar to Title I of ERISA or Section 4975 of the Code. Each Noteholder or Note Owner, by its acceptance of this Note or, in the case of a Note Owner, a beneficial interest in this Note, agrees to provide to the Indenture Trustee, any Paying Agent or the Issuer, upon its request, the Noteholder Tax Identification Information and, to the extent FATCA Withholding Tax is applicable, the Noteholder FATCA Information. In addition, each Noteholder or Note Owner, by its acceptance of this Note or, in the case of a Note Owner, a beneficial interest in this Note, agrees that the Indenture Trustee has the right to withhold any amounts of interest (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or holder of an interest in a Note that fails to comply with the requirements of the preceding sentence. The Issuer has entered into the Indenture and this Class A-2a Note is issued with the intention that, for federal, State and local income, and franchise tax purposes, the Notes (other than any Retained Notes held by the Issuer or a Person treated as the same Person as the Issuer for federal income tax purposes) will qualify as indebtedness of the Issuer secured by the Trust Estate. Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, agrees to treat the Notes (other than any Retained Notes held by the Issuer or a Person treated as the same Person as the Issuer for federal income tax purposes) for federal, State and local income, single business and franchise tax purposes as indebtedness of the Issuer. Prior to the due presentment for registration of transfer of this Class A-2a Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Class A-2a Note (as successor Depositoryof the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Class A-2a Note shall be overdue, and none of the Issuer, the Indenture Trustee or any such agent shall be affected by notice to the contrary.

TABLE OF CONTENTS. The Depository may at any time be removed Promptly after receipt by the Corporation by an Indemnified Person under this Section 7.2 of notice of such removal delivered to the Depositorycommencement of any action, such removal Indemnified Person will, if a claim in respect thereof is to take effect upon be made against the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time Guarantor under this Section 7.2, notify the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery Guarantor in writing of the notice of resignation or removal, as commencement thereof; but the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in failure so to notify the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, Guarantor (i) will not relieve the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor Guarantor from liability under paragraph (a) above unless and to the Corporation an instrument extent that the Guarantor did not otherwise learn of such action and such failure results in writing accepting its appointment hereunderthe forfeiture by the Guarantor of substantial rights and defenses and (ii) will not, in any event, relieve the Guarantor from any obligations to any Indemnified Person other than the indemnification obligation provided in paragraph (a) above. The Guarantor shall be entitled to appoint counsel of the Guarantor’s choice at the Guarantor’s expense to represent the Indemnified Person in any action for which indemnification is sought (in which case the Guarantor shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the Indemnified Person or Persons except as set forth below); provided, however, that such counsel shall be satisfactory to the Indemnified Person. Notwithstanding the Guarantor’s election to appoint counsel to represent the Indemnified Person in any action, the Indemnified Person shall have the right to employ separate counsel (including local counsel), and thereupon the Guarantor shall bear the reasonable fees, costs and expenses of such successor Depositoryseparate counsel, if (i) the use of counsel chosen by the Guarantor to represent the Indemnified Person would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Person and the Guarantor and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Persons which are different from or additional to those available to the Guarantor, (iii) the Guarantor shall not have employed counsel satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time after notice of the institution of such action or (iv) the Guarantor shall authorize the Indemnified Person to employ separate counsel at the expense of the Guarantor. The Guarantor will not, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the prior written request consent of the CorporationIndemnified Persons, shall promptly execute and deliver an instrument transferring settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Persons are actual or potential parties to such successor claim or action) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Person from all rights and powers liability arising out of such predecessor hereunderclaim, shall duly assignaction, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into suit or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryproceeding.

TABLE OF CONTENTS. The Depository may at Until exchanged in full as hereinabove provided, the temporary Securities of any time series shall in all respects be removed entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by the Corporation by notice Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such removal series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee or the applicable Paying Agent of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to Section 301), for credit without further interest on or after such Interest Payment Date to the respective accounts of Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign Euroclear or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removalClearstream, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the United States form set forth as Exhibit A-1 to this Indenture (or in such other forms as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of America the preceding two paragraphs of this Section 304(b) and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor and, if applicable, having endorsed thereon Guarantees duly executed by the Guarantor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a combined capital beneficial interest in a temporary global Security will be made unless and surplus of at least $50,000,000. If no successor Depository until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so appointed received by Euroclear and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository Clearstream and not paid as herein provided shall execute and deliver to its predecessor and be returned to the Corporation an instrument Trustee or the applicable Paying Agent immediately prior to the expiration of two years after such Interest Payment Date in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all order to be repaid to the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryCompany.

TABLE OF CONTENTS. The Depository the Securities Act and such laws, the Noteholder desiring to effect such transfer and such Noteholder’s prospective transferee shall each certify to the Trust, the Indenture Trustee and the Depositor in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit F (the “Transferor Certificate”) and Exhibit G (the “Investment Letter”), in each case, with such revisions or modifications as may at any time be removed determined by the Corporation Depositor. Except in a transfer pursuant to Rule 144A or a transfer to the Depositor or by notice of such removal the Depositor (or any other entity whose separate existence from the Trust is disregarded for federal income tax purposes) to an Affiliate thereof, there shall also be delivered to the Depository, Depositor and the Indenture Trustee an Opinion of Counsel that such removal transfer may be made pursuant to take effect upon an exemption from the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor DepositorySecurities Act, which shall be a bank or trust company having its principal office in the United States opinion of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof counsel shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name an expense of the predecessor Depository Depositor, the Trust, the Owner Trustee or its own name the Indenture Trustee (unless it is the transferee from whom such opinion is to be obtained). The Trust shall cause the Depositor to provide to any Noteholder and any prospective transferee designated by any such Noteholder information regarding the Retained Notes and the Receivables and such other information as successor Depositoryshall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Retained Notes without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. Each Noteholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Depositor and CarMax (in any capacity) against any liability that may result if the transfer is not so exempt or is not made in accordance with federal and state securities laws.

TABLE OF CONTENTS. The Depository Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, any other Loan Party or any other insider guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s Obligations under or in respect of the guarantee set forth in Article II or any other Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Secured Party against the Borrower, any other Loan Party or any other insider guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower, any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under the guarantee set forth in Article II shall have been paid in full in cash or immediately available funds, all Letters of Credit and all Swap Agreements secured hereunder shall have expired or been terminated or cash collateralized (pursuant to arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank) and the Commitments shall have expired, terminated or shall have been cash collateralized (pursuant to arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank). If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash or immediately available funds of the Obligations and all other amounts payable under the guarantee set forth in Article II and (b) the latest date of expiration or termination or cash collateralization of all Letters of Credit and all Swap Agreements secured hereunder and termination or expiration of all Commitments, such amount shall be removed by received and held in trust for the Corporation by notice ratable benefit of the Secured Parties, shall be segregated from other property and funds of such removal Guarantor and shall forthwith be paid or delivered to the DepositoryAdministrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under the guarantee set forth in Article II, such removal to take effect upon whether matured or unmatured, in accordance with the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery terms of the notice of resignation Loan Documents, or removal, to be held as the case may be, appoint a successor Depository, which shall be a bank Collateral for any Obligations or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000other amounts payable under such guarantee thereafter arising. If no successor Depository (i) any Guarantor shall make payment to any Secured Party of all or any part of the Obligations, (ii) all of the Obligations and all other amounts payable under the guarantee set forth in Article II shall have been so appointed paid in full in cash or immediately available funds, (iii) the ABL Facility Maturity Date shall have occurred and (iv) all Letters of Credit and all Swap Agreements secured hereunder shall have accepted appointment within 60 days after delivery of such noticeexpired or been terminated, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall Administrative Agent will, at such Guarantor’s request and expense, execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor DepositoryGuarantor appropriate documents, without any further act recourse and without representation or deedwarranty, shall become fully vested with all necessary to evidence the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring transfer by subrogation to such successor all rights and powers Guarantor of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and an interest in the Stock and any moneys held hereunder Obligations resulting from such payment made by such Guarantor pursuant to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryguarantee.

TABLE OF CONTENTS. The Depository may at benefit of the Noteholders or the Certificateholder or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes required to consent to any time be removed by such amendment or eliminate the Corporation by notice consent of the Certificateholder to any such amendment, without the consent of the holders of all the outstanding Notes and the Certificate. Promptly after the execution of any such amendment or consent, the Owner Trustee shall furnish written notification of the substance of such removal delivered amendment or consent to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedCertificateholder, the Corporation shall, within 60 days after Indenture Trustee and the delivery of the notice of resignation or removal, as the case may be, appoint a successor DepositoryAdministrator, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of make such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver notification available to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request each of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating theretoRating Agencies. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof It shall not be required hereunder. Such successor Depository may authenticate necessary for the Receipts in the name consent of the predecessor Depository Certificateholder, the Noteholders or its the Indenture Trustee pursuant to this Section to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution of any amendment to the Certificate of Trust, the Owner Trustee shall cause the filing of such amendment with the Secretary of State. Prior to the execution of any amendment to this Agreement or the Certificate of Trust, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent to the execution of such amendment have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee’s own name as successor Depositoryrights, duties or immunities under this Agreement or otherwise.

TABLE OF CONTENTS. The Depository No Certificate may at be held or beneficially owned by any time Person that is not a United States person as defined under Section 7701(a)(30) of the Code. By accepting and holding its beneficial ownership interest in its Certificate, the Holder thereof shall be removed deemed to have represented and warranted that it is a United States person as defined under Section 7701(a)(30) of the Code. Notwithstanding the foregoing, no sale or transfer of a Certificate shall be permitted (including, without limitation, by pledge or hypothecation), and no such sale or transfer shall be registered by the Corporation by notice Certificate Registrar to be effective hereunder, if the sale or transfer thereof increases the number of such removal delivered Certificateholders to more than ninety-five (95). For purposes of determining the total number of Certificateholders, a beneficial owner of an interest in a partnership, grantor trust or S corporation for federal income tax purposes (each a “Flow-Through Entity”) that, directly or through other Flow-Through Entities, owns a Certificate is treated as a holder of a Certificate if (i) substantially all of the value of the beneficial owner’s interest (directly or indirectly) in the Flow-Through Entity is attributed to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and Flow-Through Entity’s interest in the Stock Certificate and any moneys held hereunder to such successor, and shall deliver to such successor (ii) a list principal purpose of the Record Holders use of all outstanding Receipts and such recordsthe Flow-Through Entity to hold the Certificate is to satisfy the 95 holder limitation set out above. If using a Flow-Through Entity to acquire a Certificate, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted Certificateholder shall be deemed to have represented that it is not using the successor Flow-Through Entity in order to avoid the 95 holder limitation set out above. In addition, no sale or transfer of a Certificate shall be registered by the Certificate Registrar or made effective hereunder unless, as evidenced by a written representation and covenant by the transferee in form satisfactory to the Certificate Registrar (upon which representation and covenant the Certificate Registrar may conclusively rely without independent investigation), no member of the Depository without transferee’s expanded group as defined in Treasury Regulation Section 1.385-1(c)(4) (including through a controlled partnership as defined in Treasury Regulation Section 1.385-1(c)(1)) is or will become the execution beneficial owner of a Note. If a Certificateholder or filing a member of any document or any further actits expanded group becomes the beneficial owner of a Note, and notice thereof shall the Depositor is authorized at its discretion to compel such Certificateholder to sell its Certificate to a Person whose ownership complies with this paragraph so long as such sale does not be required hereunder. Such successor Depository may authenticate otherwise cause a material adverse effect on the Receipts in the name of the predecessor Depository or its own name as successor DepositoryTrust.

TABLE OF CONTENTS. Any person who is not an affiliate of the Seller and acquires more than 49.9% of the Certificates will be deemed to represent that it is not a party in interest (within the meaning of ERISA) or a disqualified person (within the meaning of Section 4975(e)(2) of the Code) with respect to any “employee benefit plan” (as defined under Section 3(3) of ERISA) or any “plan” (as described under Section 4975 of the Code), other than a plan that it sponsors for the benefit of its employees, and that no plan with respect to which it is a party in interest or disqualified person has or will acquire any interest in the Notes. The Depository Certificates are issuable only in registered form in denominations as provided in the Trust Agreement, subject to certain limitations therein set forth. The Owner Trustee, the Certificate Registrar and any Paying Agent may at any time be removed by treat the Corporation by notice Person in whose name this Certificate is registered in the Certificate Register (as of such removal delivered the day of determination) as the owner of this Certificate for the purpose of receiving distributions pursuant to the DepositoryTrust Agreement and for all other purposes whatsoever, such removal and none of the Owner Trustee, the Certificate Registrar or any Paying Agent shall be bound by any notice to take the contrary. The Trust Agreement, with certain exceptions therein provided, and the Trust shall terminate and be of no further force or effect upon the appointment earlier of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time (i) the Depository acting hereunder shall resign or be removedpayment to the Servicer, the Corporation shallNoteholders and the Certificateholders of all amounts required to be paid to them pursuant to the terms of the Indenture, within 60 days the Sale and Servicing Agreement and the Trust Agreement and (ii) the Distribution Date next succeeding the month which is one year after the delivery maturity or other liquidation of the notice last Receivable and the disposition of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office any amounts received upon liquidation of any property remaining in the United States Trust. THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Table of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticeContents SOCIAL SECURITY NUMBER OR OTHER IDENTIFICATION NUMBER OF ASSIGNEE: ________________ FOR VALUE RECEIVED, the resigning or removed Depository may petition any court of competent jurisdiction for undersigned hereby sells, assigns and transfers unto _______________________________________________________________________________________________________________ the appointment of a successor Depository. Every successor Depository shall execute within Certificate and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunderall rights thereunder, and thereupon such successor Depositoryhereby irrevocably constitutes and appoints ________________________, without any further act or deedattorney, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and to transfer said Certificate on the written request Certificate Register, with full power of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest substitution in the Stock and any moneys held hereunder premises. Dated: */ NOTICE: The signature to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or this assignment must correspond with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository registered owner as it appears on the face of the within Certificate in every particular, without alteration, enlargement or its own name any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Certificate Registrar. Table of Contents This Certificate of Trust of CarMax Auto Owner Trust 2020-1 (the “Trust”) is being duly executed and filed by U.S. Bank Trust National Association, a national banking corporation, as successor Depositoryowner trustee (the “Owner Trustee”), to form a statutory trust under the Delaware Statutory Trust Act (12 Del. Code, § 3801 et seq.) (the “Act”).

TABLE OF CONTENTS. Capital and its Affiliates continue to own beneficially at least fifty percent (50%) of the shares of Series B Preferred Stock that RA Capital purchases at the Initial Closing (or an equivalent amount of Common Stock issued upon conversion thereof) and (y) RA Capital has not become a Defaulting Purchaser (as defined in the Purchase Agreement); provided further, that Subsection 4.7 shall not be amended or waived without the written consent of BridgeBio, RA Capital, Viking, Amzak, Aisling and Xxxxxxxxx; and provided further that any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. Notwithstanding the foregoing, (a) this Agreement may not be amended or terminated and the observance of any term hereof may not be waived with respect to any Investor without the written consent of such Investor, unless such amendment, termination, or waiver applies to all Investors in the same fashion and (b) in the event the rights under Section 5 are waived with respect to an offering of Equity Securities without an Investor’s prior written consent and any party that participated in waiving such rights actually purchases Equity Securities in such offering, the Company shall grant to any such non-waiving Investor the right to purchase, in a subsequent closing of such issuance on substantially the same terms and conditions, the same percentage of its full pro rata share of such Equity Securities as the highest percentage of any such purchasing waiving party. The Depository may at any time be removed by the Corporation by Company shall give prompt notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such removal delivered to the Depositoryamendment, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter providedtermination, or waiver. In case at any time the Depository acting hereunder shall resign Any amendment, termination, or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which waiver effected in accordance with this Subsection 6.6 shall be a bank binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or trust company having its principal office in the United States exceptions to any term, condition, or provision of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporationin any one or more instances, shall promptly execute and deliver an instrument transferring be deemed to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor be or construed as a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into further or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing continuing waiver of any document such term, condition, or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryprovision.

TABLE OF CONTENTS. The Depository may at any time be removed Ownership Interests (A) are owned of record legally and beneficially by the Corporation by notice applicable Interest Seller in the percentages indicated on Schedule A-3 hereto, (B) were not issued in violation of such removal delivered the preemptive rights of any Person or any agreement or Applicable Law and (C) as of the Closing will be free and clear of all liens, encumbrances, pledges, and security interests of any kind. All issued and outstanding Ownership Interests have been duly authorized and issued and none of the Ownership Interests are or have ever been certificated. There are no outstanding securities convertible into or exchangeable or exercisable for equity interests in the Wholly Owned Entities. There are no outstanding options, warrants, rights, contracts, commitments, understandings, arrangements, subscriptions, voting agreements, proxies, voting trusts, buy-sell agreements, rights of first refusal, rights or obligations relating to the Depositoryequity interests or rights of any kind held by any Person which require any Wholly Owned Entity to issue, such removal repurchase or otherwise acquire or retire the Ownership Interests or which allow any Person to take effect upon acquire any economic or voting interest in any Wholly Owned Entity. There are no bonds, notes, debentures or other indebtedness of any Wholly Owned Entity having the appointment right to vote (or convertible into any security having the right to vote) on any matter on which the owners of a successor Depository hereunder and its acceptance of such appointment Wholly Owned Entity may vote other than in connection with indebtedness that will be satisfied or released on or prior to the Closing Date. Except as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedset forth on Structure Charts, the Corporation shall, within 60 days after the delivery none of the notice of resignation or removalWholly Owned Entities are managed by managers or, except as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office provided in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticeManagement Agreements, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunderasset managers, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request that are not members of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryapplicable Wholly Owned Entity.

TABLE OF CONTENTS. The Depository may at any Indenture permits the Owner Trustee, on behalf of the Issuer, and the Indenture Trustee, with certain exceptions therein provided, to amend or waive from time be removed to time certain terms and conditions set forth in the Indenture without the consent of the Holders of the Notes. The Indenture also permits the Owner Trustee, on behalf of the Issuer, and the Indenture Trustee, with certain exceptions as therein provided, to amend or waive from time to time certain terms and conditions set forth in the Indenture with the consent of the Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class. The Indenture also permits the Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class, on behalf of the Holders of all the Notes, to waive compliance by the Corporation Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by notice the Holders of not less than 51% of the Note Balance of the Controlling Class or the Holder of this Class A-2a Note (or any one or more Predecessor Notes) shall be conclusive and binding on such Holder and on all future Holders of this Class A-2a Note and of any Class A-2a Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such removal delivered consent or waiver is made upon this Class A-2a Note. The term “Issuer”, as used in this Note, includes any successor to the DepositoryIssuer under the Indenture. The Indenture permits the Issuer, such removal under certain circumstances, to take effect upon consolidate or merge with or into another Person, subject to the appointment rights of the Indenture Trustee and the Holders of Notes under the Indenture. The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth. THIS CLASS A-2A NOTE AND THE INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). No reference herein to the Indenture, and no provision of this Note or of the Indenture, shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Class A-2a Note at the times, place and rate, and in the coin or currency, herein prescribed. Anything herein to the contrary notwithstanding, except as expressly provided in the Transaction Documents, none of U.S. Bank National Association, in its individual capacity, Wilmington Trust, National Association, in its individual capacity, any holder of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and beneficial interest in the Stock and Issuer, or any moneys held hereunder of their respective owners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to such successorany of them for, and shall deliver the payment of principal of or interest on this Class A-2a Note or the performance of, or omission to such successor a list perform, any of the Record Holders of all outstanding Receipts and such recordscovenants, books and other information obligations or indemnifications contained in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.the

TABLE OF CONTENTS. The Depository may at Issuing Entity shall promptly transmit any time be removed notice received by it from the Corporation by notice of such removal delivered Noteholders to the Depository, such removal AART Indenture Trustee and the AART Indenture Trustee shall likewise promptly transmit any notice received by it from the Noteholders to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In Issuing Entity: in the case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removalRating Agencies, as to the case may be, appoint a successor DepositoryDepositor, which shall promptly post any such notice to the website maintained by the Depositor for notifications to nationally recognized statistical rating organizations, or at such other address as shall be designated by such Person in a bank written notice to the other parties to this Agreement. Where any Transaction Document provides for notice to Noteholders, Secured Noteholders, the Certificateholders or trust company having its principal office the ACOLT Certificateholder of any condition or event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if it is in writing and mailed, first-class, postage prepaid to each Noteholder, Secured Noteholder, Certificateholder or ACOLT Certificateholder affected by such condition or event, at such Person’s address as it appears on the United States of America Note Register, the Secured Note Register or the Certificate Register, as applicable, not later than the latest date, and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery not earlier than the earliest date, prescribed in such Transaction Document for the giving of such notice. If notice to Noteholders, Secured Noteholders or Certificateholders is given by mail, neither the resigning failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder, Secured Noteholder or removed Depository may petition any court Certificateholder shall affect the sufficiency of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver such notice with respect to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunderother Noteholders, Secured Noteholders or Certificateholders, as applicable, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest notice that is mailed in the Stock and any moneys held hereunder manner herein provided shall conclusively be presumed to have been duly given regardless of whether such successor, and shall deliver to such successor a list notice is in fact actually received. Table of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.Contents

TABLE OF CONTENTS. The Depository may Upon surrender for registration of transfer of any Registered Security of any series at any time be removed office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount, bearing a number not contemporaneously outstanding and containing identical terms and provisions, and having, if applicable, endorsed thereon Guarantees duly executed by the Corporation Guarantor. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination or denominations and of a like aggregate principal amount, containing identical terms and provisions, upon surrender of the Registered Securities to be exchanged at any such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive, having, if applicable, endorsed thereon Guarantees duly executed by notice the Guarantor. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities. If (but only if) permitted by the applicable Board Resolution and (subject to Section 303) set forth in the applicable Officer’s Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons (except as provided below) and with all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such removal delivered missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them, the DepositoryGuarantor and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such removal Holder shall be entitled to take effect upon receive the appointment of a successor Depository hereunder and its acceptance amount of such appointment payment; provided, however, that, except as hereinafter providedotherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. In Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any time such office or agency in a permitted exchange for a Registered Security of the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days same series and like tenor after the delivery close of business at such office or agency on (i) any Regular Record Date and before the notice opening of resignation business at such office or removalagency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, appoint a successor Depositoryand interest or Defaulted Interest, which shall as the case may be, will not be a bank payable on such Interest Payment Date or trust company having its principal office proposed date for payment, as the case may be, in respect of the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such notice, coupon when due in accordance with the resigning or removed Depository may petition any court provisions of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryIndenture.

TABLE OF CONTENTS. The Depository Promptly after the Effective Time, the Surviving Corporation shall cause to be mailed to each record holder, as of the Effective Time, of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the “Certificates”), a form of letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent) and instructions for use in effecting the surrender of the Certificates for payment of the Merger Consideration therefor. Upon surrender to the Paying Agent of a Certificate, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate, and such Certificate shall then be canceled. No interest shall be paid or accrued for the benefit of holders of the Certificates on the Merger Consideration payable in respect of the Certificates. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered or shall have established to the satisfaction of the Surviving Corporation that such Tax either has been paid or is not applicable. Until surrendered as contemplated by this Section 3.4(b), each Certificate shall be deemed at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of Effective Time to represent only the notice of resignation or removal, right to receive upon such surrender the applicable Merger Consideration as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under contemplated by this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryARTICLE III.

TABLE OF CONTENTS. The Depository may at any Indenture permits the Owner Trustee, on behalf of the Issuer, and the Indenture Trustee, with certain exceptions therein provided, to amend or waive from time be removed to time certain terms and conditions set forth in the Indenture without the consent of the Holders of the Notes. The Indenture also permits the Owner Trustee, on behalf of the Issuer, and the Indenture Trustee, with certain exceptions as therein provided, to amend or waive from time to time certain terms and conditions set forth in the Indenture with the consent of the Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class. The Indenture also permits the Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class, on behalf of the Holders of all the Notes, to waive compliance by the Corporation Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by notice the Holders of not less than 51% of the Note Balance of the Controlling Class or the Holder of this Class A-2b Note (or any one or more Predecessor Notes) shall be conclusive and binding on such Holder and on all future Holders of this Class A-2b Note and of any Class A-2b Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such removal delivered consent or waiver is made upon this Class A-2b Note. The term “Issuer”, as used in this Note, includes any successor to the DepositoryIssuer under the Indenture. The Indenture permits the Issuer, such removal under certain circumstances, to take effect upon consolidate or merge with or into another Person, subject to the appointment rights of the Indenture Trustee and the Holders of Notes under the Indenture. The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth. THIS CLASS A-2B NOTE AND THE INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). No reference herein to the Indenture, and no provision of this Note or of the Indenture, shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Class A-2b Note at the times, place and rate, and in the coin or currency, herein prescribed. Anything herein to the contrary notwithstanding, except as expressly provided in the Transaction Documents, none of U.S. Bank National Association, in its individual capacity, U.S. Bank National Association, in its individual capacity, any holder of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and beneficial interest in the Stock and Issuer, or any moneys held hereunder of their respective owners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to such successorany of them for, and shall deliver the payment of principal of or interest on this Class A-2b Note or the performance of, or omission to such successor a list perform, any of the Record Holders of all outstanding Receipts and such recordscovenants, books and other information obligations or indemnifications contained in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.the

TABLE OF CONTENTS. The Depository may at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in tendered) the name of the predecessor Depository registered holder of Shares as shown on the Share Certificates, if different from your name. If Share Certificates have been delivered or otherwise identified to the Depositary, then, prior to the physical release of Share Certificates, you must submit the serial numbers shown on the particular Share Certificates evidencing Shares to be withdrawn and an Eligible Institution must Medallion guarantee the signature on the notice of withdrawal, except in the case of Shares tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedures for book-entry transfer set forth in Section 3 — “Procedures for Accepting the Offer and Tendering Shares,” the notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares, in which case a notice of withdrawal will be effective if delivered to the Depositary by any method of delivery described in the first sentence of this paragraph. You may not rescind a withdrawal of Shares. Any Shares that you withdraw will be considered not validly tendered for purposes of the Offer, but you may tender your Shares again at any time before the Expiration Date by following any of the procedures described in Section 3 — “Procedures for Accepting the Offer and Tendering Shares.” If you tendered Shares under the Company’s 401(k) Plan by giving instructions to the Record Keeper, you must deliver updated instructions to the Record Keeper. Such instructions must provide sufficient notice in advance of the Expiration Date (and in any event not later than three (3) business days prior to the Expiration Date) to enable the Record Keeper and 401(k) Plan trustee to comply with the instructions contained therein. All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by Purchaser, in its own name as successor Depositorysole discretion, whose determination will be final and binding, subject to the dispute of such determination in a court of competent jurisdiction. None of Parent, Purchaser or any of their respective affiliates or assigns, the Depositary, the Information Agent or any other person or entity will be under any duty to give any notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.

TABLE OF CONTENTS. The Depository may at Lease whose consent, waiver or amendment is required to permit the consummation of the Transactions and the assignment or sublease of each such Lease, in every case without loss of any time be removed by premises, loss of any option to renew or expand, increase in rent, or other material change to the Corporation by notice terms and conditions of such removal delivered Lease that were effective prior to the Depository, such removal request for said consent; (iii) non-disturbance and attornment agreements in a form reasonably satisfactory to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery Purchaser from each of the notice master landlords under the subleases described in Exhibits D, E and F, and from each of resignation the master landlords’ mortgagees, if any, providing, among other things, that if Sylvan’s lease with any such landlord terminates for a reason other than a Purchaser default under its sublease (or removalif any mortgagee forecloses on the master landlord’s estate and Sylvan’s lease and/or Purchaser’s sublease is subordinate to such mortgage), then such master landlord (or mortgagee, as the case may be) agrees not to disturb Purchaser in its peaceable possession of the sublet premises for the remaining term of the sublease, appoint a successor Depositoryso long as Purchaser attorns to such party and agrees to recognize such party as its landlord in connection therewith, including paying all sublease rent thereto; (iv) the unconditional consent to the Closing and the other Transactions of the issuer of each material insurance policy whose right to consent, waiver or amendment is required, to avoid loss of insurance, to permit the consummation of the Transactions pursuant to its terms and (v) the unconditional consent to the Closing and the other Transactions of each other party to each material contract whose consent, waiver or amendment is required thereunder to permit the consummation of the Transactions, except for such consents identified on Part 5.4(c) of the Disclosure Schedule the failure of which to obtain would not materially adversely affect the Targeted Businesses or any Target Subsidiary or the ability of the Sellers or Purchaser to consummate the Transactions. All such releases and consents obtained prior to Closing shall be a bank in writing and executed counterparts thereof shall be delivered to Purchaser at or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and prior to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryClosing.

TABLE OF CONTENTS. The Depository Company may elect to make payment of any Defaulted Interest to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at any time be removed by the Corporation by notice close of business on a Special Record Date for the payment of such removal delivered Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on such Registered Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the Depositoryaggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such removal money when so deposited to take effect upon be held in trust for the appointment benefit of the Person entitled to such Defaulted Interest as in this Clause provided. Thereupon, the Company shall fix a successor Depository hereunder and its acceptance Special Record Date for the payment of such appointment as hereinafter provided. In case at any time Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the Depository acting hereunder shall resign or be removed, date of the Corporation shall, within 60 proposed payment and not less than 10 days after the delivery receipt by the Trustee of the notice of resignation or removal, as the case may be, appoint a successor Depositoryproposed payment, which notice shall be a bank or trust company having its principal office also specify to the Trustee such Special Record Date. The Trustee shall promptly notify the Company of such Special Record Date and, in the United States name and at the expense of America the Company shall cause notice of the proposed payment of such Defaulted Interest and having the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of such Registered Security (or a combined capital Predecessor Security thereof) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and surplus at the expense of the Company cause a similar notice to be published at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery once in an Authorized Newspaper of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest general circulation in the Stock and any moneys held hereunder to Borough of Manhattan, The City of New York, but such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof publication shall not be required hereundera condition precedent to the establishment of such Special Record Date. Such successor Depository may authenticate the Receipts in the name Notice of the predecessor Depository proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose name such Registered Security (or its own name as successor Depositorya Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). In case a Bearer Security is surrendered at the Office or Agency for such Security in exchange for a Registered Security after the close of business at such Office or Agency on any Special Record Date and before the opening of business at such Office or Agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Defaulted Interest and Defaulted Interest shall not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture.

TABLE OF CONTENTS. This Rights Certificate is subject to all the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of Rights, which limitations include the temporary suspension of the exercisability of such Rights under the specific circumstances set forth in the Rights Agreement. Copies of the Rights Agreement are on file at the principal executive offices of the Company. This Rights Certificate, with or without other Rights Certificates, upon surrender at the office of the Rights Agent designated for such purpose, may be exchanged for another Rights Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Preferred Shares as the Rights evidenced by the Rights Certificate or Rights Certificates surrendered shall have entitled such holder to purchase. If this Rights Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Rights Certificate or Rights Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate (a) may be redeemed by the Company at a redemption price (in cash or shares of the Company’s common stock or other securities of the Company deemed by the Company’s Board of Directors to be at least equivalent in value) of $0.001 per Right (subject to adjustment, as provided in the Rights Agreement) or (b) may be exchanged in whole or in part for shares of the Company’s common stock or other consideration as determined by the Company. The Depository Company may, but shall not be required to, issue fractions of Preferred Shares or distribute certificates that evidence fractions of Preferred Shares upon the exercise of any Right or Rights evidenced hereby. In lieu of issuing fractional shares, the Company may elect to make a cash payment as provided in the Rights Agreement for fractions of a share other than one one-thousandth (1/1000) of a share or any integral multiple thereof or to issue certificates or utilize a depository arrangement as provided in the terms of the Rights Agreement and the Preferred Shares. No holder of this Rights Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Shares or of any other securities of the Company that may at any time be removed by issuable on the Corporation by exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment meetings or other actions affecting shareholders (except as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office provided in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository Rights Agreement), or to receive dividends or subscriptions rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest exercised as provided in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating theretoRights Agreement. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof This Rights Certificate shall not be required hereunder. Such successor Depository may authenticate valid or obligatory for any purpose until it shall have been countersigned by the Receipts in the name of the predecessor Depository or its own name as successor DepositoryRights Agent.

TABLE OF CONTENTS. The Depository may at any time be removed by Amount). For the Corporation by notice avoidance of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removeddoubt, the Corporation shallforegoing sentence shall not prejudice Buyer’s right to indemnification pursuant to Section 11.1(a)(iii), within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000if applicable. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and Conopco shall deliver to Buyer a duly executed copy of each such successor a list consent obtained prior to Closing as soon as reasonably practicable after obtaining such consent. From and after Closing, until any such consent is obtained, the relevant Designated Buyer shall, unless prohibited by the relevant Contract, Authorization or Applicable Law, perform the obligations of the Record Holders relevant Seller or Company under such Contract or Authorization as agent for or sub-contractor to such Seller or Company and, without prejudice to any claim which Buyer has under Article XI hereof, indemnify each member of the Unilever Group on an after-Tax basis in respect of such performance or, if the relevant Contract, Authorization or Applicable Law prohibits the relevant Designated Buyer from so acting as agent or sub-contractor, such Seller or Company shall cooperate with Buyer in any arrangement reasonably requested by Buyer to provide, from and after the Closing, for Buyer or another Designated Buyer the benefits under any such Contract or Authorization, including the enforcement at the cost of and for the benefit of Buyer or such Designated Buyer of any and all rights thereunder of Conopco or its respective Affiliates against the other party thereto and, without prejudice to any claim Buyer has under Article XI hereof, Buyer or such Designated Buyer shall indemnify each member of the Unilever Group on an after-Tax basis in respect of all outstanding Receipts such arrangements. Without prejudice to any claim which Buyer has under Article XI, Buyer or such Designated Buyer shall indemnify Conopco or such member of the Unilever Group on an after-Tax basis for the costs and liabilities incurred by Conopco or such recordsmember of the Unilever Group in performing or enforcing any such Contract or Authorization for the benefit of Buyer or such Designated Buyer from and after the Closing. Notwithstanding the foregoing, books to the extent that a Shared Contract is a contract with a customer of both the DiverseyLever Business and the Unilever Consumer Brands Business, the parties shall, prior to seeking any such assignment, amendment or novation, discuss in good faith whether the seeking of such assignment, amendment or novation is likely to prejudice the relevant customer relationship and, if so, the parties shall discuss whether some other information arrangement can be entered into between them which will not risk such prejudice but which will confer on them similar benefits to those which they would otherwise have enjoyed in its possession relating theretorelation to such Shared Contract (including under the Agency Agreement). Any entity into In the event that the parties cannot reach agreement on the action to be taken, the relevant assignment, amendment or with which the Depository may be merged, consolidated or converted novation shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts sought in the name of the predecessor Depository or its own name as successor Depositoryaccordance with this Section 3.4(b).

TABLE OF CONTENTS. The Depository relating to such Interest Payment Date or proposed date of payment, as the case may at any time be removed by the Corporation by notice of (or, if such removal delivered coupon is so surrendered with such Bearer Security, such coupon shall be returned to the Depositoryperson so surrendering the Bearer Security), such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign interest or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removalDefaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon, when due in accordance with the provisions of this Indenture. Unless otherwise specified pursuant to Section 3.1 with respect to a series of Securities or as otherwise provided below in this Section 3.5, owners of beneficial interests in Securities of such series represented by a Security issued in global form will not be entitled to have Securities of such series registered in their names, will not receive or be entitled to receive physical delivery of Securities of such series in certificated form and will not be considered the Holders or owners thereof for any purposes hereunder. Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in certificated form in the circumstances described below, a Security in global form representing all or a portion of the Securities of a series may not be transferred or exchanged except as a whole by the Depository for such series to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a successor Depository for such series or a nominee of such successor Depository. If at any time the Depository for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depository for the Securities of such series or if at any time the Depository for the Securities of such series notifies the Company that it shall no longer be eligible under Section 3.3, the Company shall appoint a successor DepositoryDepository with respect to the Securities of such series. Unless otherwise provided as contemplated by Section 3.1, which if a successor Depository for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.1(b) (26) shall no longer be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of a bank Company Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or trust company having Securities of such series of like tenor in global form in exchange for such Security or Securities in global form. The Company may at any time in its sole discretion determine that Securities of a series issued in global form shall no longer be represented by such a Security or Securities in global form. In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal office amount equal to the principal amount of the Security or Securities of such series of like tenor in the United States of America and having a combined capital and surplus of at least $50,000,000global form in exchange for such Security or Securities in global form. If no successor specified by the Company pursuant to Section 3.1 with respect to a series of Securities, the Depository shall have been so appointed and have accepted appointment within 60 days after delivery for such series may surrender a Security in global form of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument series in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.exchange

TABLE OF CONTENTS. As soon as reasonably practicable (and in any event within seven Business Days) after the Effective Time, the Exchange Agent will mail to the Persons who were record holders of Company Stock Certificates or Company Book Entry Shares immediately prior to the Effective Time (i) a letter of transmittal, customary in form and substance, and including a provision confirming that delivery of Company Stock Certificates or transfer of Company Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Company Book Entry Shares shall pass, only upon proper delivery of such Company Stock Certificates or transfer of such Company Book Entry Shares to the Exchange Agent and (ii) instructions for use in effecting the surrender of Company Stock Certificates or transfer of Company Book Entry Shares in exchange for Merger Consideration. The Depository may at any time form and substance of such letter of transmittal and instructions shall be removed as reasonably agreed to by Parent and the Company prior to the Effective Time. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange or receipt of an “agent’s message” by the Corporation Exchange Agent in connection with the transfer of a Company Book Entry Share, together with a duly executed letter of transmittal and such other documents as may be reasonably required by notice the Exchange Agent or Parent, (A) the holder of such removal delivered Company Stock Certificate or Company Book Entry Share shall be entitled to receive in exchange therefor the DepositoryMerger Consideration that such holder has the right to receive pursuant to Section 1.6 and (B) the Company Stock Certificate so surrendered or the Company Book Entry Share so transferred shall be canceled. Until surrendered or transferred as contemplated by this Section 1.8(b), such removal to take effect upon the appointment of a successor Depository hereunder each Company Stock Certificate and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder Company Book Entry Share shall resign or be removeddeemed, the Corporation shall, within 60 days from and after the delivery of Effective Time, to represent only the notice of resignation or removal, right to receive Merger Consideration as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000contemplated by Section 1.6. If no successor Depository any Company Stock Certificate shall have been so appointed lost, stolen or destroyed, Parent or the Exchange Agent may, in its discretion and have accepted appointment within 60 days after delivery as a condition to the payment of Merger Consideration, require the owner of such noticelost, the resigning stolen or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver destroyed Company Stock Certificate to its predecessor provide an appropriate affidavit and to deliver a bond (in such sum as Parent or the Exchange Agent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring respect to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Company Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryCertificate.

TABLE OF CONTENTS. The Depository Any such adjustment made pursuant to this clause (4) shall become effective immediately prior to 9:00 a.m., New York City time, on the Adjustment Record Date for such distribution. In the event that such dividend or distribution described in this clause (4) is not so paid or made, the Conversion Rate will again be adjusted, effective as of the date the Board of Directors publicly announces its decision not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. With respect to any rights or warrants (the “rights”) that may be issued or distributed pursuant to any rights plan of the Company currently in effect or that the Company implements after the date of this First Supplemental Indenture (a “rights plan”), in lieu of any adjustment required upon conversion of the Notes into ADSs, to the extent that such rights plan is in effect upon such conversion, the Holders of Notes will receive, with respect to the ADSs (or the Ordinary Shares represented thereby) issued upon conversion, the rights described therein (whether or not the rights have separated from the ADSs (or the Ordinary Shares represented thereby) at the time of conversion), subject to the limitations set forth in and in accordance with any such rights plan; provided that in the case of the Company’s current rights plan or a future rights plan to the extent applicable, if, at the time of conversion, however, the rights have separated from the ADSs (or the Ordinary Shares represented thereby) in accordance with the provisions of the rights plan so that Holders would not be removed entitled to receive any rights in respect of the ADSs issuable upon conversion of the Notes as a result of the timing of the conversion date, the Conversion Rate shall be adjusted as if the Company distributed to all Holders of ADSs distributed securities, subject to appropriate readjustment in the event of the expiration, termination, repurchase or redemption of the rights. Any distribution of rights or warrants pursuant to a rights plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants. Other than as specified in this clause (4), there will not be any adjustment to the Conversion Rate as the result of the issuance of any rights, the distribution of separate certificates representing such rights, the exercise or redemption of such rights in accordance with any rights plan or the termination or invalidation of any rights. If the transaction that gives rise to an adjustment pursuant to this clause (4) is, however, one pursuant to which the payment of a dividend or other distribution on Ordinary Shares consists of shares of Capital Stock of any class or series of, or similar equity interest in, a Subsidiary or other business unit of the Company (a “Spin-Off”) that are, or, when issued will be, traded or listed on the NASDAQ Global Select Market, the NASDAQ Global Market, the NYSE or any other U.S. national securities exchange or market, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x (FMV0+MP0)/MP0 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the last Trading Day of the Valuation Period; Table of Contents CR1 = the Conversion Rate in effect immediately after 5:00 p.m., New York City time, on the last Trading Day of the Valuation Period; FMV0 = the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period beginning on and including the fifth Trading Day after the effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the ADSs over the Valuation Period, divided by the Corporation then applicable number of Ordinary Shares then represented by notice one ADS. Any such adjustment made pursuant to this clause (4) shall occur on the fifteenth Trading Day from, and including, the effective date of the Spin-Off. As a result, any conversion within the 15 Trading Days following the effective date of any Spin-Off shall be deemed not to have occurred until the end of such removal delivered 15 Trading Day period. For purposes of this Section 4.06(a)(4) and Sections 4.06(a)(1) and 4.06(a)(3), any dividend or distribution to the Depositorywhich this Section 4.06(a)(4) is applicable that also includes Ordinary Shares to which Section 4.06(a)(1) applies, such removal or rights or warrants to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign subscribe for, purchase or be removedconvert into Ordinary Shares to which Section 4.06(a)(3) applies (or both), the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver deemed instead to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.be:

TABLE OF CONTENTS. The Depository Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time be removed by notifying the Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Requisite Lenders shall have the right to appoint a successor. If no successor shall have been so appointed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder Requisite Lenders and its acceptance of shall have accepted such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 30 days after the delivery retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the notice of resignation or removal, as Lenders and the case may beIssuing Bank, appoint a successor Depository, Agent which shall be a bank or trust company having its principal with an office in the United States of America and New York, New York, having a combined capital and surplus of at least $50,000,000500.0 million or an Affiliate of any such bank. If no successor Depository shall have been so appointed and have accepted Upon the acceptance of any appointment within 60 days after delivery of as an Agent hereunder by such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunderbank, and thereupon such successor Depository, without any further act or deed, shall succeed to and become fully vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its predecessor benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and for all purposes not as an Agent shall be have the Depository same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CSFB and DBTCA as Co-Syndication Agents, CSFB and CGMI, as Joint Lead Arrangers and Joint Bookrunners, nor CoBank, as Documentation Agent, in such predecessor, upon payment of all sums due it and on the written request of the Corporationrespective capacities, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunderhave any obligations, duties or responsibilities, or shall duly assignincur any liabilities, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document under this Agreement or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryother Loan Document.

TABLE OF CONTENTS. The Depository may at None of the foregoing shall affect, impair or prevent the vesting of any time be removed by of the Corporation by notice of such removal delivered rights or powers granted to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter providedany Issuer or any Revolving Loan Lender hereunder. In case at furtherance and not in limitation or derogation of any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation foregoing, any action taken or removalomitted to be taken by an Issuer in good faith (and not constituting gross negligence or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, appoint a successor Depository, which shall be a bank each Issuer (i) may rely on any oral or trust company having its principal office other communication believed in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall good faith by such Issuer to have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning authorized or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act given by or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request behalf of the Corporationapplicant for a Letter of Credit, shall promptly execute (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and deliver an instrument transferring conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to such successor all rights and powers a court order, to settle or compromise any claim of such predecessor hereunderwrongful dishonor, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successoror otherwise, and shall deliver be entitled to reimbursement to the same extent as if such successor presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a list statement advising negotiation or payment, upon receipt of the Record Holders of all outstanding Receipts and such records, books and statement (even if such statement indicates that a draft or other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further actis being delivered separately), and notice thereof shall not be required hereunder. Such successor Depository liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may authenticate pay any paying or negotiating bank claiming that it rightfully honored under the Receipts in the name laws or practices of the predecessor Depository place where such bank is located; and (vi) may settle or its own name as successor Depositoryadjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

TABLE OF CONTENTS. The Depository So long as the Preferred Stock (and, following the time that a Person becomes an Acquiring Person, shares of Common Stock) issuable upon the exercise of Rights may at be listed or admitted to trading on any national securities exchange or automated quotation system, the Company shall use its best efforts to cause, from and after such time as the Rights become exercisable, all shares reserved for such issuance to be removed by the Corporation by listed or admitted for trading on such exchange or automated quotation system upon official notice of issuance upon such removal exercise. The Company covenants and agrees that it will take all such action as may be necessary to ensure that all shares of the Preferred Stock (and, following the time that a Person becomes an Acquiring Person, shares of Common Stock) delivered to the Depository, such removal to take effect upon the appointment exercise of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation Rights shall, within 60 days after at the time of delivery of the notice certificates for such (subject to payment of resignation the Purchase Price), be duly and validly authorized and issued and fully paid and nonassessable shares. The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges that may be payable in respect of the issuance or removaldelivery of the Right Certificates or of any shares of the Preferred Stock upon the exercise of Rights. The Company shall not, as the case however, be required (a) to pay any tax or charge that may be, appoint a successor Depository, which shall be a bank or trust company having its principal office payable in respect of any transfer involved in the United States transfer or delivery of America and having Right Certificates or the issuance or delivery of certificates for the Preferred Stock in a combined capital and surplus name other than that of at least $50,000,000. If no successor Depository the registered holder of the Right Certificate evidencing Rights surrendered for exercise or (b) to issue or deliver any certificates for shares of the Preferred Stock upon the exercise of any Rights until any such tax or charge shall have been so appointed and have accepted appointment within 60 days after delivery paid (any such tax or charge being payable by the holder of such noticeRight Certificate at the time of surrender) or until it has been established to the Company’s satisfaction that no such tax or charge is due. The Company shall, if legally required, (i) prepare and file, as soon as reasonably possible following the Distribution Date, a registration statement under the Securities Act with respect to the securities purchasable upon exercise of or exchangeable for the Rights on an appropriate form, (ii) cause such registration statement to become effective as soon as reasonably possible after such filing, and (iii) cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until no longer required to do so under the Securities Act with respect to securities purchasable upon exercise of or exchangeable for the Rights. The Company also shall take all such action as may be required or as is appropriate under the securities or blue sky laws of such jurisdictions as may be necessary or appropriate with respect to the securities purchasable upon the exercise of or exchangeable for the Rights. The Company may temporarily suspend, for a period not to exceed 120 days following the Distribution Date, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request exercisability of the CorporationRights in order to prepare and file such registration statement and permit it to become effective. Upon any such suspension of exercisability of Rights referred to in this paragraph, the Company shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in issue a public announcement stating that the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list exercisability of the Record Holders of all outstanding Receipts and Rights has been temporarily suspended, as well as a public announcement at such records, books and other information time as the suspension is no longer in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryeffect.

TABLE OF CONTENTS. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of, among other conditions the Minimum Condition (as defined below in Section 15 — “Conditions of the Offer”). The Offer also is subject to other customary conditions as set forth in this Offer to Purchase. See Section 15 — “Conditions of the Offer.” There is no financing condition to the Offer and the Merger. The Board of Directors of Blue Apron (the “Blue Apron Board”) unanimously (i) determined and declared that the Offer, the Merger and the other transactions contemplated by the Merger Agreement, on the terms and conditions set forth in the Merger Agreement (collectively, the “Transactions”), are advisable, and in the best interests of, Blue Apron and its stockholders, (ii) resolved that Blue Apron was authorized to enter into and is authorized to perform its obligations under the Merger Agreement, providing for the consummation of the Transactions, (iii) resolved that the Merger Agreement and the Merger will be effected as soon as practicable following the consummation of the Offer and will be governed by and effected under Section 251(h) and the other relevant provisions of the DGCL and (iv) recommended that Blue Apron’s stockholders accept the Offer and tender their Shares pursuant to the Offer. A summary of the principal terms and conditions of the Offer appears in the “Summary Term Sheet” beginning on page i of this Offer to Purchase. You should read this entire document carefully before deciding whether to tender your Shares in the Offer. NEITHER THE OFFER NOR THE MERGER HAS BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SEC OR ANY STATE SECURITIES COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF THE OFFER OR THE MERGER OR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS OFFER TO PURCHASE OR THE RELATED LETTER OF TRANSMITTAL. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL AND A CRIMINAL OFFENSE. 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Banks and Brokerage Firms Please Call: 0 (000) 000-0000 Shareholders and All Others Call Toll-Free: 0 (000) 000-0000 Via Email: xxxx@xxxxxxxxxxxxx.xxx TABLE OF CONTENTS If you wish to tender all or a portion of your Shares to Purchaser in the Offer, you must: • If you hold your Shares directly as the holder of record, surrender the certificates evidencing such Shares (the “Share Certificates”) or confirm a book-entry transfer of such Shares into the Depositary’s account at The Depository may at Trust Company (“DTC”) (such a confirmation, a “Book-Entry Confirmation”) pursuant to the procedures set forth in Section 3 — “Procedures for Accepting the Offer and Tendering Shares” and complete and sign the Letter of Transmittal (or, in the case of a book-entry transfer, deliver an Agent’s Message (as defined below) in lieu of the Letter of Transmittal) that accompanies this Offer to Purchase in accordance with the instructions set forth therein and mail or deliver the Letter of Transmittal with any time required signature guarantees and all other required documents to the Depositary (as defined below in the “Summary Term Sheet”). These materials must be removed by the Corporation by notice of such removal delivered to the DepositoryDepositary prior to the Expiration Time (as defined below). ​ • If you hold your Shares through a broker, such removal dealer, commercial bank, trust company or other nominee, request your broker, dealer, commercial bank, trust company or other nominee to take effect upon tender your Shares through The Depository Trust Company’s (“DTC”) Automated Tender Offer Program (“ATOP”) prior to the appointment Expiration Time. ​ Questions or requests for assistance may be directed to Okapi Partners LLC, the information agent for the Offer (the “Information Agent”), at the address and telephone number set forth on the back cover of this Offer to Purchase. Additional copies of this Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer may be obtained at no cost to stockholders from the Information Agent. Additionally, copies of this Offer to Purchase, the related Letter of Transmittal and any other materials related to the Offer are available free of charge at xxx.xxx.xxx. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance. TABLE OF CONTENTS​ ​ SUMMARY TERM SHEET ​ ​ ​ ​ ii ​ ​ ​ INTRODUCTION ​ ​ ​ ​ 1 ​ ​ ​ THE TENDER OFFER ​ ​ ​ ​ 3 ​ ​ ​ 1. Terms of the Offer ​ ​ ​ ​ ​ 3 ​ ​ ​ 2. Acceptance for Payment and Payment for Shares ​ ​ ​ ​ ​ 5 ​ ​ ​ 3. Procedures for Accepting the Offer and Tendering Shares ​ ​ ​ ​ ​ 6 ​ ​ ​ 4. Withdrawal Rights ​ ​ ​ ​ ​ 8 ​ ​ ​ 5. Material U.S. Federal Income Tax Consequences ​ ​ ​ ​ ​ 9 ​ ​ ​ 6. Price Range of Shares; Dividends on the Shares ​ ​ ​ ​ ​ 11 ​ ​ ​ 7. Certain Information Concerning Blue Apron ​ ​ ​ ​ ​ 12 ​ ​ ​ 8. Certain Information Concerning Wonder and Purchaser ​ ​ ​ ​ ​ 12 ​ ​ ​ 9. Source and Amount of Funds ​ ​ ​ ​ ​ 14 ​ ​ ​ 10. Background of the Offer; Past Contacts or Negotiations with Blue Apron ​ ​ ​ ​ ​ 14 ​ ​ ​ 11. The Merger Agreement; Other Agreements ​ ​ ​ ​ ​ 17 ​ ​ ​ 12. Purpose of the Offer; Plans for Blue Apron ​ ​ ​ ​ ​ 35 ​ ​ ​ 13. Certain Effects of the Offer ​ ​ ​ ​ ​ 36 ​ ​ ​ 14. Dividends and Distributions ​ ​ ​ ​ ​ 37 ​ ​ ​ 15. Conditions of the Offer ​ ​ ​ ​ ​ 37 ​ ​ ​ 16. Certain Legal Matters; Regulatory Approvals ​ ​ ​ ​ ​ 39 ​ ​ ​ 17. Appraisal Rights ​ ​ ​ ​ ​ 40 ​ ​ ​ 18. Fees and Expenses ​ ​ ​ ​ ​ 41 ​ ​ ​ 19. Miscellaneous ​ ​ ​ ​ ​ 42 ​ ​ ​ SCHEDULE I ​ ​ ​ ​ ​ ​ ​ ​ Directors and Executive Officers of Purchaser and Wonder ​ ​ Sch I-1 ​ TABLE OF CONTENTS​ The information contained in this Summary Term Sheet is a successor Depository hereunder summary only and its acceptance is not meant to be a substitute for the more detailed description and information contained in the remainder of this Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer. You are urged to read carefully this Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer in their entirety. This Summary Term Sheet includes cross-references to other sections of this Offer to Purchase where you will find more complete descriptions of the topics mentioned below. The information concerning Blue Apron contained in this Summary Term Sheet and elsewhere in this Offer to Purchase has been provided by Blue Apron to Wonder and Purchaser or has been taken from, or is based upon, publicly available documents or records of Blue Apron on file with the SEC or other public sources at the time of the Offer. Wonder and Purchaser have not independently verified the accuracy and completeness of such appointment as hereinafter providedinformation. In case at any time ​ Securities Sought ​ ​ Subject to certain conditions, including the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery satisfaction of the notice Minimum Condition (as described in Section 15 — “Conditions of resignation or removalthe Offer”), as all of the case may beissued and outstanding shares of Class A common stock, appoint a successor Depositorypar value $0.0001 per share, of Blue Apron, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with constitute all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute issued and deliver an instrument transferring to such successor all rights and powers outstanding shares of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list capital stock of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating theretoBlue Apron. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.​

TABLE OF CONTENTS. The Depository may evidencing such Shares or a Book-Entry Conformation of a book-entry transfer of such Shares into the Depositary’s account at DTC pursuant to the procedures set forth in this Section 3, (ii) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, with any time be removed required signature guarantees or, in the case of a book-entry transfer, and Agent’s Message in lieu of the Letter of Transmittal and (iii) any other documents required by the Corporation Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending on when Share certificates or Book-Entry Confirmations with respect to Shares are actually received by notice the Depositary. Under no circumstances will we pay interest on the purchase price of Shares, regardless of any extension of the Offer or any delay in making such payment. The tender of Shares pursuant to any one of the procedures described above will constitute the tendering stockholder’s acceptance of the Offer, as well as the tendering stockholder’s representation and warranty that such stockholder has the full power and authority to tender and assign the Shares tendered, as specified in the Letter of Transmittal. Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering stockholder and us upon the terms and subject to the conditions of the Offer. Appointment as Proxy. By executing and delivering a Letter of Transmittal as set forth above (or, in the case of a book-entry transfer, by delivery of an Agent’s Message in lieu of a Letter of Transmittal), the tendering stockholder irrevocably appoints our designees as such stockholder’s attorneys-in-fact and proxies, each with full power of substitution, to the full extent of such removal delivered stockholder’s rights with respect to the Depository, Shares tendered by such removal stockholder and accepted for payment by us and with respect to take effect upon the appointment of a successor Depository hereunder any and its acceptance all other Shares or other securities issued or issuable in respect of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign Shares on or be removed, the Corporation shall, within 60 days after the delivery date of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000Merger Agreement. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of All such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights proxies and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and attorney will be considered coupled with an interest in the Stock tendered Shares. Such appointment is effective when, and only to the extent that, we accept for payment Shares tendered by such stockholder as provided herein. Upon the effectiveness of such appointment, all prior powers of attorney, proxies and consents given by such stockholder will be revoked, and no subsequent powers of attorney, proxies and consents may be given (and, if given, will not be deemed effective). Our designees will, with respect to the Shares or other securities and rights for which the appointment is effective, be empowered to exercise all voting and other rights of such stockholder as they, in their sole discretion, may deem proper at any moneys held hereunder annual, special, adjourned or postponed meeting of the stockholders of MGF, by written consent in lieu of any such meeting or otherwise. We reserve the right to require that, in order for Shares to be deemed validly tendered immediately upon our payment for such Shares, we must be able to exercise full voting, consent and other rights to the extent permitted under applicable law with respect to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books Shares and other information in its possession relating thereto. Any entity into securities, including voting at any meeting of MGF stockholders or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of executing a written consent concerning any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorymatter.

TABLE OF CONTENTS. The Depository may at [No transfer of a Certificate of this Class shall be made unless such transfer is made pursuant to an effective registration statement under the Securities Act and any time applicable state securities laws or is exempt from the registration requirements under said Act and such laws. In the event that a transfer is to be removed by made in reliance upon an exemption from the Corporation by notice of Securities Act and such removal delivered laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the DepositoryTrustee in writing the facts surrounding the transfer. In the event that such a transfer is to be made within two years from the date of the initial issuance of Certificates pursuant hereto, such removal to take effect upon there shall also be delivered (except in the appointment case of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery transfer pursuant to Rule 144A of the notice Securities Act) to the Trustee an Opinion of resignation or removal, as Counsel that such transfer may be made pursuant to an exemption from the case may be, appoint a successor DepositorySecurities Act and such state securities laws, which shall be a bank or trust company having its principal office in the United States Opinion of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Counsel shall not be required hereunderobtained at the expense of the Trustee, the Seller, the Master Servicer or the Depositor. Such successor Depository The Holder hereof desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee and the Depositor against any liability that may authenticate result if the Receipts transfer is not so exempt or is not made in accordance with such federal and state laws.] [No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation [letter] from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Trustee, to the effect that such transferee is not an employee benefit plan subject to Section 406 of ERISA or Section 4975 of the Code, nor a person acting on behalf of any such plan, which representation letter shall not be an expense of the Trustee or the Master Servicer, (ii) if the purchaser is an insurance company, a representation that the purchaser is an insurance company which is purchasing such Certificates with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the predecessor Depository Code (or comparable provisions of any subsequent enactments), or a trustee of any such plan or any other person acting on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and the Master Servicer to the effect that the purchase or holding of such Certificate will not result in prohibited transactions under Section 406 of ERISA and Section 4975 of the Code and will not subject the Trustee, the Depositor or the Master Servicer to any obligation in addition to those undertaken in the Agreement, which Opinion of Counsel shall not be an expense of the Trustee or the Master Servicer. [Such representation shall be deemed to have been made to the Trustee by the Transferee’s acceptance of a Certificate of this Class and by a beneficial owner’s acceptance of its own name interest in a Certificate of this Class.] Notwithstanding anything else to the contrary herein, any purported transfer of a Certificate of this Class to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the Trustee as successor Depositorydescribed above shall be void and of no effect.] Reference is hereby made to the further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the Trustee. Table of Contents

TABLE OF CONTENTS. The Depository may at Bankruptcy Code), foreclosure or other realization upon, or any time other Enforcement Action with respect to, any Collateral and all assets or amounts received on account of the Collateral or the secured claims of the Priority Lien Secured Parties under the Priority Lien Documents in any Insolvency or Liquidation Proceeding or otherwise in connection with the enforcement of remedies and the proceeds of the foregoing (whether through an Enforcement Action or during an Insolvency or Liquidation Proceeding or otherwise in connection with the enforcement of remedies), the proceeds of any insurance policy required under any Priority Lien Document or otherwise covering the Collateral, any condemnation proceeds with respect to the Collateral, and any other amounts required to be removed by the Corporation by notice of such removal delivered to the DepositoryCollateral Trustee by any Priority Lien Secured Party or Priority Lien Representative pursuant to any other provision of this Agreement and for application in accordance with this Section 3.4(a) (subject in all cases to Section 3.10) (collectively, “Proceeds”), shall be delivered by the parties hereto to the Collateral Trustee who will apply such removal Proceeds in the following order of application (and each Priority Lien Representative shall provide a notice to take effect upon the appointment Collateral Trustee identifying the amounts which are payable to the applicable Series of Priority Lien Debt for which it acts as Priority Lien Representative pursuant to this Section 3.4(a) and the Collateral Trustee shall be entitled to rely exclusively on such notice without independent inquiry): FIRST, to the payment of all amounts payable under this Agreement on account of the Collateral Trustee’s fees and expenses and any reasonable legal fees and expenses, out-of-pocket fees, costs and expenses or other liabilities of any kind incurred by the Collateral Trustee or any co-trustee or agent of the Collateral Trustee in connection with any Security Document, including but not limited to amounts necessary to provide for the fees and expenses of the Collateral Trustee in maintaining and disposing of the Collateral, including, but not limited to, indemnification payments and reimbursements (collectively, the “Collateral Trustee’s Fees and Expenses”); SECOND, prior to the Discharge of First-Out Obligations (other than with respect to Excess First-Out Obligations), to the First-Out Representative for application to the First-Out Representative Fees and Expenses, including any reasonable legal fees and expenses, out-of-pocket fees, costs and expenses or other liabilities of any kind incurred by the First-Out Representative (other than Reclamation Obligations) in connection with any First-Out Document, including, but not limited to, indemnification payments and reimbursements; THIRD, prior to the Discharge of First-Out Obligations, to the First-Out Representative such an amount sufficient to pay or satisfy in full in cash all outstanding First-Out Obligations and otherwise provide for the Discharge of First-Out Obligations (other than any Excess First-Out Obligations; FOURTH, after the Discharge of First-Out Obligations (other than any than Excess First-Out Obligations), equally and ratably to the First Lien Representatives for application to the payment of all outstanding First Lien Debt and any other First Lien Obligations (which will include the Senior Credit Agreement) that are then due and payable in such order as may be provided in the applicable First Lien Documents in an amount sufficient to pay in full in cash all such outstanding First Lien Debt and all other First Lien Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the applicable First Lien Documents, even if such interest is not enforceable, allowable or allowed as a successor Depository hereunder claim in such proceeding (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in Table of Contents the First Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and its acceptance including the discharge or cash collateralization (in an amount equal to at least the percentage of the aggregate undrawn amount required for release of Liens under the terms of the First Lien Documents) of all outstanding letters of credit and bankers’ acceptances or the backstop thereof pursuant to arrangements reasonably satisfactory to the relevant issuing bank, if any, constituting First Lien Obligations and the termination, expiration or other collateral arrangements in respect of Hedging Obligations and Cash Management Obligations that are reasonably satisfactory to the applicable Hedge Bank and the applicable Cash Management Bank); FIFTH, to the First-Out Representative for application to the payment of any Excess First-Out Obligations until the Discharge of First-Out Obligations in respect of such appointment as hereinafter provided. In case at Excess First-Out Obligations; and SIXTH, subject to any time the Depository acting hereunder shall resign or be removedapplicable Intercreditor Agreement, the Corporation shall, within 60 days any surplus remaining after the delivery Discharge of Priority Lien Obligations will be paid to the notice of resignation Company or removalthe applicable Grantor, as the case may be, appoint its successors or assigns, or to such other Persons as may be entitled to such amounts under applicable law or as a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for may direct. Notwithstanding the appointment foregoing, if any Series of a successor Depository. Every successor Depository shall execute and deliver to Priority Lien Debt has released its predecessor and to the Corporation an instrument Lien on any Collateral as described below in writing accepting its appointment hereunderSection 4.4, and thereupon then such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations Series of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock Priority Lien Debt and any moneys held hereunder to such successor, and shall deliver to such successor a list related Priority Lien Obligations of the Record Holders that Series of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Priority Lien Debt thereafter shall not be required hereunder. Such successor Depository may authenticate the Receipts entitled to share in the name proceeds of any Collateral so released by that Series of Priority Lien Debt. For the predecessor Depository or its own name as successor Depositoryavoidance of doubt, the Collateral Trustee shall only apply Proceeds in accordance with this Section 3.4 to the extent that such Proceeds are actually so received by the Collateral Trustee.

TABLE OF CONTENTS. The Depository Any corporation into which an Authenticating Agent may at be merged or converted or with which it may be consolidated, or any time be removed by the Corporation by notice of corporation resulting from any merger, conversion or consolidation to which such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which Authenticating Agent shall be a bank party, or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and corporation succeeding to the Corporation corporate agency or corporate trust business of an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deedAuthenticating Agent, shall become fully vested with all the rightscontinue to be an Authenticating Agent, powers, duties and obligations of its predecessor and for all purposes provided such corporation shall be the Depository otherwise eligible under this AgreementSection, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document paper or further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent for any further actseries of Securities may at any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall promptly give written notice thereof shall not be required hereunder. Such successor Depository may authenticate of such appointment to all Holders of Securities of the Receipts series with respect to which such Authenticating Agent will serve in the name manner set forth in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor Depository or hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its own name as successor Depositoryservices under this Section.

TABLE OF CONTENTS. What are the conditions to the Offer? The Depository Offer is conditioned upon the satisfaction or waiver of the following conditions (the “Offer Conditions”): • the Antitrust Law Conditions; • the Minimum Condition; • the Governmental Entity Condition; • the accuracy of the representations and warranties made by Xxxxxxxxx in the Merger Agreement, subject to the materiality and other qualifications set forth in the Merger Agreement (the “Representations Condition”); • the performance by Xxxxxxxxx in all material respects of all obligations to be performed by it under the Merger Agreement (the “Covenants Condition”); • the Material Adverse Effect Condition; • Xxxxxx having received a certificate from Xxxxxxxxx immediately prior to the Expiration Date (as it may at be extended) signed on its behalf by Xxxxxxxxx’x chairman of the board, chief executive officer, or certain other officers of Xxxxxxxxx to the effect that the Representations Condition and the Covenants Condition have been satisfied; and • the Termination Condition. The foregoing conditions are in addition to, and not a limitation of, the rights of Parent and Purchaser to extend, terminate, amend and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement. The foregoing conditions are for the sole benefit of Parent and Purchaser and, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, may be waived by Purchaser, in whole or in part (other than, except with the consent of Xxxxxxxxx, the Minimum Condition, the Antitrust Law Conditions and the Governmental Entity Condition). However, without the consent of Xxxxxxxxx, Purchaser cannot (i) waive the Minimum Condition, the Antitrust Law Conditions or the Governmental Entity Condition or (ii) make any time change in the terms of or conditions to the Offer that (A) changes the form of consideration to be removed paid in the Offer, (B) except as contemplated by the Corporation Merger Agreement, decreases the Offer Price or number of Shares sought in the Offer, (C) extends the Offer, other than in a manner contemplated by notice the Merger Agreement, (D) imposes conditions on the Offer other than the Offer Conditions, (E) modifies the Offer Conditions or (F) amends any other term or condition of such removal delivered the Offer in any manner that is adverse to the Depository, such removal to take effect upon the appointment holders of a successor Depository hereunder and its acceptance of such appointment as hereinafter providedShares. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery See Section 15 — “Conditions of the notice of resignation or removal, Offer.” If you hold your Shares directly as the registered owner, you can tender your Shares in the Offer by (i) delivering the certificates representing your Shares, together with a completed and signed Letter of Transmittal and any other documents required by the Letter of Transmittal, to the Depositary or (ii) following the procedure for book-entry transfer set forth in Section 3 of this Offer to Purchase, in each case no later than the Expiration Date. If you are the registered owner but your stock certificate is not available or you cannot deliver it to the Depositary before the Offer expires, you may behave a limited amount of additional time by having a broker, appoint a successor Depository, which shall be a bank or trust company having its principal office in other fiduciary that is an eligible institution guarantee that the United States of America and having a combined capital and surplus of at least $50,000,000missing items will be received by the Depositary within three Nasdaq trading days. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticeFor the tender to be valid, however, the resigning or removed Depository may petition any court Depositary must receive the missing items within that three trading-day period. The Letter of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver Transmittal is enclosed with this Offer to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryPurchase.

TABLE OF CONTENTS. 11. The Depository Merger Agreement; Other Agreements The following summary of the material provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified in their entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Schedule TO and is incorporated herein by reference. For a complete understanding of the Merger Agreement, you are encouraged to read the full text of the Merger Agreement. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 7 — “Certain Information Concerning the Company.” Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The summary description has been included in this Offer to Purchase to provide you with information regarding the terms of the Merger Agreement and is not intended to modify or supplement any time rights or obligations of the parties under the Merger Agreement or any factual information about Parent, Purchaser or the Company or the Transactions contained in public reports filed by Parent or the Company with the SEC. Such information can be removed found elsewhere in this Offer to Purchase. The Merger Agreement has been filed as an exhibit to the Current Report on Form 8-K filed by the Corporation Company with the SEC on August 3, 2021. The Merger Agreement and the summary of its terms contained in the Current Report on Form 8-K filed by notice the Company with the SEC on August 3, 2021, are incorporated herein by reference as required by applicable SEC regulations and solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants, which were made only for the purposes of such removal delivered agreement and as of specific dates, were made solely for the benefit of the parties to the DepositoryMerger Agreement (and, in the case of certain covenants relating to indemnification of directors and officers, for the benefit of directors and officers of the Company designated as third-party beneficiaries), and are intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In addition, such removal representations, warranties and covenants may have been qualified by certain disclosures in confidential disclosure schedules delivered by the Company to take effect upon Parent and Purchaser in connection with the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery signing of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Merger Agreement, and such predecessormay apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, upon payment or other investors in, the Company. The holders of all sums due it Shares and other investors should not rely on the written request representations, warranties and covenants or any descriptions thereof as characterizations of the Corporationactual state of facts or conditions of the Company, shall promptly execute Parent, Purchaser or any of their respective subsidiaries or affiliates. Accordingly, the representations and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest warranties contained in the Stock Merger Agreement and summarized in this Section 11 should not be relied on by any moneys held hereunder persons as characterizations of the actual state of facts and circumstances of the Company at the time they were made and the information in the Merger Agreement should be considered in conjunction with the entirety of the factual disclosure about the Company in the Company’s public reports filed with the SEC. Information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Offer, the Transactions, the Company, Parent, Purchaser, their respective affiliates and their respective businesses that are contained in, or incorporated by reference into, the Tender Offer Statement on Schedule TO and related exhibits, including this Offer to such successorPurchase, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such recordsCompany’s Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on August 16, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged2021, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts as well as in the name of the predecessor Depository or its own name as successor DepositoryCompany’s other public filings.

TABLE OF CONTENTS. The Depository may at We have agreed in the Merger Agreement that, without the prior written consent of O’Charley’s, we will not (i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares subject to or sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the conditions described in this Offer to Purchase (see Section 15 – “Certain Conditions of the Offer”), (iv) waive or amend the Minimum Condition, (v) amend or supplement any time be removed of the other conditions described in this Offer to Purchase or any other term of the Offer in a manner adverse to the holders of the Shares, other than Parent, the Purchaser and any of their respective affiliates, or (vi) extend or otherwise change the Expiration Date except as required or permitted by the Corporation by notice Merger Agreement. If we extend the Offer, are delayed in our acceptance for payment of such removal delivered or payment (whether before or after our acceptance for payment) for Shares or are unable to accept Shares for payment pursuant to the DepositoryOffer for any reason, such removal then, without prejudice to take effect upon our rights under the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedOffer, the Corporation shalldepositary for the Offer (the “Depositary”) may retain tendered Shares on our behalf, within 60 days and those Shares may not be withdrawn except to the extent that tendering shareholders are entitled to withdrawal rights as described herein under Section 4 – “Withdrawal Rights.” However, our ability to delay the payment for Shares that we have accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which requires us to pay the consideration offered or return the securities deposited by or on behalf of shareholders promptly after the delivery termination or withdrawal of the notice Offer. Except as described above, and subject to the applicable rules and regulations of resignation the SEC, we expressly reserve the right to waive any condition to the Offer (other than the Minimum Condition, which may not be waived without O’Charley’s prior written consent), increase the Offer Price and/or modify the other terms and conditions of the Offer. Any extension, delay, termination or removalamendment of the Offer will be followed promptly by public announcement of any extension, as delay, termination or amendment, and that announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which we may bechoose to make any public announcement, appoint we currently intend to make announcements regarding the Offer by issuing a successor Depository, which shall be press release and making any appropriate filing with the SEC. If we make a bank or trust company having its principal office material change in the United States terms of America the Offer or the information concerning the Offer or if we waive a material condition of the Offer, we will disseminate additional tender offer materials and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, extend the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor Offer if and to the Corporation extent required by Rules 14d-4(d)(1), 14d-6(c) and 14e-1 under the Exchange Act. The minimum period during which an instrument offer must remain open following material changes in writing accepting its appointment hereunderthe terms of the Offer or information concerning the Offer, other than a change in price or a change in percentage of securities sought, will depend upon the facts and circumstances, including the relative materiality of the terms or information changes. In the SEC’s view, an offer should remain open for a minimum of five business days from the date the material change is first published, sent or given to shareholders, and thereupon such successor Depositorywith respect to a change in price or a change in percentage of securities sought, without a minimum ten business day period generally is required to allow for adequate dissemination to shareholders and investor response. If, on or before the Expiration Date, we increase the consideration being paid for Shares accepted for payment in the Offer, that increased consideration will be paid to all shareholders whose Shares are purchased in the Offer, whether or not those Shares were tendered before the announcement of the increase in consideration. We expressly reserve the right, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, not to accept for payment any further act Shares if, at the expiration of the Offer, any of the conditions to the Offer have not been satisfied or deedwaived or upon the occurrence of any of the events described in Section 15 – “Certain Conditions of the Offer.” Under certain circumstances, shall become fully vested with we may terminate the Merger Agreement and the Offer. After the expiration of the Offer and acceptance for payment of the Shares validly tendered in, and not validly withdrawn from, the Offer, we may decide pursuant to the Merger Agreement to commence a subsequent offering period. A subsequent offering period, if included, will be an additional period beginning on the next Table of Contents business day following the Expiration Date, during which any remaining shareholders may tender, but not withdraw, their Shares and receive the Offer Price. If we provide a subsequent offering period, we will accept for payment and promptly pay for all Shares that were validly tendered during the initial offering period. During a subsequent offering period, tendering shareholders will not have withdrawal rights, powersand we will accept and pay for any Shares validly tendered during the subsequent offering period. Other than as may be required by the terms of the Merger Agreement, duties and obligations we do not currently intend to provide a subsequent offering period for the Offer, although we reserve the right to do so. If we elect to provide or extend any subsequent offering period, a public announcement of that provision or extension will be made no later than 9:00 a.m., New York City time, on the next business day following the Expiration Date or date of termination of any prior subsequent offering period. Under the Merger Agreement, if we do not own at least 90% of the outstanding Shares (on a fully-diluted basis, as defined in the Merger Agreement) after our acceptance for payment of Shares pursuant to the Offer, Parent has the option (the “Top-Up Option”), subject to certain limitations, to purchase from O’Charley’s up to that number of newly-issued Shares sufficient to cause Parent (together with any of its predecessor subsidiaries, including us) to own one Share more than 90% of the Shares then outstanding (on a fully-diluted basis, as defined in the Merger Agreement) at a price per Share equal to the Offer Price. O’Charley’s has provided us with O’Charley’s shareholder list and security position listings for all purposes shall the purpose of disseminating the Offer to holders of Shares. This Offer to Purchase and the related Letter of Transmittal, together with the Solicitation/Recommendation Statement on Schedule 14D-9, will be mailed to record holders of Shares whose names appear on O’Charley’s shareholder list and will be furnished, for subsequent transmittal to beneficial owners of Shares, to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the Depository under this Agreementnames of whose nominees, and such predecessor, upon payment of all sums due it and appear on the written request of the Corporationshareholder list or, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunderif applicable, shall duly assign, transfer and deliver all right, title and interest who are listed as participants in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryclearing agency’s security position listing.

TABLE OF CONTENTS. The Depository may at any time be removed by It is the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery intention of the notice parties to this Agreement that the conveyance of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all Seller’s right, title and interest in the Stock Pool Receivables, all Related Security with respect to such Pool Receivables and all Collections with respect to such Pool Receivables to the Administrator on behalf of the Purchasers pursuant to this Agreement shall constitute a purchase and sale and not a pledge, and such purchase and sale of such Pool Receivables, Related Security and Collections to the Administrator on behalf of the Purchasers, hereunder shall be treated as a sale for all purposes (other than for income tax purposes). If, notwithstanding the foregoing, the conveyance of Pool Receivables, Related Security and Collections to the Administrator on behalf of the Purchasers, is characterized by any moneys held Governmental Authority, bankruptcy trustee or any other Person as a pledge or other security for indebtedness, the parties intend that Seller shall be deemed hereunder to such successorhave granted, and shall deliver Seller does hereby grant, to such successor a list the Administrator, on behalf of the Record Holders Purchaser Groups, to secure all of the Seller’s obligations (monetary or otherwise) under this Agreement and the other Transaction Documents to which it is a party, whether now or hereafter existing or arising, due or to become due, direct or indirect, absolute or contingent, a security interest in all of the Seller’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising: (i) each Pool Receivable; (ii) all Related Security; (iii) all Collections; (iv) the Collection Accounts, the Concentration Account and, in each case, all amounts on deposit therein; (v) all rights (but none of the obligations) of the Seller under the Purchase and Sale Agreement; and (vi) all products and proceeds of, and all amounts received or receivable under, any or all of the foregoing (collectively, the “Pool Assets”). In connection with each Purchase and Reinvestment and the grant of the security interest in the Pool Assets set forth in this Section 1.2(e), the Seller hereby authorizes the filing by the Administrator of all outstanding Receipts applicable UCC financing statements and such recordsamendments thereto in all jurisdictions necessary to perfect (and to continue the perfection of) the security interest created hereby, books and other information in its possession relating including, without limitation, any financing statement containing a collateral description of “all assets” or language similar thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor Each of the Depository without parties hereto intends that no Purchase hereunder shall constitute, or be deemed to constitute, a “security” under U.S. securities laws or within the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name meaning of the predecessor Depository or its own name as successor DepositoryUCC.

TABLE OF CONTENTS. The Depository may at any time be removed by Holders of a majority in aggregate principal amount of the Corporation by notice Debt Securities of such removal delivered to series at the Depositorytime outstanding may, on behalf of the Holders of all of such removal to take effect upon the appointment Debt Securities, waive any past Default or Event of a successor Depository Default hereunder and its acceptance consequences except (i) a default in the payment of the principal of (including the Redemption Price upon redemption pursuant to Article 3 hereof), premium, if any, or interest on such Debt Securities, unless such default has been cured and the Issuer or the Guarantor has deposited with the Trustee all required payments of the principal of, premium, if any, and interest on such Debt Securities (provided, however, that the Holders of a majority in aggregate principal amount of such appointment as hereinafter providedDebt Securities then outstanding may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration) or (ii) a default in respect of a covenant or provisions hereof which under Article 9 hereof cannot be modified or amended without the consent of the Holders of all such Debt Securities then outstanding or each such Debt Security affected thereby. In case at Upon any time the Depository acting hereunder shall resign or be removedsuch waiver, the Corporation shallIssuer, within 60 days after the delivery Trustee and the Holders of the notice Debt Securities of resignation or removal, as the case may be, appoint a successor Depository, which such series shall be a bank restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or trust company having its principal office in the United States other Default or Event of America and having a combined capital and surplus Default or impair any right consequent thereon. Whenever any Default or Event of at least $50,000,000. If no successor Depository Default hereunder shall have been so appointed and have accepted appointment within 60 days after delivery waived as permitted by this Section 6.07, said Default or Event of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository Default shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers Debt Securities of such predecessor hereunder, series and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall duly assign, transfer and deliver all right, title and interest in the Stock and extend to any moneys held hereunder to such successor, and shall deliver to such successor a list subsequent or other Default or Event of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into Default or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of impair any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryright consequent thereon.

TABLE OF CONTENTS. Depositary’s Agent nor any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its gross negligence or willful misconduct. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity to such party against all expense and liability be furnished as often as required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company shall be liable to any party hereto for any action or any failure to act by it in reliance upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit or any holder of a Receipt. The Depository Depositary, any Depositary’s Agent, any Registrar and the Company may at each rely and shall each be protected in acting upon any time written notice, request, direction or other document believed by it to be removed genuine and to have been signed or presented by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign party or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office parties specified in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof The Depositary shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name responsible for any failure to carry out any authorization to vote any of the predecessor Depository shares of Stock or for the manner or effect of any such vote made, as long as such action or inaction is in good faith and does not result from the gross negligence or willful misconduct of the Depositary. The Depositary undertakes and shall cause any Registrar to undertake, to perform such duties and only such duties as are specifically set forth in this Agreement using its reasonable best efforts and in good faith. The parties hereto acknowledge that no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar or against the Company with respect to the Depositary and any Registrar. The Depositary will indemnify the Company against any liability which may arise out of acts performed or omitted by the Depositary or any Depositary’s Agent due to its or their gross negligence or bad faith. The Depositary, any Depositary’s Agent, any Registrar and the Company may own name and deal in any class of securities of the Company and its affiliates and in Receipts subject to the provisions of applicable law. The Depositary may also act as successor Depositorytransfer agent or registrar of any of the securities of the Company and its affiliates.

TABLE OF CONTENTS. The Depository may at any time be removed by the Corporation by notice of such removal delivered As provided in and subject to the Depository, such removal to take effect upon provisions of the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedIndenture, the Corporation shall, within 60 days after Holder of this Security shall not have the delivery of right to institute any proceeding with respect to the notice of resignation Indenture or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository receiver or trustee or for any other remedy thereunder, unless such Holder shall execute and deliver to its predecessor and have previously given the Trustee written notice of a continuing Event of Default with respect to the Corporation an Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in writing accepting its appointment hereunderform satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon such successor Depositoryone or more new Securities of this series and of like tenor, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor authorized denominations and for all purposes the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Depository under Company or the Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this AgreementSecurity for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted agent shall be affected by notice to the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorycontrary.

TABLE OF CONTENTS. The Depository may at any time be removed by liability for the Corporation by notice obligations of such removal delivered each of them. Each Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, as a co-debtor, joint and several liability with each other Borrower, with respect to the Depository, such removal to take effect upon the appointment payment and performance of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery all of the notice Obligations, it being the intention of resignation or removal, as the case may be, appoint a successor Depository, which parties hereto that all Obligations shall be a bank the joint and several obligations of all of the Borrowers without preferences or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000distinction among them. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of such Obligations in writing accepting its appointment hereunderaccordance with the terms thereof, and thereupon then in each such successor Depositoryevent each other Borrower will make such payment with respect to, without or perform, such Obligations. A breach hereof or Default or Event of Default hereunder as to any further act single Borrower shall constitute a breach, Default or deed, shall become fully vested with Event of Default as to all the rights, powers, duties and obligations Borrowers. Each Borrower hereby waives notice of acceptance of its predecessor joint and for all purposes shall be several liability, notice of the Depository Loans made or Letters of Credit issued under this Agreement, notice of the occurrence of any Default or Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent, the Collateral Agent or the Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, all demands, notices and such predecessorother formalities of every kind in connection with this Agreement, upon except for any demands, notices and other formalities expressly required under the terms of this Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent, the Collateral Agent or the Lenders at any time or times in respect of any default (including any Default or Event of Default) by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all sums due it other indulgences whatsoever by the Administrative Agent, the Collateral Agent or the Lenders in respect of any of the obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of such obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the written request part of the CorporationAdministrative Agent, shall promptly execute and deliver an instrument transferring the Collateral Agent or the Lenders, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable Laws or regulations thereunder, which might, but for the provisions of this Section 2.17, afford grounds for terminating, discharging or relieving such successor all rights and powers Borrower, in whole or in part, from any of its Obligations under this Section 2.17, it being the intention of each Borrower that, so long as any of the Obligations remain unsatisfied, the Obligations of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Borrower under this Section 2.17 shall not be required hereunderdischarged except by performance and then only to the extent of such performance. Such successor Depository may authenticate The joint and several liability of the Receipts Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name name, membership, constitution or place of formation of any Borrower. With respect to any Borrower’s Obligations arising as a result of the predecessor Depository joint and several liability of the Borrowers hereunder with respect to Loans or its own name other extensions of credit made to any of the other Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full (other than contingent indemnification obligations that are not yet due and payable or as successor Depositoryto which no claim has been asserted) and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender.

TABLE OF CONTENTS. The Depository In connection with any Existing Notes Offer and any Existing Notes Redemption, Parent may at any time select one or more dealer managers, information agents, depositaries and other agents, in each case as shall be removed reasonably acceptable to the Company, to provide assistance in connection therewith and the Company shall, and shall cause its Subsidiaries to, enter into customary agreements with such parties so selected and shall use commercially reasonable efforts to timely furnish the dealer manager(s), information agent(s), depositaries and other agents with such executed officers’ certificates, legal opinions and other documentation reasonably requested by the Corporation by notice Parent, dealer manager(s), information agent(s), depositaries and other agents in connection with an Existing Notes Offer; provided that neither the Company nor any of its Subsidiaries shall be required to indemnify, defend or hold harmless, or pay the fees or reimburse the costs and expenses of, any such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositoryparty, which indemnification, fee and reimbursement obligations shall be borne by Parent pursuant to separate agreements with such parties to which neither the Company nor any of its Subsidiaries shall be a bank party or trust company having have any obligations under, in each case, that are effective prior to the Closing. Parent shall reimburse the Company and its principal office Subsidiaries for all of their reasonable and documented costs and expenses incurred in connection with any Existing Notes Offers or any Existing Notes Redemptions promptly following the United States incurrence thereof. Parent shall indemnify, defend and hold harmless the Company, its Subsidiaries and each of America their respective Affiliates from and having a combined capital against any and surplus of at least $50,000,000. If no successor Depository shall have been so appointed all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and have accepted appointment within 60 days after delivery of penalties suffered or incurred by any such noticePerson, or to which any such Person may become subject, that arise out of, or is in any way in connection with, the resigning Existing Notes Offers, Existing Notes Redemptions, or removed Depository may petition any court actions taken or not taken by the Company, or taken at the request of competent jurisdiction for Parent, pursuant to this Section 6.15 or the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and transactions contemplated hereby, except to the Corporation an instrument in writing accepting its appointment hereunderextent such losses result from the gross negligence, willful misconduct, bad faith and/or breach of this Agreement by the foregoing indemnified persons. The foregoing reimbursement and thereupon such successor Depository, without indemnification shall survive any further act or deed, shall become fully vested with all the rights, powers, duties and obligations termination of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.

TABLE OF CONTENTS. See Section 13 — “The Depository Transaction Documents — The Merger Agreement — Stockholders Meeting; Board Recommendation.” You have until 12:00 midnight, New York City time, at the end of Wednesday, September 28, 2011, to decide whether to tender your Shares in the Offer, unless the Offer is extended as described below. See Section 1— “Terms of the Offer.” If you own your Shares through The BNA 401(k) Plan, you will have to complete the Letter of Instruction to instruct the 401(k) Plan Trustees to tender your Shares, which may take additional time; therefore you should instruct the 401(k) Plan Trustees at least one business day prior to the Expiration Time. In addition, if we decide to provide a subsequent offering period for the Offer, as described below under “Introduction” to this Offer to Purchase, you will have an additional opportunity to tender your Shares. We will pay for any Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the expiration of the Offer subject only to (i) there being validly tendered and not properly withdrawn prior to the expiration of the Offer that number of Class A Shares which represents a majority of the Class A Shares outstanding on a fully diluted basis as of the expiration of the Offer (the “Minimum Condition”) and (ii) the prior satisfaction or waiver of the other conditions to the Offer set forth in Section 15 — “Conditions of the Offer.” We may delay the payment for any validly tendered Shares if by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement), (i) the Minimum Condition has not been satisfied or (ii) at any time on or after the date of the Merger Agreement and prior to the acceptance of Shares, any of the other conditions to the Offer set forth in Section 15 — “Conditions of the Offer” occur and are continuing. We will pay for your validly tendered and not properly withdrawn Shares by depositing the purchase price with the BNY Mellon Shareowner Services (the “Depositary”), which will act as your agent for the purpose of receiving payments from us and transmitting such payments to you. In all cases, payment for tendered Shares will be removed made only after timely receipt by the Corporation by notice Depositary of a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof) and any other required documents for such removal delivered shares. Payment of the Offer Price with respect to Shares which are reflected on the Company’s books and records as being pledged to the Depository, such removal Company’s credit union (or other secured party) will be made directly to take effect upon the appointment of credit union (or other secured party). Such payment may result in a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time payment to the Depository acting hereunder shall resign credit union (or be removed, other secured party) greater than the Corporation shall, within 60 days after the delivery amount of the notice underlying obligation that is secured by the pledge. A holder of resignation Shares will have to look to the credit union (or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction other secured party) for the appointment repayment of a successor Depositoryany amounts in excess of the underlying obligation. Every successor Depository shall execute and deliver to its predecessor and Purchaser will not be responsible for any such overpayment. Payment to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon Company’s credit union (or other secured party) will discharge the obligation of Brass Acquisition Corp. to pay for such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryShares.

TABLE OF CONTENTS. The Depository may at any time be removed Borrower shall submit a Letter of Credit Request to the applicable Issuing Bank selected by the Corporation by notice of such removal delivered Borrower (with a copy to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case Administrative Agent) at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery least three Business Days in advance of the notice requested date of resignation amendment, extension or removalrenewal (or such shorter period as is acceptable to the applicable Issuing Bank), as identifying the case may beLetter of Credit to be amended, appoint a successor Depositoryextended or renewed, and specifying the proposed date (which shall be a bank Business Day) and other details of the amendment, extension or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000renewal. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery requested by the applicable Issuing Bank in connection with any request for any Letter of such noticeCredit, the resigning Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or removed Depository may petition other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any court Letter of competent jurisdiction for Credit, the appointment terms and conditions of a successor Depositorythis Agreement shall control. Every successor Depository No Letter of Credit, letter of credit application or other document entered into by the Borrower with any Issuing Bank relating to any Letter of Credit shall execute and deliver to its predecessor contain any representation or warranty, covenant or event of default not set forth in this Agreement (and to the Corporation an instrument in writing accepting its appointment hereunderextent any such representation or warranty, covenant or event of default is inconsistent herewith, the same shall be rendered null and void (or reformed automatically without further action by any Person to conform to the terms of this Agreement), and thereupon all representations and warranties, covenants and events of default set forth therein shall contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this Agreement (and, to the extent any such successor Depositoryrepresentation or warranty, without any further act covenant or deedevent of default is inconsistent herewith, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes same shall be deemed to automatically incorporate the Depository under this Agreementapplicable standards, qualifications, thresholds and such predecessorexceptions set forth herein without action by any Person). No Letter of Credit may be issued, upon payment of all sums due it amended, extended or renewed unless (and, with respect to clauses (i)(A) and (ii) below, on the written request issuance, amendment, extension or renewal of each Letter of Credit the CorporationBorrower shall be deemed to represent and warrant that), shall promptly execute and deliver an instrument transferring after giving effect to such successor all rights and powers issuance, amendment, extension, or renewal (i) (A) the LC Exposure does not exceed the Letter of such predecessor hereunderCredit Sublimit, shall duly assign(B) with respect to any Letter of Credit issued by CS, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders aggregate undrawn amount (plus unpaid LC Disbursements) of all outstanding Receipts Letters of Credit issued by CS does not exceed $5,000,000, (C) with respect to any Letter of Credit to be issued by Citizens, the aggregate undrawn amount (plus unpaid LC Disbursements) of all outstanding Letters of Credit issued by Citizens does not exceed $2,500,000 and such records(D) with respect to any Letter of Credit to be issued by DBNY, books and other information in its possession relating thereto. Any entity into or with which the Depository may be mergedaggregate undrawn amount (plus unpaid LC Disbursements) of all outstanding Letters of Credit issued by DBNY does not exceed $2,500,000, consolidated or converted shall be (ii) (A) the successor aggregate amount of the Depository without Initial Revolving Credit Exposure shall not exceed the execution or filing aggregate amount of the Initial Revolving Credit Commitments then in effect, (B) the aggregate amount of the Additional Revolving Credit Exposure attributable to any Class of Additional Revolving Credit Commitments does not exceed the aggregate amount of the Additional Revolving Credit Commitments of such Class then in effect and (C) if such Letter of Credit has a term that extends beyond the Maturity Date applicable to the Revolving Credit Commitments of any document or Class, the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such Maturity Date and (iii) unless the relevant Issuing Bank is able to issue Commercial Letters of Credit, any further act, such Letter of Credit is a Standby Letter of Credit (it being understood and notice thereof shall not agreed that CS and DBNY will only be required hereunder. Such successor Depository may authenticate the Receipts in the name to issue Standby Letters of the predecessor Depository or its own name as successor DepositoryCredit).

TABLE OF CONTENTS. The Depository may at any time Guaranteed Delivery. A stockholder who desires to tender Shares pursuant to the Offer and whose certificates for Shares are not immediately available and cannot be removed by the Corporation by notice of such removal delivered to the Depository prior to the expiration of the Offer, or who cannot complete the procedure for book-entry transfer prior to the expiration of the Offer, or who cannot deliver all required documents to the Depository prior to the expiration of the Offer, may tender such Shares by satisfying all of the requirements set forth below: • such tender is made by or through an Eligible Institution (as defined below); ​ • the Depository receives by mail or overnight courier, prior to the Expiration Time, a properly completed and duly executed Notice of Guaranteed Delivery in the form Merger Sub has provided with this Offer to Purchase, including (where required) a signature guarantee by an Eligible Institution (as defined below) in the form set forth in the Notice of Guaranteed Delivery; and ​ • the certificates for all tendered Shares, in proper form for transfer (or confirmation of book-entry transfer of the shares into the Depository’s account at DTC), such removal to take effect upon together with a properly completed and duly executed Letter of Transmittal, or an Agent’s Message in the appointment case of a successor book-entry transfer, and any required signature guarantees and other documents required by the Letter of Transmittal, are “received” by the Depository hereunder (as such terms are defined in Section 251(h)(6) of the DGCL) within one NYSE trading day following the Expiration Time. ​ Stockholders may contact the Information Agent or their broker, dealer, commercial bank, trust company or other nominee for assistance. The contact information for the Information Agent is on the back cover page of this Offer to Purchase. Shares tendered by a Notice of Guaranteed Delivery will not be deemed validly tendered for purposes of satisfying the Minimum Condition unless and its acceptance until Shares underlying such Notice of Guaranteed Delivery are delivered to the Depository within one NYSE trading day following the Expiration Time. Signature Guarantees for Shares. No signature guarantee is required on the Letter of Transmittal (i) if the Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Section 3, includes any participant in DTC’s systems whose name appears on a security position listing as the owner of the Shares) of the Shares tendered therewith, unless such appointment holder or holders have completed either the box entitled “Special Delivery Instructions” or the box entitled “Special Payment Instructions” on the Letter of Transmittal or (ii) if the Shares are tendered for the account of a broker, dealer, commercial bank, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program or a broker, dealer, commercial bank, credit union, savings association or other entity that is also an “eligible guarantor institution,” as hereinafter providedthe term is defined in Rule 17Ad-15 under the Exchange Act (each an “Eligible Institution” and collectively “Eligible Institutions”). In case at any time the Depository acting hereunder shall resign or all other cases, all signatures on a Letter of Transmittal must be removed, the Corporation shall, within 60 days after the delivery guaranteed by an Eligible Institution. See Instruction 1 of the notice Letter of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000Transmittal. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts Share Certificate is registered in the name of a person or persons other than the predecessor signers of the Letter of Transmittal, or if payment is to be made or delivered to, or a Share Certificate not accepted for payment or not tendered is to be issued in, the name(s) of a person or persons other than the registered holder(s), then the Share Certificate must be endorsed or accompanied by appropriate duly executed stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear on the Share Certificate, with the signature(s) on such Share Certificate or stock powers guaranteed by an Eligible Institution as provided in the Letter of Transmittal. See Instructions 1 and 5 of the Letter of Transmittal. Notwithstanding any other provision of this Offer, payment for the Shares accepted for payment pursuant to the Offer will in all cases only be made after timely receipt by the Depository of (i) Share Certificates or its own name a Book-Entry Confirmation of a book-entry transfer of such Shares into the Depository’s account at DTC pursuant to the procedures set forth in this Section 3, (ii) in the case of Share Certificates, the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, and any other documents required by the Letter of Transmittal or (iii) in the case of a book-entry transfer, an TABLE OF CONTENTS Agent’s Message in lieu of the Letter of Transmittal and such other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when the Share Certificates and Letter of Transmittal, or Book-Entry Confirmations and Agent’s Message, in each case, with respect to Shares are actually received by the Depository. Tender Constitutes Binding Agreement. The tender of Shares pursuant to any one of the procedures described above will constitute the tendering stockholder’s acceptance of the Offer, as successor Depositorywell as the tendering stockholder’s representation and warranty that such stockholder has the full power and authority to tender and assign the Shares tendered, as specified in the Letter of Transmittal. Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering stockholder and us on the terms and subject to the conditions of the Offer.

TABLE OF CONTENTS. The Depository Notwithstanding anything herein to the contrary, the Credit Documents may at be amended to (i) add syndication or documentation agents and make customary changes and references related thereto and (ii) if applicable, add or modify “parallel debt” language in any time jurisdiction in favor of the Collateral Agent or Collateral Trustee or add Collateral Agents, in each case under clauses (i) and (ii), with the consent of only the Borrower and the Administrative Agent, and in the case of clause (ii), the Collateral Agent. Notwithstanding anything in this Agreement (including, without limitation, this Section 13.1) or any other Credit Document to the contrary, (i) this Agreement and the other Credit Documents may be removed amended to effect an incremental facility, refinancing facility or extension facility pursuant to Section 2.14 (and the Administrative Agent and the Borrower may effect (and instruct the Collateral Representative to effect) such amendments to this Agreement and the other Credit Documents without the consent of any other party as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the terms of any such incremental facility, refinancing facility or extension facility); (ii) no Lender consent is required to effect any amendment or supplement to the Collateral Trust Agreement (and the Administrative Agent shall instruct the Collateral Representative to effect such amendment or supplement) or other intercreditor agreement permitted under this Agreement that is for the purpose of adding the holders of any Indebtedness as expressly contemplated by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery terms of the notice of resignation Collateral Trust Agreement or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository other intercreditor agreement permitted under this Agreement, and as applicable (it being understood that any such predecessoramendment or supplement may make such other changes to the Collateral Trust Agreement or applicable intercreditor agreement as, upon payment of all sums due it and on in the written request good faith determination of the CorporationAdministrative Agent in consultation with the Borrower, are required to effectuate the foregoing; provided that such other changes are not adverse, in any material respect, to the interests of the Lenders taken as a whole); provided, further, that no such agreement shall amend, modify or otherwise directly and adversely affect the rights or duties of the Administrative Agent hereunder or under any other Credit Document without the prior written consent of the Administrative Agent; (iii) any provision of this Agreement or any other Credit Document (including, for the avoidance of doubt, any exhibit, schedule or other attachment to any Credit Document) may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent (or, if applicable, the Collateral Representative, at the direction of the Administrative Agent) to (x) cure any ambiguity, omission, mistake, defect or inconsistency (as reasonably determined by the Administrative Agent and the Borrower) and (y) effect administrative changes of a technical or immaterial nature (as reasonably determined by the Administrative Agent and the Borrower); (iv) guarantees, collateral documents and related documents executed by the Credit Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with any other Credit Document, entered into, amended, supplemented or waived, without the consent of any other Person, by the applicable Credit Party or Credit Parties and the Administrative Agent or the Collateral Agent in its or their respective sole discretion if applicable (or the Collateral Representative, at the direction of the Administrative Agent), (A) to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Bank Parties, (B) as required by local law or advice of counsel to give effect to, or protect any security interest for the benefit of the Secured Bank Parties, in any property or so that the security interests therein comply with applicable requirements of law, (C) to cure ambiguities, omissions, mistakes or defects (as reasonably determined by the Administrative Agent and the Borrower) or to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Credit Documents or (D) to provide for the termination of the Collateral Trust Agreement and related arrangements (including the continuation of the Liens securing the Obligations); and (v) the Credit Parties, the Collateral Agent and Collateral Representative, without the consent of any other Secured Bank Party, shall promptly execute be permitted to enter into amendments and/or supplements to the Collateral Trust Agreement and deliver an instrument transferring any Security Documents in order to (i) include customary provisions permitting the Collateral Representative to appoint sub-collateral agents or representatives to act with respect to Collateral matters thereunder in its stead (including the Collateral Agent and sub-collateral agent with control over the Term C Loan Collateral Accounts pursuant to the applicable account control agreements) and (ii) expand the indemnification Table of Contents provisions contained therein to provide that holders of Additional First Lien Debt (as defined in the Collateral Trust Agreement) indemnify the Collateral Agent, in its capacity as Controlling Priority Lien Representative (as defined in the Collateral Trust Agreement) and/or the Collateral Trustee, on a pro rata basis with the Lenders. Notwithstanding anything in this Agreement or any Security Document to the contrary, the Administrative Agent may, in its sole discretion, grant extensions of time (and direct the Collateral Representative to grant such extensions) for the satisfaction of any of the requirements under Sections 9.11, 9.12 and 9.14 or any Security Documents in respect of any particular Collateral or any particular Subsidiary if it determines that the satisfaction thereof with respect to such successor all rights Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdings, the Borrower and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder Restricted Subsidiaries by the time or times at which it would otherwise be required to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document satisfied under this Agreement or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositorySecurity Document.

TABLE OF CONTENTS. The Depository may pursuant to the Outside Date Termination Right, at any time be removed by the Corporation by notice final expiration date of the Offer, the Antitrust Condition and the Legal Restraint Condition have been satisfied, but the Minimum Tender Condition has not been satisfied and (D) within 12 months after such termination, Dermira either (1) consummates a Company Takeover Proposal or (2) Dermira enters into a definitive agreement with respect to a Company Takeover Proposal that (x) is subsequently consummated or (y) was publicly proposed or announced or became publicly known prior to the termination of such removal delivered agreement (for these purposes, the references to 20% in the definition of Company Takeover Proposal above will be deemed references to 50% instead). In the event the Termination Fee is paid to Lilly in accordance with the terms of the Merger Agreement, the Termination Fee shall constitute the sole and exclusive remedy of Lilly and Purchaser against Dermira and its current, former or future stockholders and representatives for any loss suffered as a result of the failure of the Transactions to be consummated, and none of Dermira or its current, former or future stockholders or representatives shall have any further liability or obligation relating to or arising out of the Merger Agreement or the Transactions. Acceptance by Xxxxx of the Termination Fee shall constitute acceptance by Xxxxx of the validity of any termination of the Merger Agreement pursuant to the Depository, such removal to take effect upon the appointment of Superior Proposal Termination Right. Upon a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery valid termination of the Merger Agreement other than pursuant to the Superior Proposal Termination Right and which termination would also give rise to a payment of the Termination Fee under the terms of the Merger Agreement, if prior to payment of the Termination Fee to Xxxxx, Xxxxx provides irrevocable written notice of resignation or removalto Dermira that it does not wish to receive the Termination Fee, as then Dermira shall have no further obligation to pay the case may be, appoint a successor Depository, which Termination Fee under any circumstances thereafter and Lilly shall be a bank or trust company having entitled to exercise its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository rights under this Agreement, and such predecessor, upon payment of all sums due it and on the written request Section 8.02 of the Corporation, shall promptly execute Merger Agreement to pursue any claim against Dermira for a willful and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list material breach of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryMerger Agreement by Xxxxxxx.

TABLE OF CONTENTS. The Depository may at This Right Certificate shall not be valid or obligatory for any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository purpose until it shall have been so appointed countersigned by an authorized signatory of the Rights Agent. WITNESS the facsimile signature of the proper officers of the Company and have accepted appointment within 60 days after delivery its corporate seal. Dated as of: THE PEPSI BOTTLING GROUP, INC., Name: Title: Name: Title: Date of countersignature: MELLON INVESTOR SERVICES LLC, as Rights Agent, Authorized Signatory Table of Contents To the Rights Agent: The undersigned hereby irrevocably elects to exercise Rights represented by this Right Certificate to purchase the Preferred Shares (or other shares) issuable upon the exercise of such noticeRights and requests that certificates for such shares be issued in the name of: Please insert social security or other identifying number If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and delivered to: Please insert social security or other identifying number Dated: , ____________________________ Signature Signature Guaranteed: Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the resigning Stock Exchanges Medallion Program or removed Depository may petition any court of competent jurisdiction for the appointment New York Stock Exchange, Inc. Medallion Signature Program. The undersigned hereby certifies that (1) the Rights evidenced by this Right Certificate are not being exercised by or on behalf of a successor Depository. Every successor Depository shall execute person who is or was an Acquiring Person or an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement) and deliver to its predecessor (2) after due inquiry and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request best knowledge of the Corporationundersigned, shall promptly execute the undersigned did not acquire the Rights evidenced by this Right Certificate from any person who is or was an Acquiring Person or an Affiliate or Associate thereof. Table of Contents Dated: ______________________, ____ ____________________________ Signature Signature Guaranteed: Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program. Table of Contents FOR VALUE RECEIVED _______________________________ hereby sells, assigns and deliver an instrument transferring to such successor all rights and powers of such predecessor hereundertransfer unto ______________________________________________ this Right Certificate, shall duly assign, transfer and deliver together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ______________ Attorney, to transfer the within Right Certificate on the books of the within-named Corporation, with full power of substitution. Dated: ____________, ____ _________________________________ Signature Signature Guaranteed: Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program. The undersigned hereby certifies that (1) the Rights evidenced by this Right Certificate are not being sold, assigned or transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement), (2) this Right Certificate is not being sold, assigned or transferred to or on behalf of any such Acquiring Person, Affiliate or Associate and any moneys held hereunder (3) after inquiry and to such successor, and shall deliver to such successor a list the best knowledge of the undersigned, the undersigned did not acquire the Rights evidenced by this Right Certificate from any Person who is or was an Acquiring Person or an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement). _________________________________ Signature Table of Contents The signature on the foregoing Form of Election to Purchase or Form of Assignment must correspond to the name as written upon the face of this Right Certificate in every particular, without alteration or enlargement or any change whatsoever. Table of Contents RIGHTS BENEFICIALLY OWNED BY ANY ACQUIRING PERSONS OR THEIR AFFILIATES OR ASSOCIATES AND BY ANY SUBSEQUENT HOLDER OF SUCH RIGHTS ARE NULL AND VOID AND NONTRANSFERABLE. On May 18, 2009, the Board of Directors (the “Board”) of THE PEPSI BOTTLING GROUP, INC., a Delaware corporation (the “Company”), declared a dividend of one right (the “Rights”) for each outstanding share of Common Stock, par value $0.01 per share, of the Company (the “Common Shares”) and each share of Class B Common Stock, par value $0.01 per share of the Company (the “Class B Common Shares”). The Rights will be issued to the holders of record of Common Shares and Class B Common Shares outstanding at May 28, 2009 (the “ Record Holders Date”) and with respect to Common Shares and Class B Common Shares issued thereafter until the Distribution Date (as defined below). Each Right, when it becomes exercisable as described below, will entitle the registered holder to purchase from the Company one one-thousandth (1/1,000th) of all outstanding Receipts a share of Series A Preferred Stock, par value $0.01 per share, of the Company (the “Preferred Shares”) at a price of $100.00 (the “Purchase Price”). The description and such recordsterms of the Rights are set forth in a Rights Agreement dated as of May 18, books and other information in its possession relating thereto. Any entity into or with which the Depository 2009 as it may be mergedamended from time to time (the “Rights Agreement”), consolidated or converted shall be between the successor of Company and Mellon Investor Services LLC, a New Jersey limited liability company, as Rights Agent (the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository“Rights Agent”).

TABLE OF CONTENTS. The Depository may If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by this Section 10, such indemnifying party agrees that it shall be removed liable for any settlement of the nature contemplated by this Section 10 effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. If the indemnification provided for in this Section 10 is unavailable or insufficient for any reason whatsoever to an indemnified party in respect of any Damages referred to herein, then an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Damages (i) in such proportion as is appropriate to reflect the relative benefits received by the Corporation Company on the one hand, and the Manager on the other hand, from the offering and sale of the Securities or (ii) if the allocation provided by notice clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative and several fault of the Company on the one hand, and the Manager on the other hand, in connection with the statements or omissions that resulted in such removal delivered Damages as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Manager, on the other hand, in connection with the applicable offering of Securities, shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company, on the one hand, bear to the Depositorytotal commissions received by the Manager in connection with the applicable offering of Securities, such removal to take effect upon on the appointment other hand. The relative fault of the Company on the one hand, and the Manager on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a successor Depository hereunder material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or by the Manager on the other hand and its acceptance the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution pursuant to this Section 10 was determined by a pro rata allocation (even if the Manager were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the Damages referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such appointment as hereinafter providedindemnified party in connection with investigating or defending any such action or claim. In case at any time Notwithstanding the Depository acting hereunder shall resign or be removedprovisions of this Section 10, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Manager shall not be required hereunder. Such successor Depository may authenticate the Receipts to contribute any amount in the name excess of the predecessor Depository or its own name as successor Depositoryamount of the commissions received by it in connection with the Securities sold by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

TABLE OF CONTENTS. The Depository may at Notwithstanding any time other provision of this Offer, payment for Shares accepted for payment pursuant to the Offer will in all cases only be removed made after timely receipt by the Corporation by notice Depositary of (i) certificates evidencing such Shares or a Book-Entry Confirmation of a book-entry transfer of such removal delivered Shares into the Depositary’s account at DTC pursuant to the Depositoryprocedures set forth in this Section 3, (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer or a tender through DTC’s ATOP, an Agent’s Message in lieu of the Letter of Transmittal) and (iii) any other documents required by the Letter of Transmittal or the Depositary, in each case prior to the Expiration Time. Accordingly, tendering stockholders may be paid at different times depending upon when the Share Certificates and Letter of Transmittal, or Book-Entry Confirmations and Agent’s Message, in each case, with respect to Shares that are actually received by the Depositary. THE METHOD OF DELIVERY OF THE SHARES (OR SHARE CERTIFICATES, IF ANY), THE LETTER OF TRANSMITTAL, THE AGENT’S MESSAGE AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. DELIVERY OF THE SHARES (OR SHARE CERTIFICATES, IF ANY), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS WILL BE DEEMED MADE, AND RISK OF LOSS THEREOF WILL PASS, ONLY WHEN THEY ARE ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER OF SHARES, BY BOOK-ENTRY CONFIRMATION WITH RESPECT TO SUCH SHARES). IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT THE SHARE CERTIFICATES (IF ANY), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY PRIOR TO THE EXPIRATION TIME. Tender Constitutes Binding Agreement. The tender of Shares pursuant to any of the procedures described above will constitute the tendering stockholder’s acceptance of the Offer, as well as the tendering stockholder’s representation and warranty that such removal stockholder has the full power and authority to take effect tender and assign the Shares tendered, as specified in the Letter of Transmittal (or, in the case of a book-entry transfer, an Agent’s Message). Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering stockholder and us upon the appointment of a successor Depository hereunder terms and its acceptance of such appointment as hereinafter provided. In case at any time subject to the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery conditions of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryOffer.

TABLE OF CONTENTS. The Depository may at Interests on the Company’s or any time be removed of its Subsidiaries’ ability to meet their respective obligations, including under any Financing Document, or to satisfy and make their planned capital and other expenditures or satisfy any related obligations, or (3) could, in the judgment of the Board, constitute a fraudulent conveyance or transfer by the Corporation by notice Company or a Subsidiary thereof or render the Company or a Subsidiary thereof insolvent under applicable law or violate limitations in applicable corporate law on repurchases of stock or payment of dividends or distributions. If Interests which the Company has the right or obligation to purchase on any date exceed the total amount permitted to be purchased on such removal delivered date pursuant to the Depository, such removal to take effect upon preceding sentence (the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed“Maximum Amount”), the Corporation shall, within 60 days after the delivery Company shall purchase on such date only that number of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and Interests up to the Corporation an instrument in writing accepting its appointment hereunder, Maximum Amount (if any) (and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunderor permitted to purchase more than the Maximum Amount) in such amounts and in such priorities as the Board shall in good faith determine. Such successor Depository may authenticate Notwithstanding anything to the Receipts contrary contained in this Agreement, if the name Company is unable to make any payment when due to any Management Member under this Agreement by reason of this Section 12.4(c), the Company shall have the option to either (i) make such payment at the earliest practicable date permitted under this Section 12.4(c) and any such payment shall accrue simple interest (or if such payment is accruing interest at such time, shall continue to accrue interest) at a rate per annum of 5% from the date such payment is due and owing to the date such payment is made; provided that all payments of interest accrued hereunder shall be paid only at the date of payment by the Company for the Interests being purchased or (ii) pay the purchase price for such Interests with a subordinated note which shall accrue simple interest at a rate per annum of 5%, which is fully subordinated in right of payment and exercise of remedies to the lenders’ rights under the Financing Documents and the maturity date of which is 30 days after the latest maturity date on any debt of the predecessor Depository Company or any of its own name Subsidiaries which is outstanding (or reasonably expected to become outstanding) as successor Depositoryof the date such subordinated note is issued.

TABLE OF CONTENTS. The Depository may at any time (c) No dividends or other distributions declared or made with respect to Organovo Common Stock with a record date after the Effective Time shall be removed by the Corporation by notice of such removal delivered paid to the Depositoryholder of any unsurrendered Buyer Stock Certificate with respect to the Organovo Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Buyer Stock Certificate or an affidavit of loss or destruction in lieu thereof in accordance with this Section 1.8 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such removal dividends and distributions, without interest). (d) Any portion of the Exchange Fund that remains undistributed to take effect upon holders of Buyer Stock Certificates as of the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 date 180 days after the delivery Closing Date shall be delivered to Organovo upon demand, and any holders of Buyer Stock Certificates who have not theretofore surrendered their Buyer Stock Certificates in accordance with this Section 1.8 shall thereafter look only to Organovo for satisfaction of their claims for Organovo Common Stock, cash in lieu of fractional shares of Organovo Common Stock and any dividends or distributions with respect to shares of Organovo Common Stock. (e) Each of the notice Parties and the Exchange Agent shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any holder of resignation any Buyer Stock Certificate or removalany other Person such amounts as are required to be deducted or withheld from such consideration under the Code or under any other applicable Legal Requirement and shall be entitled to request any reasonably appropriate Tax forms, including IRS Form W-9 (or the appropriate IRS Form W-8, as applicable), from any recipient of payments hereunder. To the case may beextent such amounts are so deducted or withheld, appoint a successor Depositoryand remitted to the appropriate taxing authority in accordance with applicable Law, which such amounts shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. (f) No party to this Agreement shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring liable to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing holder of any document Buyer Stock Certificate or to any further actother Person with respect to any shares of Organovo Common Stock (or dividends or distributions with respect thereto) or for any cash amounts delivered to any public official pursuant to any applicable abandoned property law, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository escheat law or its own name as successor Depositorysimilar Legal Requirement.

TABLE OF CONTENTS. The Depository may at (j) Neither Buyer nor any time be removed Buyer Subsidiary has made, changed or revoked any material Tax election, filed any material amendment to any Tax Return, adopted or changed any accounting method in respect of Taxes, changed any annual Tax accounting period, entered into any Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement (other than commercial Contracts entered into in the Ordinary Course of Business the principal subject matter of which is not Taxes) entered into any closing agreement with respect to any Tax, settled or compromised any claim, notice, audit report or assessment in respect of material Taxes, applied for or entered into any ruling from any Tax authority with respect to Taxes, surrendered any right to claim a material Tax refund, or consented to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; (k) Neither Buyer nor any Buyer Subsidiary has commenced or settled any Legal Proceeding; (l) Neither Buyer nor any Buyer Subsidiary has entered into any material transaction outside the Ordinary Course of Business; (m) Neither Buyer nor any Buyer Subsidiary has acquired any material assets nor sold, leased or otherwise irrevocably disposed of any of its material assets or properties, nor has any Encumbrance been granted with respect to such assets or properties, except for Encumbrances of immaterial assets in the Ordinary Course of Business consistent with past practices; (n) there has been no entry into, amendment or termination of any Buyer Material Contract; (o) there has been no (i) material change in pricing or royalties or other payments set or charged by the Corporation Buyer or any Buyer Subsidiary to its customers or licensees, (ii) agreement by notice of such removal delivered Buyer or any Buyer Subsidiary to the Depositorychange pricing or royalties or other payments set or charged by persons who have licensed Intellectual Property to Buyer or any Buyer Subsidiary, such removal or (iii) material change in pricing or royalties or other payments set or charged by persons who have licensed Intellectual Property to Buyer or any Buyer Subsidiary; and (p) Neither Buyer nor any Buyer Subsidiary has negotiated, agreed or committed to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as actions referred to in clauses “(c)” through “(o)” above (other than negotiations between the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver Parties to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under enter into this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository).

TABLE OF CONTENTS. The Depository may at (d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any time rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. (e) Each of the Paying Agent, Parent, Purchaser, and the Surviving Corporation shall be removed by entitled to deduct and withhold from any cash amounts payable pursuant to this Agreement such amounts as it is required to deduct or withhold therefrom under applicable Tax Legal Requirements; provided, however, that before making any such deduction or withholding, Purchaser shall use commercially reasonable efforts to provide to the Corporation by Company notice of any applicable payor’s intention to make such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign deduction or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositorywithholding, which notice shall be a bank or trust company having its principal office in include the United States authority, basis and method of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction calculation for the appointment proposed deduction or withholding, and Purchaser shall use commercially reasonable efforts to provide such notice within a commercially reasonable period of a successor Depository. Every successor Depository shall time before such deduction or withholding is required in order for the Company to obtain reduction of or relief from such deduction or withholding from the applicable Governmental Body or execute and deliver to its predecessor or file with such Governmental Body or Purchaser such affidavits, certificates and other documents to afford to the Corporation an instrument in writing accepting Company and its appointment hereunderstockholders reduction of or relief from such deduction or withholding, except, no such notice shall be required with respect to payments to current or former employees of the Company or any predecessor of the Company with respect to Company Options or any options to acquire capital stock of any predecessor of the Company. To the extent that such amounts are so deducted and withheld, each such payor shall take all action as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body, and thereupon such successor Depository, without any further act or deed, amounts so remitted shall become fully vested with all the rights, powers, duties and obligations of its predecessor and be treated for all purposes shall be the Depository under this AgreementAgreement as having been paid to the Person to whom such amounts would otherwise have been paid. (f) If any Certificate shall have been lost, and such predecessorstolen or destroyed, upon payment the making of all sums due an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it and on with respect to such Certificate (which shall not exceed the written request Merger Consideration payable with respect to such Certificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the CorporationShares formerly represented by such Certificate, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorycontemplated by this Section 2.

TABLE OF CONTENTS. Certificates to the Policy Provider if all of the holders of the Class __-__ and Class __-__ Certificateholders release the Policy Provider from all of its obligations under the Policies with respect to such Class __-__ and Class __-__ Certificates (and return or cause the return of such Policies to the Policy Provider); provided, further, that such holder may not refuse such sale so long as (x) all Policy Provider Amounts have not been paid in full and (y) sixteen months have passed from the occurrence of the initial Triggering Event. The Depository may at purchase price with respect to the Certificates and the Class __-__ Certificates shall be equal to the Pool Balance of the Certificates, together with accrued and unpaid interest thereon to the date of such purchase, plus Break Amount, if any, and including any time other amounts then due and payable to the Certificateholders under this Agreement, the Intercreditor Agreement, the Escrow Agreement or any Financing Document or on or in respect of the Certificates plus the amount payable in connection with the purchase of the Class __-__ Certificates pursuant to Section 6.01(b) of the Other Pass Through Trust Agreement for the Class __-__ Certificates; provided, however, that (i) if such purchase occurs after the record date specified in Section _____ of the Escrow Agreement relating to the distribution of unused Deposits and accrued and unpaid interest thereunder, such purchase price shall be removed reduced by the Corporation by notice aggregate amount of unused Deposits and interest to be distributed under the Escrow Agreement (which deducted amounts shall remain distributable to, and may be retained by, the Certificateholder as of such removal delivered Record Date) and (ii) if such purchase occurs after a Record Date, such purchase price shall be reduced by the amount to be distributed hereunder on the related Distribution Date (which deducted amounts shall remain distributable to, and may be retained by, the Certificateholder as of such Record Date); provided, further, that no such purchase of Certificates shall be effective unless the purchaser(s) shall certify to the DepositoryTrustee that contemporaneously with such purchase, such removal purchaser(s) is purchasing, pursuant to take effect upon the appointment terms of a successor Depository hereunder this Agreement all of the Certificates and pursuant to the Other Pass Through Trust Agreement relating to the Class __-__ Certificates, all of the Class __-__ Certificates. Each payment of the purchase price of the Certificates referred to in the first sentence hereof shall be made to an account or accounts designated by the Trustee and relevant Other Trustee, as applicable, and each such purchase shall be subject to the terms of this Section 6.01(b). Each Certificateholder agrees by its acceptance of its Certificate that it will, subject to Section 3.04 hereof, upon payment from such appointment as hereinafter provided. In case at any time Class __ Certificateholder(s) or the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removalPolicy Provider, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office of the purchase price set forth in the United States first sentence of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticethis paragraph, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunderforthwith sell, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver convey to the purchaser(s) thereof (without recourse, representation or warranty of any kind except for its own acts), all of the right, title, interest and obligation of such Certificateholder in this Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facilities, the Policy, the Financing Documents and all Certificates and Escrow Receipts held by such Certificateholder (excluding all right, title and interest under any of the foregoing to the extent such right, title or interest is with respect to an obligation not then due and payable as respects any action or inaction or state of affairs occurring prior to such sale) and the purchaser shall assume all of such Certificateholder's obligations under this Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facilities, the Policy, the Financing Documents and all such Certificates and Escrow Receipts. The Certificates will be deemed to be purchased on the date payment of the purchase price is made notwithstanding the failure of the Certificateholders to deliver any Certificates (whether in the Stock form of Definitive Certificates or beneficial interests in Global Certificates) and, upon such a purchase, (i) the only rights of the Certificateholders will be to deliver the Certificates to the purchaser(s) and receive the purchase price for such Certificates and (ii) if the purchaser(s) shall so request, such Certificateholder will comply with all the provisions of Section 3.04 hereof to enable new Certificates to be issued to the purchaser in such denominations as it shall request. All charges and expenses in connection with the issuance of any moneys held hereunder such new Certificates shall be borne by the purchaser thereof. As used in this Section 6.01(b), the terms ‘‘Class __ Certificate’’, ‘‘Class __ Certificateholder’’, ‘‘Class __ Trust’’, and ‘‘Class __ Trustee’’ shall have the respective meanings assigned to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts terms in the name of the predecessor Depository or its own name as successor DepositoryIntercreditor Agreement.]

TABLE OF CONTENTS. The Depository may direct any party liable for any payment under any Collateral to make payment of any moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall direct, (B) ask or demand for, collect, and receive payment of and receipt for, any moneys, claims and other amounts due or to become due at any time be removed by the Corporation by in respect of or arising out of any Collateral, (C) sign and indorse any invoice, freight or express xxxx, xxxx of lading, storage or warehouse receipt, draft against debtors, assignment, verification, notice of such removal delivered to the Depositoryand other document in connection with any Collateral, such removal to take effect upon the appointment of a successor Depository hereunder (D) commence and its acceptance of such appointment as hereinafter provided. In case prosecute any suit, action or proceeding at any time the Depository acting hereunder shall resign law or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition equity in any court of competent jurisdiction for to collect the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor Collateral or any portion thereof and to enforce any other right in respect of any Collateral, (E) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral, (F) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Corporation an instrument in writing accepting its appointment hereunderAdministrative Agent may deem appropriate, (G) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Trademark pertains) throughout the world for such term or terms, on such conditions, and thereupon in such successor Depository, without any further act or deed, manner as the Administrative Agent shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be mergedsole discretion determine, consolidated or converted shall be the successor of the Depository without including the execution or and filing of any document necessary to effectuate or record such assignment and (H) generally, sell, transfer, pledge and make any further actagreement with respect to or otherwise deal with any Collateral as fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes, and notice thereof do, at the Administrative Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things that the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent’s and the other Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in this clause (a) to the contrary notwithstanding, the Administrative Agent agrees that it shall not exercise any right under the power of attorney provided for in this clause (a) unless an Event of Default shall be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorycontinuing.

TABLE OF CONTENTS. The Depository permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Collateral Agent, which may be withheld in its discretion) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply all or any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be removed by the Corporation by obliged to make any sale of Collateral regardless of notice of such removal delivered sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the Depository, such removal to take effect upon the appointment of a successor Depository hereunder time and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreementplace fixed therefor, and such predecessorsale may, upon payment of all sums due without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and on the written request of the Corporationdoes not offer such Collateral to more than one offeree. The Collateral Agent may disclaim any warranty, shall promptly execute and deliver an instrument transferring as to title or as to any other matter, in connection with such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successorsale or other disposition, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof doing so shall not be required hereunder. Such successor Depository may authenticate considered adversely to affect the Receipts in the name commercial reasonableness of the predecessor Depository such sale or its own name as successor Depositoryother disposition.

TABLE OF CONTENTS. The Depository may at any time be removed As provided in the Securityholders Agreement and subject to certain limitations herein and therein set forth, this Debt Security is transferable by the Corporation registered holder hereof on the Debt Security Register of the Company, upon surrender of this Debt Security for registration of transfer at the office or agency of the Company maintained for such purpose accompanied by notice a written instrument or instruments of such removal delivered transfer in form satisfactory to the Depository, Company duly executed by the registered holder hereof or such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office holder’s attorney duly authorized in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunderwriting, and thereupon one or more new Debt Securities of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such successor Depositoryregistration of transfer, without but the Company may require payment of a sum sufficient to cover any further act tax or deedother governmental charge payable in relation thereto. Prior registration of transfer of this Debt Security, the Company, any Paying Agent, any transfer agent and the Debt Security registrar may deem and treat the registered holder hereof as the absolute owner hereof (whether or not this Debt Security shall become fully vested with all be overdue and notwithstanding any notice of ownership or writing hereon) for the rightspurpose of receiving payment of or on account of the principal hereof, powerspremium, duties if any, and obligations of its predecessor interest due hereon and for all purposes other purposes, and neither the Company nor any Paying Agent nor any transfer agent nor any Debt Security registrar shall be affected by any notice to the Depository under contrary. No recourse shall be had for the payment of the principal of or premium, if any, or the interest on this Debt Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Securityholders Agreement, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released. The Debt Securities are issuable in registered uncertificated or certificated form without coupons. As provided in the Securityholders Agreement and subject to certain limitations herein and therein set forth, Debt Securities are exchangeable for a like aggregate principal amount of Debt Securities of a different authorized denomination, as requested by the holder surrendering the same. All terms used in this Debt Security that are defined in the Securityholders Agreement shall have the meanings assigned to them in the Securityholders Agreement. THE LAW OF THE STATE OF NORTH CAROLINA SHALL GOVERN THE SECURITYHOLDERS AGREEMENT AND THE DEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF. Table of Contents Pursuant to Section 3.4 of the Securityholders Agreement among Uwharrie Capital Corp, as issuer (the “Company”), and the Securityholders which are parties thereto, dated as of [ISSUANCE DATE] (as amended or supplemented from time to time, the “Securityholders Agreement”), the undersigned certifies that he/she is a principal executive officer, principal financial officer or principal accounting officer of the Company and in the course of the performance by the undersigned of his/her duties as an officer of the Company, the undersigned would normally have knowledge of any default by the Company in the performance of any covenants contained in the Securityholders Agreement, and the undersigned hereby further certifies that he/she has no knowledge of any such predecessordefault for the year 20 [,except as follows: specify each such default and the nature thereof]. Capitalized terms used herein, upon payment of all sums due it and on not otherwise defined herein, have the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest respective meanings ascribed thereto in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositorySecurityholders Agreement.

TABLE OF CONTENTS. The Depository may at This Certificate shall not be valid for any time be removed purpose unless it has been countersigned and registered by the Corporation Transfer Agent and Registrar. Dated: DCP Midstream, LP By: DCP Midstream GP, LP Countersigned and Registered by: By: DCP Midstream GP, LLC, its General Partner American Stock Transfer & Trust Company as Transfer Agent and Registrar By: Name: By: By: Authorized Signature Secretary [Reverse of Certificate] The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as follows according to applicable laws or regulations: TEN COM -as tenants in common UNIF GIFT/TRANSFERS MIN ACT TEN ENT - as tenants by notice the entireties Custodian (Cust) (Minor) JT TEN - as joint tenants with right of such removal delivered survivorship and not as tenants in common under Uniform Gifts/Transfers to CD Minors Act (State) Additional abbreviations, though not in the above list, may also be used. Table of Contents FOR VALUE RECEIVED, hereby assigns, conveys, sells and transfers unto (Please print or typewrite name and address of assignee) (Please insert Social Security or other identifying number of assignee) Common Units representing limited partner interests evidenced by this Certificate, subject to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Partnership Agreement, and such predecessordoes hereby irrevocably constitute and appoint as its attorney-in-fact with full power of substitution to transfer the same on the books of DCP Midstream, LP. Date: NOTE: The signature to any endorsement hereon must correspond with the name as written upon the face of this Certificate in every particular, without alteration, enlargement or change. THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17d-15 (Signature) (Signature) No transfer of the Common Units evidenced hereby will be registered on the books of the Partnership, unless the Certificate evidencing the Common Units to be transferred is surrendered for registration or transfer. Table of Contents No. Common Units In accordance with Section 4.1 of the Third Amended and Restated Agreement of Limited Partnership of DCP Midstream, LP, as amended, supplemented or restated from time to time (the “Partnership Agreement”), DCP Midstream, LP, a Delaware limited partnership (the “Partnership”), hereby certifies that (the “Holder”) is the registered owner of Class C Units representing limited partner interests in the Partnership (the “Class C Units”) transferable on the books of the Partnership, in person or by duly authorized attorney, upon payment surrender of this Certificate properly endorsed. The rights, preferences and limitations of the Second Units are set forth in, and this Certificate and the Class C Units represented hereby are issued and shall in all sums due it respects be subject to the terms and provisions of, the Partnership Agreement. Copies of the Partnership Agreement are on the file at, and will be furnished without charge on delivery of written request to the Partnership at, the principal office of the CorporationPartnership located at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. Capitalized terms used herein but not defined shall promptly execute have the meanings given them in the Partnership Agreement. THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF DCP MIDSTREAM, LP THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF DCP MIDSTREAM, LP UNDER THE LAWS OF THE STATE OF DELAWARE, OR (C) CAUSE DCP MIDSTREAM, LP TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). DCP MIDSTREAM GP LLC, THE GENERAL PARTNER OF DCP MIDSTREAM, LP, MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF DCP MIDSTREAM, LP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING. The Holder, by accepting this Certificate, is deemed to have (i) requested admission as, and deliver an instrument transferring agreed to such successor all rights become, a Limited Partner and powers of such predecessor hereunderto have agreed to comply with and be bound by and to have executed the Partnership Agreement, shall duly assign, transfer (ii) represented and deliver warranted that the Holder has all right, title power and interest authority and, if an individual, the capacity necessary to enter into the Partnership Agreement, (iii) granted the powers of attorney provided for in the Stock Partnership Agreement and any moneys held hereunder to such successor, (iv) made the waivers and shall deliver to such successor a list of given the Record Holders of all outstanding Receipts consents and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts approvals contained in the name of the predecessor Depository or its own name as successor DepositoryPartnership Agreement.

TABLE OF CONTENTS. The Depository may Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be mailed to each Person who was, at any time the Effective Time, a holder of record of the Shares entitled to receive the Merger Consideration pursuant to Section 2.5 a form of letter of transmittal (which shall be removed by the Corporation by notice in reasonable and customary form and shall specify that delivery shall be effected, and risk of such removal delivered loss and title to the Depositorycertificates evidencing such shares (the “Certificates”) shall pass, such removal to take effect only upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the proper delivery of the notice Certificates (or effective affidavits of resignation loss in lieu thereof) to the Paying Agent) and instructions for use in effecting the surrender of the Certificates or removalBook-Entry Shares pursuant to such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the case may beholder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each share of Company Common Stock formerly evidenced by such Certificates or Book-Entry Shares, appoint and such Certificates and Book-Entry Shares shall then be canceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a successor DepositoryPerson other than the Person in whose name the surrendered Certificates formerly evidencing the shares of Company Common Stock is registered on the stock transfer books of the Company, which it shall be a bank condition of payment that the Certificate so surrendered shall be endorsed properly or trust company having its principal office otherwise be in proper form for transfer and that the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository Person requesting such payment shall have been so appointed paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and established to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request satisfaction of the Corporation, shall promptly execute and deliver an instrument transferring to Surviving Corporation that such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list Taxes either have been paid or are not applicable. Payment of the Record Holders of all outstanding Receipts and applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryBook-Entry Shares are registered.

TABLE OF CONTENTS. The Depository may Offer. The Merger Agreement provides that Purchaser will commence the Offer and that, upon the terms and subject to prior satisfaction or waiver of the conditions to the Offer described in Section 13—"Conditions of the Offer" (including, if the Offer is extended or amended, the terms and conditions of any extension or amendment), Purchaser will accept for payment, and pay for, all Shares validly tendered pursuant to the Offer and not withdrawn prior to the Expiration Time. Pursuant to the terms of the Merger Agreement, unless extended or amended in accordance with the Merger Agreement, the Offer would expire on the later of January 4, 2016 and the date that is 20 business days following the commencement of the Offer. Purchaser expressly reserves the right (but is not obligated), in whole or in part, to waive any Offer Condition (as defined below) (other than the Minimum Condition), to increase the Offer Price or to make any other changes in the terms and conditions of the Offer. However, pursuant to the Merger Agreement, Purchaser has agreed that it will not, without the prior written consent of Pep Boys, (a) reduce the number of Shares subject to the Offer, (b) reduce the Offer Price or change the form of consideration payable in the Offer, (c) change, modify or waive the Minimum Condition, (d) add to the conditions set forth on Exhibit A to the Merger Agreement (and described below in Section 13—"Conditions of the Offer") (together with the Minimum Condition, the "Offer Conditions") or modify or change any Offer Condition in a manner adverse to any shareholders of Pep Boys, (e) except as otherwise provided in the Merger Agreement, extend or otherwise change the Expiration Time or (f) otherwise amend, modify or supplement any of the terms of the Offer in any manner adverse to any shareholders of Pep Boys. Purchaser reserves the right (but is not obligated) under the Merger Agreement to extend the Offer for one or more periods determined by Purchaser of up to 20 business days per extension (the length of any such extension to be determined by Purchaser (or BSRO on its behalf) in its sole discretion) if at any time be removed by then-scheduled Expiration Time any of the Corporation by notice of such removal delivered Offer Conditions have not been satisfied (and, to the Depositoryextent permitted, such removal shall not have been waived by BSRO or Purchaser). Upon the terms and conditions of the Merger Agreement, Purchaser is required to take effect upon extend the appointment Offer on one or more occasions: • at the request of a successor Depository hereunder and Pep Boys, for periods determined by Purchaser (or BSRO on its acceptance behalf) in its sole discretion of such appointment as hereinafter providedup to 20 business days each if, at the then-scheduled expiration of the Offer, any of the Offer Conditions are not satisfied or, to the extent permitted, waived; or • if required by any law, rule or regulation, including any interpretation or position of the SEC or its staff or the NYSE, applicable to the Offer. In case at any time Purchaser is not, however, required to extend the Depository acting hereunder shall resign Offer or be removedthe Expiration Time beyond the Termination Date. The Termination Date depends on the reason for the extension of the Offer. The Termination Date is February 26, 2016 unless all the Offer Conditions have been satisfied or waived except for those related to obtaining antitrust approval, in which case, under certain circumstances, the Corporation shallTermination Date will be extended to July 26, within 60 days after 2016. Upon the delivery terms and subject to the conditions of the notice of resignation or removalOffer, Purchaser will be required, as promptly as practicable following the case may beExpiration Time, appoint to accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer and will be required, as promptly as practicable, to accept and pay for any Shares validly tendered in a successor Depositorysubsequent offering period. Purchaser may, which in its sole discretion, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act if there shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall not have been so appointed validly tendered and have accepted appointment within 60 days after delivery not withdrawn that number of such notice, the resigning or removed Depository may petition any court Shares necessary to effect a short-form merger of competent jurisdiction for the appointment of a successor DepositoryPep Boys. Every successor Depository shall execute and deliver Subject to its predecessor and obligations under the Merger Table of Contents Agreement to extend the Corporation an instrument in writing accepting its appointment hereunderOffer, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all under the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Merger Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall Purchaser will not be required hereunder. Such successor Depository may authenticate the Receipts to accept for payment or pay for any tendered Shares in the name event that certain Offer Conditions have not been (or will not be capable of the predecessor Depository or its own name as successor Depositorybeing) satisfied.

TABLE OF CONTENTS. The Depository Company and the Warrant Agent may deem and treat the Registered Holder as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the Registered Holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. This Warrant does not entitle the Registered Holder to any of the rights of a stockholder of the Company. Subject to Section 6.4 of the Warrant Agreement, the Company may redeem all, but not less than all, of the Private Warrants that are not held by the Sponsor or any Permitted Transferees, at the option of the Company, at any time after the Warrants become exercisable and prior to their expiration, at the office of the Warrant Agent, upon the notice referred to in Section 6.2 of the Warrant Agreement, at the price of $0.01 per Warrant (the “Redemption Price”); provided, however, that the last sales price of the Common Stock has been equal to or greater than the Floor Price on each of 20 trading days within any 30 trading day period ending three Business Days prior to the date on which notice of redemption is given; and provided further that the Warrants (and the Common Stock issuable upon exercise of such Warrants) are covered by an effective registration statement from the date of notice of redemption through the date fixed for redemption. If the foregoing conditions are satisfied, and the Warrants are called for redemption, each Registered Holder will be removed entitled to exercise their Warrants prior to the date scheduled for redemption. In the event the Company calls the Warrants for redemption pursuant to Section 6.1 of the Warrant Agreement, the Company shall have the option to require all (but not part) of the holders of those Warrants who elect to exercise their Warrants prior to the date scheduled for redemption to exercise the Warrants on a cashless basis. If the Company requires holders of the Warrants to exercise the Warrants on a cashless basis, the holder of such Warrants shall pay the Warrant Price by surrendering such Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the Corporation difference between the Redemption Fair Market Value and the Warrant Price of the Warrants by notice of such removal delivered (y) the Redemption Fair Market Value. Any Warrant either not exercised or tendered back to the Depository, such removal to take effect upon Company by the appointment end of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of date specified in the notice of resignation or removal, as the case may be, appoint a successor Depository, which redemption shall be a bank or trust company having its principal office canceled on the books of the Company and have no further value except for the $0.01 redemption price. The securities represented by this Warrant Certificate (including the securities issuable upon the exercise of the Warrant) are subject to the terms and conditions set forth in the United States Warrant Agreement dated as of America [ ], 2008, by and having a combined capital between the Company and surplus the Warrant Agent (the “Warrant Agreement”). Copies of such agreement may be obtained by the holder hereof at least $50,000,000the Warrant Agent’s principal place of business without charge. If no successor Depository Capitalized terms used herein but not defined shall have been so appointed the meaning set forth in the Warrant Agreement. Table of Contents By: Name: Title: By: Name: Title: Table of Contents The undersigned Registered Holder irrevocably elects to exercise _________________ Warrants represented by this Warrant Certificate, and have accepted appointment within 60 days after delivery to purchase the shares of Common Stock issuable upon the exercise of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunderWarrants, and thereupon requests that Certificates for such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shares shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts issued in the name of and be delivered to and, if such number of Warrants shall not be all the predecessor Depository or its own Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate for the balance of such Warrants be registered in the name as successor Depositoryof, and delivered to, the Registered Holder at the address stated below: (SIGNATURE) (ADDRESS) (TAX IDENTIFICATION NUMBER) Table of Contents For Value Received, __________________________________ hereby sells, assigns, and transfers unto and be delivered to ___________________________________ of the Warrants represented by this Warrant Certificate, and hereby irrevocably constitute and appoint __________________________________________________________ Attorney to transfer this Warrant Certificate on the books of the Company, with full power of substitution in the premises.

TABLE OF CONTENTS. The Depository may at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder Borrower shall (i) promptly and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery faithfully observe and perform all of the notice material terms, covenants, conditions and provisions of resignation the material License Agreements to which it is a party to be observed and performed by it, at the times set forth therein, if any, (ii) not do, permit, suffer or removalrefrain from doing anything that could reasonably be expected to result in a default under or breach of any of the terms of any material License Agreement, (iii) not cancel, surrender, modify, amend, waive or release any material License Agreement in any material respect or any term, provision or right of the licensee thereunder in any material respect, or consent to or permit to occur any of the foregoing; except, that, subject to Section 9.18(b) below, Borrower may cancel, surrender or release any material License Agreement in the ordinary course of the business of Borrower; provided, that, Borrower (as the case may be) shall give Agent not less than thirty (30) days prior written notice of its intention to so cancel, appoint surrender and release any such material License Agreement, (iv) give Agent prompt written notice of any material License Agreement entered into by Borrower after the date hereof, together with a successor Depositorytrue, which shall be a bank correct and complete copy thereof and such other information with respect thereto as Agent may request, (v) give Agent prompt written notice of any material breach of any obligation, or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticeany default, the resigning or removed Depository may petition by any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute party under any material License Agreement, and deliver to its predecessor Agent (promptly upon the receipt thereof by Borrower in the case of a notice to Borrower and concurrently with the sending thereof in the case of a notice from Borrower ) a copy of each notice of default and every other notice and other communication received or delivered by Borrower in connection with any material License Agreement which relates to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon right of Borrower to continue to use the property subject to such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this License Agreement, and such predecessor(vi) furnish to Agent, promptly upon payment of all sums due it and on the written request of Agent, such information and evidence as Agent may reasonably require from time to time concerning the Corporationobservance, shall promptly execute performance and deliver an instrument transferring to such successor all rights and powers of such predecessor hereundercompliance by Borrower or the other party or parties thereto with the material terms, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into covenants or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing provisions of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorymaterial License Agreement.

TABLE OF CONTENTS. The Depository Dissenting Shares. Stockholders should recognize that the value so determined could be higher or lower than the price per Share paid pursuant to the Offer. Moreover, Silicon Image may at any time be removed by the Corporation by notice argue in an appraisal proceeding that, for purposes of such removal delivered a proceeding, the fair value of the Dissenting Shares is less than the price paid for Shares in the Offer or the Merger. Stockholders should also note that investment banking opinions as to the Depositoryfairness, from a financial point of view, of the consideration payable in a sale transaction, such removal as the Offer or the Merger, are not opinions as to, and do not otherwise address, fair value under Section 262 of the DGCL. If any holder of Shares who demands appraisal under Section 262 fails to take effect upon perfect, or effectively withdraws or loses his, her or its rights to appraisal as provided under the appointment DGCL, the Shares of such stockholder will be converted into the right to receive the Offer Price in accordance with the Merger Agreement. A stockholder may withdraw a successor Depository hereunder demand for appraisal by delivering to Silicon Image a written withdrawal of the demand for appraisal and its acceptance of the Merger. Failure to follow the steps required by Section 262 for perfecting appraisal rights may result in the loss of such appointment as hereinafter providedrights. In case at At the Effective Time, all Dissenting Shares will no longer be outstanding and will automatically be canceled and will cease to exist, and each holder of Dissenting Shares will cease to have any time rights with respect thereto, except the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery rights provided under Section 262 of the notice DGCL. Notwithstanding the foregoing, if any such holder fails to perfect or otherwise waives, withdraws or loses the right to appraisal under Section 262 of resignation the DGCL, or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for determines that such holder is not entitled to the appointment relief provided by Section 262 of a successor Depository. Every successor Depository shall execute and deliver the DGCL, then such Dissenting Shares will be deemed to its predecessor have been converted at the Effective Time into, and to have become, the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all right to receive the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request Merger Consideration. The foregoing summary of the Corporation, shall promptly execute and deliver an instrument transferring rights of stockholders seeking appraisal under Delaware law does not purport to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor be a list complete statement of the Record Holders of all outstanding Receipts procedures to be followed by stockholders desiring to exercise any appraisal rights available thereunder and such records, books and other information is qualified in its possession relating theretoentirety by reference to Section 262. Any entity into or with which The perfection of appraisal rights requires strict adherence to the Depository may be merged, consolidated or converted shall be the successor applicable provisions of the Depository without DGCL. If a stockholder withdraws or loses the execution or filing of any document or any further actright to appraisal, and notice thereof shall not such stockholder will be required hereunder. Such successor Depository may authenticate entitled to receive only the Receipts in the name of the predecessor Depository or its own name as successor DepositoryMerger Consideration.

TABLE OF CONTENTS. The Depository may at During the term of the Support Agreements, except as otherwise provided therein, none of the Specified Stockholders will: • transfer, assign, sell, gift-over, pledge or otherwise dispose (whether by sale, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise) of, or consent to any time be removed by of the Corporation by notice foregoing, any or all of such removal delivered Specified Stockholder’s Shares to purchase Shares or any right or interest therein, except with IDEX’s or the Purchaser’s consent, provided that as a condition to such transfer, the transferee agrees that the Shares remains subject to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance terms of such appointment as hereinafter providedSpecified Stockholder’s Support Agreement; • enter into any contract, option or other agreement, arrangement or understanding with respect to any such transfer; • grant any proxy, power-of-attorney or other authorization or consent with respect to any of such Specified Stockholder’s Shares; • deposit any of such Specified Stockholder’s Shares into a voting trust, or enter into a voting agreement or arrangement with respect to any of such Shares; or • take any other action that would in any way restrict, limit or interfere with the performance of such Specified Stockholder’s obligations under his or her Support Agreement or the transactions contemplated thereby. In case at any time the Depository acting hereunder shall resign or be removedAdditionally, the Corporation shall, within 60 days after the delivery each of the notice of resignation Specified Stockholders has agreed to notify IDEX and the Purchaser immediately if such Specified Stockholder receives any proposals or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery request is made of such notice, the resigning Specified Stockholder for any information or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity enter into or continue negotiations or discussions with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of such stockholder in connection with any document or any further act, and notice thereof shall not be required hereunderAcquisition Proposal. Such successor Depository may authenticate the Receipts in notice shall include, the name of the predecessor Depository third party making such information request or Acquisition Proposal and the material terms and conditions of such Acquisition Proposal or information request. Pursuant to the Support Agreements, each of the Specified Stockholders agrees to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any third parties with respect to any Acquisition Proposal and to keep IDEX and the Purchaser fully informed of the status and terms of any Acquisition Proposal. During the term of the Support Agreements, each of the Specified Stockholders agrees not to: • initiate, solicit or encourage, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal; • enter into any agreement with respect to any Acquisition Proposal; or • in the event of an unsolicited Acquisition Proposal, engage in negotiations or discussions with, or provide any information or data to, any third party (other than IDEX or any of its own name affiliates or representatives) relating to any Acquisition Proposal. Notwithstanding the no solicitation provisions described above, the Support Agreements do not limit the rights of any of the Specified Stockholders who is an officer or director of Microfluidics from, acting solely in his or her capacity as successor Depository.an officer or director, fulfilling the obligations of such office or performing any obligations required by fiduciary duties. The Support Agreements, and all rights and obligations of IDEX, the Purchaser and the Specified Stockholders, will terminate on the earlier of: (i) the date on which the Merger Agreement is terminated in accordance with its terms; (ii) the Effective Time; and (iii) the delivery of written notice of termination by the Specified Stockholders to IDEX, following any amendment to the Merger Agreement that is materially adverse to the Specified Stockholders and effected without the prior written consent of the Specified Stockholders; provided, however, that in certain circumstances where the Merger Agreement is terminated and at such time an Acquisition Proposal has been publicly announced or otherwise communicated to Microfluidics, certain provisions contained in the Support Agreements will remain in effect for six months following the termination of the Merger Agreement. 52

TABLE OF CONTENTS. The Depository Notice of Guaranteed Delivery may at be transmitted by manually signed facsimile transmission or mailed to the Depositary and must include a guarantee by an Eligible Institution in the form set forth in the form of Notice of Guaranteed Delivery made available by Purchaser. Notwithstanding any time other provision of this Offer, payment for Shares accepted for payment pursuant to the Offer will in all cases only be removed made after timely receipt by the Corporation by notice Depositary of (i) certificates evidencing such Shares or a Book-Entry Confirmation of a book-entry transfer of such removal delivered Shares into the Depositary’s account at DTC pursuant to the Depositoryprocedures set forth in this Section 3, (ii) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, with any required signature guarantees and (iii) any other documents required by the Letter of Transmittal or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal and such removal other documents. Accordingly, tendering stockholders may be paid at different times depending upon when the Share Certificates and Letter of Transmittal, or Book-Entry Confirmations and Agent’s Message, in each case, with respect to take effect Shares are actually received by the Depositary. THE METHOD OF DELIVERY OF THE SHARES (OR SHARE CERTIFICATES), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. DELIVERY OF THE SHARES (OR SHARE CERTIFICATES), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS WILL BE DEEMED MADE, AND RISK OF LOSS THEREOF SHALL PASS, ONLY WHEN THEY ARE ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER OF SHARES, BY BOOK-ENTRY CONFIRMATION WITH RESPECT TO SUCH SHARES). IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT THE SHARES (OR SHARE CERTIFICATES), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. The tender of Shares pursuant to any one of the procedures described above will constitute the tendering stockholder’s acceptance of the Offer, as well as the tendering stockholder’s representation and warranty that such stockholder has the full power and authority to tender and assign the Shares tendered, as specified in the Letter of Transmittal. Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering stockholder and us upon the appointment of a successor Depository hereunder terms and its acceptance of such appointment as hereinafter provided. In case at any time subject to the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery conditions of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryOffer.

TABLE OF CONTENTS. The Depository may at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery Section 2.16(b) of the notice of resignation or removalCompany Disclosure Letter sets forth a true, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America correct and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a complete list of the Record Holders common address and current use of all outstanding Receipts real property leased, subleased, licensed or otherwise used or occupied (whether as a tenant, subtenant, or pursuant to other occupancy arrangements) by the Company and such recordsits Subsidiaries (collectively, books the “Company Leased Real Property”) pursuant to leases, subleases, licenses and other information occupancy agreements, including all amendments, modifications and supplements with respect to any of the foregoing (the “Company Leases”) under which the Company or any of its Subsidiaries is a tenant, subtenant or occupant, and for each Company Lease indicates whether or not the consent of the landlord will be required in connection with the transactions contemplated by this Agreement. The Company or one of its Subsidiaries (either directly or indirectly) holds a valid and existing leasehold or subleasehold interest, as applicable, in the Company Leased Real Property under each of the Company Leases. The Selling Parties have delivered or made available to the Purchasing Parties true, correct and complete copies of each of the Company Leases. With respect to each Company Lease: (i) such Company Lease is, and, assuming the receipt of the consents set forth in Section 2.16(b) of the Company Disclosure Letter and the provision of any notices required under the Company Leases, upon the consummation of the transactions contemplated by this Agreement will be, (A) in full force and effect, (B) the legal, valid, and binding obligation of the Company or the applicable Subsidiary, and (C) current with respect to rent and other sums and charges payable by the Company or such Subsidiary pursuant to the Company Lease, (ii) none of the Company or any of its Subsidiaries is in material default, taking into account any notice and cure period, under such Company Lease, to the Knowledge of the Selling Parties, no other party to a Company Lease is in material default, taking into account any notice and cure period, under such Company Lease and, to the Knowledge of the Selling Parties, no event has occurred that, with notice or lapse of time, or both, would constitute a material breach or default by the Company or any of its Subsidiaries or permit termination under such Company Lease by any party thereto, (iii) the terms of such Company Lease have not been modified in any respect, except to the extent that such modifications are set forth in the documents previously delivered or made available to the Purchasing Parties or disclosed to the Purchasing Parties in Section 2.16(b) of the Company Disclosure Letter, and none of the Selling Parties, the Company or its Subsidiaries is currently in negotiations with any landlord to cancel or terminate any Company Lease prior to the end of the stated term of such Company Lease, (iv) none of the Selling Parties, the Company or any of its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or granted any security interest in its possession relating thereto. Any entity into or with which leasehold interest in such Company Lease, and, other than the Depository may be mergedCompany Leases, consolidated or converted shall be the successor none of the Depository without Company Leased Real Property is subject to any lease, sublease, license or other agreement which grants, from the execution Company or filing one of its Subsidiaries, to any document other person, any right to the use, occupancy or enjoyment of such Company Leased Real Property or any further actpart thereof and (v) each guaranty by the Company or any of its Subsidiaries, if any, with respect to a Company Lease is in full force and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryeffect.

TABLE OF CONTENTS. The Depository interestholder understands that this Certificate may at any time be removed disclosed to the Internal Revenue Service by the Corporation Partnership and that any false statement contained herein could be punishable by notice fine, imprisonment or both. Under penalties of such removal delivered to the Depositoryperjury, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall I declare that I have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor examined this certification and to the Corporation best of my knowledge and belief it is true, correct and complete and, if applicable, I further declare that I have authority to sign this document on behalf of: Note: If the assignee is a broker, dealer, bank, trust company, clearing corporation, other nominee holder or an instrument in writing accepting its appointment hereunderagent of any of the foregoing, and thereupon such successor Depositoryis holding for the account of any other person, this certification should be completed by an officer thereof or, in the case of a broker or dealer, by a registered representative who is a member of a registered national securities exchange or a member of the National Association of Securities Dealers, Inc. or, in the case of any other nominee holder, a person performing a similar function. If the Assignee is a broker, dealer, bank, trust company, clearing corporation, other nominee owner or an agent of any of the foregoing, the above certification as to any person for whom the assignee will hold the Series A Preferred Units shall be made to the best of Assignee’s knowledge. Table of Contents 7.875% Series B Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Units No. Series B Preferred Units with an aggregate liquidation preference of $ In accordance with Section 4.1 of the Third Amended and Restated Agreement of Limited Partnership of DCP Midstream, LP, as amended, supplemented or restated from time to time (the “Partnership Agreement”), DCP Midstream, LP, a Delaware limited partnership (the “Partnership”), hereby certifies that (the “Holder”) is the registered owner of 7.875% Series B Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Units representing limited partner interests in the Partnership (the “Series B Preferred Units”), transferable on the books of the Partnership, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. The rights, preferences and limitations of the Series B Preferred Units are set forth in, and this Certificate and the Series B Preferred Units represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be furnished without charge on delivery of written request to the Partnership at the principal office of the Partnership located at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. Capitalized terms used herein but not defined shall have the meanings given them in the Partnership Agreement. THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF DCP MIDSTREAM, LP THAT THIS SECURITY MAY NOT BE TRANSFERRED IF SUCH TRANSFER (AS DEFINED IN THE PARTNERSHIP AGREEMENT) WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF DCP MIDSTREAM, LP UNDER THE LAWS OF THE STATE OF DELAWARE, OR (C) CAUSE DCP MIDSTREAM, LP TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). DCP MIDSTREAM GP, LP, THE GENERAL PARTNER OF DCP MIDSTREAM, LP, MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF DCP MIDSTREAM, LP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING. The Holder, by accepting this Certificate, is deemed to have (i) requested admission as, and agreed to become, a Limited Partner and to have agreed to comply with and be bound by and to have executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right, power and authority and, if an individual, the capacity necessary to enter into the Partnership Agreement, (iii) granted the powers of attorney provided for in Section 2.6 of the Partnership Agreement and (iv) made the waivers and given the consents and approvals contained in the Partnership Agreement. This Certificate shall not be valid for any further act or deedpurpose unless it has been countersigned and registered by the Transfer Agent and Registrar. Dated: Countersigned and Registered by: American Stock Transfer & Trust Company, LLC as Transfer Agent and Registrar By: Authorized Signatory DCP Midstream, LP By: DCP Midstream GP, LP its General Partner By: DCP Midstream GP, LLC, its General Partner By: Name: Title: By: Name: Title: Table of Contents The following abbreviations, when used in the inscription on the face of this Certificate, shall become fully vested be construed as follows according to applicable laws or regulations: TEN COM - TEN ENT - JT TEN - as tenants in common as tenants by the entireties as joint tenants with all right of survivorship and not as tenants in common UNIF GIFT/TRANSFERS MIN ACT Custodian (Cust) (Minor) under Uniform Gifts/Transfers to CD Minors Act (State) FOR VALUE RECEIVED, hereby assigns, conveys, sells and transfers unto: (Please print or typewrite name and address of assignee) (Please insert Social Security or other identifying number of assignee) Series B Preferred Units representing limited partnership interests evidenced by this Certificate, subject to the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Partnership Agreement, and such predecessor, upon payment does hereby irrevocably constitute and appoint as its attorney-in-fact with full power of all sums due it and substitution to transfer the same on the books of DCP Midstream, LP. Date: NOTE: The signature to any endorsement hereon must correspond with the name as written request upon the face of this Certificate in every particular, without alteration, enlargement or change. Table of Contents THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15 (Signature) (Signature) No transfer of the CorporationSeries B Preferred Units evidenced hereby will be registered on the books of the Partnership, shall promptly execute and deliver unless the Certificate evidencing the Series B Preferred Units to be transferred is surrendered for registration or transfer. Table of Contents Type of Entity (check one): ☐ Individual ☐ Partnership ☐ Corporation ☐ Trust ☐ Other (specify) Nationality (check one): ☐ U.S. Citizen, Resident or Domestic Entity ☐ Foreign Corporation ☐ Non-resident Alien If the U.S. Citizen, Resident or Domestic Entity box is checked, the following certification must be completed. Under Section 1445(e) of the Internal Revenue Code of 1986, as amended (the “Code”), the Partnership must withhold tax with respect to certain transfers of property if a holder of an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder Partnership is a foreign person. To inform the Partnership that no withholding is required with respect to such successorthe undersigned interestholder’s Interest in it, and shall deliver to such successor a list the undersigned hereby certifies the following (or, if applicable, certifies the following on behalf of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating theretointerestholder). Any entity into Complete Either A or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.B:

TABLE OF CONTENTS. The Depository may Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Company may, at any time be removed its option, revoke the interest rate, if any, provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Corporation by Trustee to transmit, in the manner provided for in Section 106, notice of such removal delivered higher interest rate to the DepositoryHolder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate. If the Company extends the Stated Maturity of any Security, the Holder will have the option to elect repayment of such removal Security by the Company on the Original Stated Maturity at a price equal to take effect upon the appointment principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Company has extended the Stated Maturity thereof, the Holder must follow the procedures set forth in Article Fourteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity. SECTION 309. Persons Deemed Owners. Prior to due presentment of a successor Depository hereunder Registered Security for registration of transfer, the Company, the Guarantor (if a Guarantee is endorsed on such Registered Security), the Trustee and its acceptance any agent of the Company, the Guarantor (if a Guarantee is endorsed on such Registered Security), or the Trustee may treat the Person in whose name such Registered Security is registered as the absolute owner of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction Registered Security for the appointment purpose of a successor Depository. Every successor Depository shall execute receiving payment of principal of (and deliver premium, if any) and (subject to its predecessor Sections 305 and to the Corporation an instrument in writing accepting its appointment hereunder307) interest, and thereupon if any, on such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and none of the Company, the Guarantor (if a Guarantee is endorsed on such Registered Security), the Trustee nor any agent of the Company, the Guarantor (if a Guarantee is endorsed on such Registered Security), or the Trustee shall be affected by notice to the Depository under this Agreementcontrary. Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Guarantor (if a Guarantee is endorsed on such Bearer Security), the Trustee and any agent of the Company, the Guarantor (if a Guarantee is endorsed on such Bearer Security), or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and such predecessor, upon payment of all sums due it and on the written request none of the CorporationCompany, shall promptly execute and deliver an instrument transferring to the Guarantor (if a Guarantee is endorsed on such successor all rights and powers of such predecessor hereunderBearer Security), shall duly assign, transfer and deliver all right, title and interest in the Stock and Trustee nor any moneys held hereunder to such successor, and shall deliver to such successor a list agent of the Record Holders of all outstanding Receipts and Company, the Guarantor (if a Guarantee is endorsed on such recordsBearer Security), books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted Trustee shall be affected by notice to the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorycontrary.

TABLE OF CONTENTS. The Depository may delivery of such Note (together with all necessary endorsements) to the Paying Agent at the office of the Paying Agent or to an office or agency referred to in Section 902 of the Indenture prior to, on or after the Change in Control Purchase Date shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor; provided that such Change in Control Purchase Price shall be so paid pursuant to this Section 404 only if the Note so delivered to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture shall conform in all respects to the description thereof set forth in the related Change in Control Purchase Notice. The Company shall purchase from the Holder thereof, pursuant to this Section 404, a portion of a Note if the principal amount of such portion is Cdn$1,000 or an integral multiple of Cdn$1,000. Provisions of the Indenture that apply to the purchase of all of a Note also apply to the purchase of a portion of such Note. Any purchase by the Company contemplated pursuant to the provisions of this Section 404 shall be consummated by the delivery by the Company of the consideration to be received by the Holder promptly upon the later of (a) the first Business Day following the Change in Control Purchase Date and (b) the time of delivery of the Note by the Holder to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture in the manner required by this Section 404. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent, at the office of the Paying Agent or an office or agency referred to in Section 902 of the Indenture, the Change in Control Purchase Notice contemplated by this Section 404(b) shall have the right to withdraw such Change in Control Purchase Notice at any time be removed prior to the close of business on the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture in accordance with Section 601 hereof. The Paying Agent or the office or agency referred to in Section 902 of the Indenture shall promptly notify the Company of the receipt by the Corporation by former of any Change in Control Purchase Notice or written notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorywithdrawal thereof.

TABLE OF CONTENTS. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of holders of Securities of such series, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the holders of Securities of any other series. Upon the request of the Company, accompanied by a copy of the Board Resolution certified by a Responsible Officer of the Company authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. The Depository may Trustee, at the expense of the Company, shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel with regard to any time such supplemental indenture. The Trustee shall be removed entitled to conclusively rely upon such Officer’s Certificate and Opinion of Counsel in entering into such supplemental indenture. The Opinion of Counsel shall comply with Section 10.05 and confirm (inter alia) that the supplemental indenture is authorized or permitted under this Indenture, and that it is legal, valid, binding and enforceable against the Company under New York law. It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Corporation Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall give notice thereof by notice (a) first-class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the Register of the Company or (b) by any other means set forth in such supplemental indenture, setting forth in general terms the substance of such removal delivered supplemental indenture. The Trustee shall assist the Company with the distribution of the notices to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter providedHolders. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery Any failure of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of Company to mail such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deeddefect therein, shall become fully vested with all not, however, in any way impair or affect the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing validity of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorysuch supplemental indenture.

TABLE OF CONTENTS. The Depository may at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository Depositary acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor DepositoryDepositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus surplus, including with its affiliates, of at least $50,000,000. If no successor Depository Depositary shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository Depositary may petition any court of competent jurisdiction for the appointment of a successor DepositoryDepositary. Every successor Depository Depositary shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor DepositoryDepositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Series E Preferred Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any successor Depositary shall promptly mail or transmit by such other method approved by such successor Depositary, in its reasonable discretion, notice of its appointment to the Record Holders of Receipts. Any entity into or with which the Depository Depositary may be merged, consolidated or converted shall be the successor of the Depository Depositary without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository Depositary may authenticate the Receipts in the name of the predecessor Depository Depositary or its own name as successor DepositoryDepositary.

TABLE OF CONTENTS. The Depository full text of the written opinion of Baird is attached hereto as Annex E and is incorporated by reference in its entirety into this proxy statement/prospectus. The opinion sets forth, among other things, the assumptions made, specified work performed, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Baird in rendering its opinion. You are encouraged to read Xxxxx’x opinion carefully and in its entirety. Xxxxx’x opinion was prepared at the request, and provided for the information, of the members of the NSH Conflicts Committee (solely in their capacity as such), in connection with their evaluation of the merger and addresses only the fairness, from a financial point of view, to the NSH unaffiliated unitholders of the Consideration to be received by such unitholders. Baird was not asked to express, and in its opinion does not express, any opinion with respect to any of the other financial or non-financial terms, conditions, determinations or actions with respect to the merger. Xxxxx’x opinion also does not address the relative merits or risks of: (1) the merger, the merger agreement or any other agreements or other matters provided for, or contemplated by, the merger, the merger agreement, or any tax strategy implemented or contemplated pursuant to the merger; (2) any other transactions that may be or might have been available as an alternative to the merger; or (3) the merger compared to any other potential alternative transactions or business strategies considered by NSH, the Partnership, the NSH Conflicts Committee or the NSH Board and, accordingly, Baird has relied upon its discussions with the management of NSH and the Partnership with respect to the availability and consequences of any alternatives to the merger. Baird was not engaged or requested to provide, and has not provided, any advice concerning the advisability of entering into the merger. Xxxxx’x opinion does not constitute a recommendation to the NSH Conflicts Committee, the NSH Board or any other person as to how any such person should act with respect to the merger. The summary of the Baird opinion set forth herein is qualified in its entirety by reference to the full text of the opinion included as Xxxxx X. In conducting its investigation and analyses and in arriving at any time be removed its opinion, Baird reviewed such information and took into account such financial and economic factors, investment banking procedures and considerations as it deemed relevant under the circumstances. In that connection, and subject to the various assumptions, qualifications and limitations set forth herein, Baird, among other things: • reviewed certain internal information, furnished to Baird, primarily financial in nature, including the three-year financial forecasts concerning the business and operations of the Partnership, which such financial forecasts for EBITDA and DCF were certified by management of NSH for purposes of Xxxxx’x analysis and have relied on guidance of the management of NSH and the Partnership, specifically management’s expectation of targeting an approximately 1.2x DCF coverage ratio at the Partnership, to calculate cash distributions per common unit and NSH unit (collectively such information, the “Forecasts”); • in estimating cash distributions for NSH and the Partnership for purposes of its analyses, sensitized around a range of DCF coverage ratiosat the Partnership and assumed a distribution increase after the applicable target DCF coverage rate was met within each coverage scenario; • met with management of NSH and the Partnership in person and by telephone on several occasions for review and updates regarding NSH,the Partnership and certain of their respective assets; • held discussions with members of management of NSH and the Partnership concerning their views on general market trends, historical and current financial condition and operating results, as well as the future prospects of NSH and the Partnership and the anticipated benefits of the proposed merger; • reviewed certain publicly available information including, but not limited to, NSH’s and the Partnership’s recent filings with the SEC; • in conjunction with the NSH Conflicts Committee and its legal counsel, reviewed the initial proposal letter and associated supportingmaterials provided by the Corporation by notice Partnership dated December 11, 2017; • in conjunction with the NSH Conflicts Committee and its legal counsel, reviewed the principal financial terms of such removal delivered the merger agreementdated February 7, 2018, the amended and restated partnership Table of Contents agreement in the form attached to the Depositorymerger agreement as Annex A, and the NuStar GP amended and restated company agreement in theform attached to the merger agreement as Annex B, as such removal terms relate to take effect upon Xxxxx’x analysis; • reviewed the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery proposed financial terms of the notice merger and the reported financial terms of resignation or removalcertain other transactions Baird deemed relevant; • reviewed the historical market prices, trading activity and market trading multiples of NSH units and common units, as well as those ofcertain other publicly-traded partnerships and companies Baird deemed relevant; • considered the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office present values of the forecasted cash flows attributable to NSH and the Partnership as contained in the United States Forecasts; • considered the present values of America the forecasted stand-alone distributions to the holders of the common units and having a combined capital NSH units as contained inthe Forecasts; and surplus of at least $50,000,000. If no successor Depository shall have been so appointed • considered various other information, financial studies, analyses and have accepted appointment within 60 days after delivery of such noticeinvestigations and financial, the resigning or removed Depository may petition any court of competent jurisdiction economic and market criteria Bairddeemed relevant for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations preparation of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryopinion.

TABLE OF CONTENTS. The Depository may at any time be removed Upon application by the Surviving Corporation or by notice any person entitled to participate in the appraisal proceeding, the Delaware Court of Chancery may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the persons entitled to an appraisal. Any person whose name appears on the Verified List and, if such Shares are represented by certificates and if so required, who has submitted such person’s certificates of stock to the office of the Delaware Register in Chancery, may participate fully in all proceedings until it is finally determined that such person is not entitled to appraisal rights under Section 262. The Delaware Court of Chancery will direct the payment of the fair value of the Shares, together with interest, if any, on the amount determined to be the fair value (or, in certain circumstances described herein, on the difference between the amount determined to be the fair value and the amount paid by the Surviving Corporation to each person entitled to appraisal prior to the entry of judgment in the appraisal proceeding), by the Surviving Corporation to the persons entitled thereto. Payment will be made to each such person upon such terms and conditions as the Delaware Court of Chancery may order, in the case of stockholder or beneficial owners of uncertificated stock, forthwith, and in the case of stockholders or beneficial owners of Shares represented by certificates, if any, upon the surrender to the Surviving Corporation of the certificate(s) representing such Shares. The Delaware Court of Chancery’s decree may be enforced as other decrees in the Delaware Court of Chancery may be enforced. The costs of the appraisal proceedings (which do not include attorneys’ fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a person whose name appears on the Verified List who participated in the proceeding and incurred expenses in connection therewith, the Delaware Court of Chancery may also order that all or a portion of such removal delivered expenses, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts utilized in the appraisal proceeding, be charged pro rata against the value of all the Shares entitled to appraisal not dismissed pursuant to subsection (k) of Section 262 or subject to such an award pursuant to a reservation of jurisdiction under subsection (k) of Section 262. In the absence of such order, each party bears its own expenses. From and after the Effective Time, no person who has demanded appraisal rights with respect to some or all of such person’s Shares in compliance with Section 262 will be entitled to tender such Shares, to vote such Shares or to receive payment of dividends or other distributions on such Shares, except dividends or other distributions payable to stockholders of record at a date which is prior to the Depository, such removal Effective Time. If a person who has made a demand for an appraisal in accordance with Section 262 delivers to take effect upon the appointment of Surviving Corporation a successor Depository hereunder and its acceptance written withdrawal of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign person’s demand for an appraisal in respect of some or be removed, the Corporation shall, all of such person’s Shares either within 60 days after the delivery Effective Time or thereafter with the written approval of Morphic, then the right of such person to an appraisal of the notice Shares subject to the withdrawal will cease. Once a petition for appraisal is filed with the Delaware Court of resignation or removalChancery, however, the appraisal proceeding may not be dismissed as to any person without the approval of the Delaware Court of Chancery, and such approval may be conditioned upon such terms as the case may becourt deems just, appoint including without limitation a successor Depositoryreservation of jurisdiction for any application to the Delaware Court of Chancery made under subsection (j) of Section 262; provided, which however, that the foregoing shall be not affect the right of any person who has not commenced an appraisal proceeding or joined that proceeding as a bank or trust company having its principal office in named party to withdraw such person’s demand for appraisal and to accept the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment terms offered upon the Merger within 60 days after delivery the Effective Time. Failure to comply strictly with all of the procedures set forth in Section 262 may result in the loss of a stockholder’s or beneficial owner’s statutory appraisal rights. If any person who demands appraisal of his, her or its Shares under Section 262 fails to perfect, or effectively loses or withdraws such noticeperson’s right to appraisal, the resigning or removed Depository may petition any court of competent jurisdiction for person’s Shares will be deemed to have been converted at the appointment of a successor Depository. Every successor Depository shall execute and deliver Effective Time into the right to its predecessor and to receive the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor DepositoryMerger Consideration, without interest. Consequently, any further act stockholder or deed, shall become fully vested with all the beneficial owner wishing to exercise appraisal rights is encouraged to consult legal counsel before attempting to exercise those rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request . This discussion is not a complete statement of the Corporation, shall promptly execute law pertaining to appraisal rights under the DGCL and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information is qualified in its possession relating thereto. Any entity into or with entirety by the full text of Section 262, which the Depository may be merged, consolidated accessed without subscription or converted shall be cost at the successor following publicly available website: xxxxx://xxxxxxx.xxxxxxxx.xxx/title8/c001/sc09/index.html#262. The proper exercise of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryappraisal rights requires strict adherence to Section 262.

TABLE OF CONTENTS. The Depository Subject to the provisions of the Rights Agreement, at the Company’s option, the Rights evidenced by this Certificate (i) may be redeemed by the Company at a redemption price of $0.001 per Right or (ii) may be exchanged in whole or in part for shares of the Company’s Common Stock, par value $0.001 per share, or Preferred Stock. No fractional Preferred Stock will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one one-thousandth (1/1,000) of a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement. No holder of this Right Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Stock or of any other securities of the Company which may at any time be removed by issuable on the Corporation by exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment meetings or other actions affecting stockholders (except as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office provided in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate shall have been so appointed and exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have accepted appointment within 60 days after delivery of such notice, been countersigned by the resigning or removed Depository may petition any court of competent jurisdiction for Rights Agent. WITNESS the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request facsimile signature of the Corporationproper officers of the Company and its corporate seal. Dated as of . Attest: XXXXX MICRO SOFTWARE, shall promptly execute INC. By: Name: Title: Countersigned Rights Agent By: Authorized Signature Table of Contents FOR VALUE RECEIVED hereby sells, assigns and deliver an instrument transferring to such successor all rights and powers of such predecessor hereundertransfers unto . this Right Certificate, shall duly assign, transfer and deliver together with all right, title and interest therein, and does hereby irrevocably constitute and appoint , Attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Date: Signature Signature Guaranteed: Signatures must be medallion guaranteed by an eligible guarantor institution (a bank, stockbroker, savings and loan association or credit union with membership in an approved signature guarantee medallion program) pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934. The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement). Signature Table of Contents (To be executed if holder desires to exercise the Right Certificate.) To XXXXX MICRO SOFTWARE, INC.: The undersigned hereby irrevocably elects to exercise Rights represented by this Right Certificate to purchase the Preferred Stock issuable upon the exercise of such Rights and any moneys held hereunder to requests that certificates for such successor, and shall deliver to Preferred Stock be issued in the name of: Please insert social security or other identifying number If such successor a list number of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Rights shall not be required hereunder. Such successor Depository may authenticate all the Receipts Rights evidenced by this Right Certificate, a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and delivered to: Please insert social security or other identifying number Date: Signature Signature Guaranteed: Signatures must be medallion guaranteed by a participant in a Securities Transfer Association Inc. recognized signature guarantee medallion program. Table of Contents The undersigned hereby certifies that the predecessor Depository Rights evidenced by this Right Certificate are not beneficially owned by an Acquiring Person or its own name an Affiliate or Associate thereof (as successor Depository.defined in the Rights Agreement). Signature

TABLE OF CONTENTS. The Depository may at any time be removed by Subject to Paragraph 2, the Corporation by notice transfer of a Security is registrable on the aforementioned register upon surrender of such removal delivered Security at the corporate trust office of the Fiscal Agent [ or any Transfer Agent] duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the DepositoryIssuer and the Fiscal Agent duly executed by, the registered holder thereof or his attorney duly authorized in writing. Subject to Paragraph 2, upon such removal to take effect upon surrender of this Security for registration of transfer, the appointment Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities, dated the date of authentication thereof, of any authorized denominations and of a successor Depository hereunder like aggregate principal amount. At the option of the registered holder upon request confirmed in writing, Registered Securities may be exchanged for Registered Securities of any authorized denominations and its acceptance of such appointment as hereinafter provideda like tenor, form and aggregate principal amount upon surrender of the Securities to be exchanged at the [office of any Transfer Agent or at the] corporate trust office of the Fiscal Agent. In case at Bearer Securities may not be issued in exchange for Registered Securities. Whenever any time the Depository acting hereunder shall resign or be removedRegistered Securities are so surrendered for exchange, the Corporation shallIssuer shall execute, within 60 days after and the delivery Fiscal Agent shall authenticate and deliver, the Registered Securities which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange will be effected upon [the notice of resignation or removalTransfer Agent or] the Fiscal Agent, as the case may be, appoint being satisfied with the documents of title and identity of the person making the request and subject to such reasonable requisitions as the Issuer may from time to time agree with [the Transfer Agents and] the Fiscal Agent.] [In the event of a successor Depository, which shall be a bank or trust company having its principal office redemption of the Securities in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticepart, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Issuer shall not be required hereunder(i) to register the transfer or exchange any Security during a period beginning at the opening of business 15 days before, and continuing until, the date notice is given identifying the Securities to be redeemed, or (ii) to register the transfer of or exchange any [Registered] Security, or portion thereof, called for redemption.] All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of Italy, evidencing the same debt, and entitled to the same benefits, as the Securities surrendered upon such registration of transfer or exchange. Such successor Depository No service charge shall be made for any registration of transfer or exchange, but Italy may authenticate require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Receipts in Issuer, the name Fiscal Agent and any agent of the predecessor Depository Issuer or its own the Fiscal Agent may treat the person in whose name this Security is registered as successor Depositorythe owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected by notice to the contrary. The Securities will become void unless surrendered for payment within a period of five years from the date on which the payment in respect thereof first becomes due or, if the full amount of the money has not been received by a Fiscal Agent on or Table of Contents prior to such due date, the date on which, the full amount of such money having been so received, notice to that effect shall have been given to the holders.

TABLE OF CONTENTS. The Depository may the Other Company Representations (i.e., those representations and warranties of the Company that are not contained in Section 5.02(c) of the Merger Agreement and that are not Specified Company Representations), disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any Other Company Representations that are made only as of a specified date, which need only to be true as of such specified date); except that the Other Company Representations as thus modified shall be deemed true at any time unless the individual or aggregate impact of the failure to be removed so true would have or reasonably be expected to have a Company Material Adverse Effect; • Parent shall have received a certificate signed on behalf of the Company by a senior Executive Officer of the Company regarding the accuracy of the representations and warranties of the Company to the above-specified standards, as applicable; • the Company shall have delivered to Parent a certificate of the Company executed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery Secretary of the notice Company, dated as of resignation the Acceptance Time, certifying: (i) the approval of the Company Board of the Merger Agreement and the transactions contemplated thereby, (ii) the certificate of incorporation and bylaws (or removalsimilar governing documents) of the Company and each of its Subsidiaries, as (iii) the case may bename, appoint title, incumbency and signatures of the officers authorized to execute the Merger Agreement and the other agreements contemplated thereby to which the Company is a successor Depositoryparty, which shall be a bank and (iv) any and all Company Board, committee and stockholder resolutions, consents or trust company having its principal office in other actions taken by the United States Company Board, any committee of America the Company Board or the stockholders between the date of the Merger Agreement and having a combined capital and surplus of at least $50,000,000. If no successor Depository the Acceptance Time; • the Company shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, performed in all material respects its obligations under the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Merger Agreement, and such predecessor, upon payment of all sums due it and Parent shall have received a certificate signed on the written request behalf of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor Company by a list senior Executive Officer of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which Company to the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof foregoing effect; • there shall not be required hereunder. Such successor Depository may authenticate instituted, pending or overtly threatened any Proceeding (which is defined to include any suit, claim, action, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel) initiated by any Governmental Authority: • challenging or seeking to make illegal, delay materially or otherwise directly or indirectly restrain or prohibit the Receipts in Offer, the name acceptance for payment by Purchaser of the predecessor Depository Shares tendered pursuant to the Offer or the consummation of the Merger or seeking to obtain material damages in connection therewith; • seeking to restrain or prohibit Parent’s ownership or operation (or that of its own name Affiliates) of all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as successor Depository.a whole, or of Parent and its Affiliates, taken as a whole, or to compel Parent or any of its Affiliates to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or hold separate all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole; • seeking, directly or indirectly, to impose or confirm material limitations on the ability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of Shares or any shares of common stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to the Company’s stockholders; or • seeking in connection with the Offer, the Merger and the other transactions contemplated by the Merger Agreement to require divestiture by Parent, Purchaser or any of Parent’s other Affiliates of any Equity Interests (which are defined to include any share, capital stock, partnership, member or similar interest in any entity, and any option, warrant, right or security convertible, exchangeable or exercisable therefor);

TABLE OF CONTENTS. Right Certificates by first-class mail. The Depository Company may at remove the Rights Agent or any time be removed by the Corporation by successor Rights Agent upon 30 days’ notice of such removal delivered in writing, mailed to the Depository, such removal to take effect upon the appointment of a Rights Agent or successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removalRights Agent, as the case may be, and to each transfer agent for the Common Shares or Preferred Shares by registered or certified mail, and to the holders of the Right Certificates by first-class mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor Depository, which shall be a bank or trust company having its principal office in to the United States of America and having a combined capital and surplus of at least $50,000,000Rights Agent. If no successor Depository the Company shall have been so appointed and have accepted fail to make such appointment within 60 a period of 30 days after delivery giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Right Certificate (who shall, with such notice, submit his Right Certificate for inspection by the resigning or removed Depository Company), then the registered holder of any Right Certificate may petition apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Depository. Every successor Depository Rights Agent, whether appointed by the Company or by such a court, shall execute be either (a) a corporation, business trust or limited liability company organized and deliver doing business under the laws of the United States or of any other state of the United States which is authorized under such laws to its predecessor exercise corporate trust or stock transfer powers and is subject to supervision or examination by federal or state authority and which has at the Corporation an instrument in writing accepting time of its appointment hereunderas Rights Agent a combined capital and surplus of at least $50 million or (b) a direct or indirect wholly owned Subsidiary of such an entity or its wholly-owning parent. After appointment, the successor Rights Agent shall be vested with the same powers, rights, duties and thereupon such successor Depository, responsibilities as if it had been originally named as Rights Agent without any further act or deed, ; but the predecessor Rights Agent shall become fully vested with all deliver and transfer to the rights, powers, duties and obligations of its predecessor and for all purposes shall be successor Rights Agent any property at the Depository under this Agreementtime held by it hereunder, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment the Company shall file notice thereof in writing with the predecessor Rights Agent and each transfer agent for the Common Shares or Preferred Shares, and mail a notice thereof in writing to such successor all rights and powers the registered holders of such predecessor hereunderthe Right Certificates. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall duly assign, transfer and deliver all right, title and interest in not affect the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list legality or validity of the Record Holders resignation or removal of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into the Rights Agent or with which the Depository may be merged, consolidated or converted shall be appointment of the successor of Rights Agent, as the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository case may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorybe.

TABLE OF CONTENTS. The Depository may at any time be removed by Subsidiaries’ board of directors or other governing body, as applicable, and (other than (i) the Corporation by notice filing with the SEC of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign reports under Section 13(a) or be removed, the Corporation shall, within 60 days after the delivery 15(d) of the notice of resignation or removal, Exchange Act as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office required in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested connection with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessorthe Transaction Documents, upon payment of all sums due it and on the written request Business Combination Agreement or the transactions contemplated hereby or thereby, (ii) compliance with the listing requirements of the CorporationPrincipal Market (including, shall promptly execute without limitation, filing a listing application with the Principal Market with respect to the Conversion Shares and deliver an instrument transferring the Warrant Shares), (iii) the filing with the SEC of one or more Registration Statements in accordance with the requirements of the Registration Rights Agreement and any filings as may be required by any state securities agencies and (iv) stockholder approvals required pursuant to the Business Combination Agreement to permit the consummation of the Business Combination (collectively, the “Required Approvals”), no further filing, consent or authorization is required by the Company, its Subsidiaries, their respective boards of directors or their stockholders or other governing body. This Agreement has been, and the other Transaction Documents to which it is a party will be prior to or upon the Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company (assuming that this Agreement and the other Transaction Documents to which the Company is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party thereto (if any)), enforceable against the Company in accordance with its respective terms, except as such successor all enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and powers of remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law. Prior to the Closing, the Transaction Documents to which each Subsidiary is a party will be duly executed and delivered by each such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successorSubsidiary, and shall deliver constitute the legal, valid and binding obligations of each such Subsidiary (assuming that this Agreement and the other Transaction Documents to which such successor Subsidiary is or will be a list of party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the Record Holders of all outstanding Receipts and other Persons party thereto (if any)), enforceable against each such recordsSubsidiary in accordance with their respective terms, books and other information in its possession relating thereto. Any entity into or with which the Depository except as such enforceability may be mergedlimited by general principles of equity or applicable bankruptcy, consolidated insolvency, reorganization, moratorium, liquidation or converted shall similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be the successor of the Depository without the execution limited by federal or filing of any document or any further act, and notice thereof shall not be required hereunderstate securities law. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.“

TABLE OF CONTENTS. The Depository may at any time be removed Shares held either in voting trust or by the Corporation by notice a nominee on behalf of such removal delivered person, and (iii) “person” are to an individual, corporation, partnership, unincorporated association or other entity. Under Section 262, where a merger is approved pursuant to Section 251(h) of the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedDGCL, the Corporation shallcorporation, before the effective date of the merger, or the surviving corporation, within 60 10 days after the delivery effective date of such merger, must notify each of its stockholders who is entitled to appraisal rights of the approval of the merger and that appraisal rights are available, and must include in the notice either a copy of resignation Section 262 or removalinformation directing the stockholders to a publicly available electronic resource at which Section 262 may be accessed without subscription or cost. The Schedule 14D-9 constitutes Morphic’s notice to the holders of Shares that appraisal rights are available in connection with the Merger, and the full text of Section 262 may be accessed without subscription or cost at the following publicly available website: xxxxx://xxxxxxx.xxxxxxxx.xxx/title8/c001/sc09/index.html#262. In connection with the Merger, any person who wishes to exercise appraisal rights, or who wishes to preserve his, her or its right to do so, should review the following discussion and Section 262 carefully. Failure to strictly comply with the requirements of Section 262 in a timely and proper manner may result in the loss of appraisal rights under the DGCL. Moreover, because of the complexity of the procedures for exercising the right to seek appraisal, any person wishing to exercise such appraisal rights should seek the advice of legal counsel. A person who loses his, her or its appraisal rights will be entitled to receive the Offer Price. Persons who validly tender and do not validly withdraw Shares in the Offer will not be entitled to exercise appraisal rights with respect thereto, but, instead, upon the terms and subject to the conditions of the Offer, will receive the Offer Price. The statutory rights of appraisal granted by Section 262 require strict compliance with the procedures set forth in Section 262. Stockholders and beneficial owners wishing to exercise the right to seek an appraisal of their Shares must satisfy all of the following conditions: • within the later of (i) the consummation of the Offer, which occurs when Purchaser has irrevocably accepted for payment Shares tendered into the Offer following the Expiration Time, and (ii) 20 days after the date of mailing of the Schedule 14D-9 (which date of mailing is July 19, 2024), deliver to Morphic (as the Surviving Corporation) at the address indicated below a written demand for appraisal of such person’s Shares, which demand must reasonably inform Morphic of the identity of the stockholder or beneficial owner and that such stockholder or beneficial owner intends thereby to demand appraisal of such stockholder’s or beneficial owner’s Shares; • not tender such stockholder’s or beneficial owner’s Shares in the Offer (or otherwise waive such person’s appraisal rights); • continuously hold of record or beneficially own, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticeapplicable, the resigning Shares from the date on which the written demand for appraisal is made through the Effective Time; and • comply with the procedures of Section 262 for perfecting appraisal rights thereafter. Beneficial owners demanding appraisal must also fulfill the additional requirements of subsection (d)(3) of Section 262. Notwithstanding a stockholder’s or removed Depository may petition any court beneficial owner’s compliance with the foregoing requirements, the Delaware Court of competent jurisdiction for Chancery will dismiss the appointment of a successor Depository. Every successor Depository shall execute and deliver appraisal proceedings as to its predecessor and all holders who are otherwise entitled to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the appraisal rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessorholders will effectively lose their appraisal rights, upon payment unless (a) the total number of all sums due it and on the written request Shares entitled to appraisal rights exceeds 1% of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in outstanding Shares eligible for appraisal or (b) the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list value of the Record Holders Merger Consideration for such total number of all outstanding Receipts Shares entitled to appraisal rights exceeds $1 million (conditions (a) and such records, books and other information (b) in its possession relating theretothis sentence are referred to as the “ownership threshold”). Any entity into or with which If the Depository may be merged, consolidated or converted shall be the successor Merger is consummated pursuant to Section 251(h) of the Depository without DGCL, on or within 10 days after the execution or filing of any document or any further act, and notice thereof shall not be Effective Time (as required hereunder. Such successor Depository may authenticate the Receipts in the name by Section 262(d)(2) of the predecessor Depository or its own name as successor Depository.DGCL), the Surviving Corporation will deliver an

TABLE OF CONTENTS. The Depository may at Reliance upon Certificates, Counsel and Agents Owner Trustee shall incur no liability to anyone in acting in good faith in reliance upon and in accordance with any time signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be removed genuine and reasonably believed by it to be signed by the Corporation proper party or parties. Unless other evidence in respect thereof is specifically prescribed in this Trust Agreement, any request, direction, order or demand of Owner Participant or Lessee mentioned in this Trust Agreement or in any of the other Owner Trustee Agreements shall be sufficiently evidenced by notice written instruments signed by the Chairman of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedBoard, the Corporation shallPresident, within 60 days after any Vice President or any other officer and in the delivery name of the notice of resignation Owner Participant or removalLessee, as the case may be, appoint . Owner Trustee may accept a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment copy of a successor Depositoryresolution of the Board of Directors or Executive Committee of Lessee, certified by the Secretary or an Assistant Secretary of Lessee as duly adopted and in full force and effect, as conclusive evidence that such resolution has been duly adopted by said Board of Directors or Executive Committee and that the same is in full force and effect. Every successor Depository shall execute and deliver As to its predecessor and any fact or matter the manner of ascertainment of which is not specifically described in this Trust Agreement, Owner Trustee may, absent Actual Knowledge to the Corporation an instrument in writing accepting its appointment hereundercontrary, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be rely on a certificate signed by the Depository under this AgreementChairman of the Board, the President, any Vice President or any other officer of Lessee, and the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of Lessee, as to such fact or matter, and such predecessorcertificate shall constitute full protection to Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon and in accordance therewith. In the administration of trusts under this Trust Agreement, upon payment of all sums due it and on the written request Owner Trustee may execute any of the Corporationtrusts or powers and perform its powers and duties under this Trust Agreement directly or through agents or attorneys and may, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in at the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list expense of the Record Holders of all outstanding Receipts and such recordsTrust Estate, books consult with counsel, accountants and other information in its possession relating theretoskilled persons to be selected and employed by it. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Owner Trustee shall not be required hereunder. Such successor Depository may authenticate liable for anything done, suffered or omitted in good faith by it in accordance with the Receipts in the name advice or opinion of the predecessor Depository any such counsel, accountants or its own name as successor Depositoryother skilled persons.

TABLE OF CONTENTS. The Depository may Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and surrender of this Class [I-A-RU] [I-A-RL] Certificate at any time be removed the Corporate Trust Office or the office or agency maintained by the Corporation by notice Trustee in New York, New York. No transfer of a Class [I-A-RU] [I-A-RL] Certificate shall be made unless the Trustee shall have received either (i) a representation [letter] from the transferee of such removal delivered Certificate, acceptable to and in form and substance satisfactory to the DepositoryTrustee, to the effect that such removal transferee is not an employee benefit plan subject to take effect upon the appointment Section 406 of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign ERISA or be removed, the Corporation shall, within 60 days after the delivery Section 4975 of the notice Code, nor a person acting on behalf of resignation or removal, as the case may be, appoint a successor Depositoryany such plan, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof representation letter shall not be required hereunder. Such successor Depository may authenticate an expense of the Receipts Trustee or the Master Servicer, (ii) if the purchaser is an insurance company, a representation that the purchaser is an insurance company which is purchasing such Certificate with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificate are covered under PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the predecessor Depository Code (or comparable provisions of any subsequent enactments), or a trustee of any such plan or any other person acting on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and the Master Servicer to the effect that the purchase or holding of such Class [I-A-RU] [I-A-RL] Certificate will not result in the assets of the Trust Fund being deemed to be “plan assets” and subject to the prohibited transaction provisions of ERISA and the Code and will not subject the Trustee to any obligation in addition to those undertaken in the Agreement, which Opinion of Counsel shall not be an expense of the Trustee or the Master Servicer. [Such representation shall be deemed to have been made to the Trustee by the Transferee’s acceptance of this Class [I-A-RU] [I-A-RL] Certificate and by a beneficial owner’s acceptance of its own name interest in such Certificate.] Notwithstanding anything else to the contrary herein, any purported transfer of a Class [I-A-RU] [I-A-RL] Certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the Trustee as successor Depositorydescribed above shall be void and of no effect. Each Holder of this Class [I-A-RU] [I-A-RL] Certificate will be deemed to have agreed to be bound by the restrictions of the Agreement, including but not limited to the restrictions that (i) each person holding or acquiring any Ownership Interest in this Class [I-A-RU] [I-A-RL] Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this Class [I-A-RU] [I-A-RL] Certificate may be transferred without delivery to the Trustee of (a) a transfer affidavit of the proposed transferee and (b) a transfer certificate of the transferor, each of such documents to be in the form described in the Agreement, (iii) each person holding or acquiring any Ownership Interest in this Class [I-A-RU] [I-A-RL] Certificate must agree to require a transfer affidavit and to deliver a transfer certificate to the Trustee as required pursuant to the Agreement, (iv) each person holding or acquiring an Ownership Interest in this Class [I-A-RU] [I-A-RL] Certificate must agree not to transfer an Ownership Interest in this Class [I-A-RU] [I-A-RL] Certificate if it has actual knowledge that the proposed transferee is not a Permitted Transferee and (v) any attempted or purported transfer of any Ownership Interest in this Class [I-A-RU] [I-A-RL] Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee.

TABLE OF CONTENTS. The Depository Any requirement of notice under this Indenture may at any time be removed waived by the Corporation by Person entitled to such notice of before or after such removal delivered notice is required to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreementgiven, and such predecessorwaivers shall be filed with the Trustee. Failure to give a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is given in the manner provided above, upon payment it is duly given, whether or not the addressee receives it. In respect of all sums due it and on the written request this Indenture, none of the CorporationTrustee nor any Agent shall have any duty or obligation to verify or confirm that the Person sending instructions, shall promptly execute and deliver directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission (an instrument transferring to such successor all rights and powers “Instruction”). If the Trustee or Agent acts upon an Instruction, the Trustee’s or Agent’s, as applicable, understanding of such predecessor hereunderInstructions shall be deemed controlling. None of the Trustee nor any Agent shall have any liability for any losses, shall duly assignliabilities, transfer and deliver costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with Instructions notwithstanding such Instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all rightrisks arising out of the use of electronic methods to submit Instructions to the Trustee and/or any Agent, title and interest in including without limitation the Stock and risk of the Trustee and/or any moneys held hereunder to such successorAgent acting on unauthorized Instructions, and shall deliver to such successor a list the risk of interception and misuse by third parties. The Issuer (i) acknowledges that it is fully informed of the Record Holders protections and risks associated with the various methods of all outstanding Receipts transmitting Instructions and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository that there may be mergedmore secure methods of transmitting Instructions than the method(s) selected by the Issuer, consolidated (ii) acknowledges that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances, and (iii) agrees to notify the Trustee and Agent immediately upon learning of any compromise or converted shall be the successor unauthorized use of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorysecurity procedures.

TABLE OF CONTENTS. The Depository may at In the event that the Issuing Bank makes any time be removed by L/C Disbursement and the Corporation by notice of Borrowers shall not have reimbursed such removal delivered amount in full to the Depository, such removal Issuing Bank pursuant to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedSection 2.6(d), the Corporation shall, within 60 days after Issuing Bank shall promptly notify the delivery of the notice of resignation or removal, as the case may be, appoint a successor DepositoryAdministrative Agent, which shall be a bank or trust company having its principal office promptly notify each Lender of such failure, and each Lender shall promptly and unconditionally pay to the Administrative Agent for the account of the Issuing Bank the amount of such Lender’s Commitment Percentage of such unreimbursed payment in the United States of America dollars and having a combined capital and surplus of at least $50,000,000in same day funds. If no successor Depository the Issuing Bank so notifies the Administrative Agent, and the Administrative Agent so notifies the Lenders prior to 11:00 a.m., Boston time, on any Business Day, each such Lender shall have been so appointed and have accepted appointment within 60 days after delivery make available to the Issuing Bank such Lender’s Commitment Percentage of the amount of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depositorypayment on such Business Day in same day funds. Every successor Depository shall execute and deliver to its predecessor If and to the Corporation an instrument in writing accepting extent such Lender shall not have so made its appointment hereunderCommitment Percentage of the amount of such payment available to the Issuing Bank, and thereupon such successor DepositoryLender agrees to pay to the Issuing Bank, without forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Issuing Bank at the Federal Funds Effective Rate. Each Lender agrees to fund its Commitment Percentage of such unreimbursed payment notwithstanding a failure to satisfy any further act applicable lending conditions or deedthe provisions of Section 2.1 or Section 2.6, or the occurrence of the Termination Date. The failure of any Lender to make available to the Issuing Bank its Commitment Percentage of any payment under any Letter of Credit shall become fully vested with all the rights, powers, duties and obligations neither relieve any Lender of its predecessor and obligation hereunder to make available to the Issuing Bank its Commitment Percentage of any payment under any Letter of Credit on the date required, as specified above, nor increase the obligation of such other Lender. Whenever any Lender has made payments to the Issuing Bank in respect of any reimbursement obligation for all purposes any Letter of Credit, such Lender shall be the Depository under this Agreemententitled to share ratably, based on its Commitment Percentage, in all payments and such predecessor, upon payment of all sums due it and collections thereafter received on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers account of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryreimbursement obligation.

TABLE OF CONTENTS. The Depository may at any time be removed by If, on or before the Corporation by notice of such removal delivered to Expiration Date, Purchaser increases the Depositoryconsideration being paid for Shares accepted for payment in the Offer, such removal increased consideration will be paid to take effect upon all stockholders whose Shares are purchased in the appointment of a successor Depository hereunder and its acceptance of Offer, whether or not such appointment as hereinafter provided. In case at any time Shares were tendered before the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery announcement of the notice increase in consideration. Purchaser expressly reserves the right (a) not to accept for payment or (subject to any applicable rules and regulations of resignation the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and (b) to delay the acceptance for payment of, or removal(subject to any such rules and regulations) the payment for, as the case may beany tendered Shares, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument extent permitted by the Merger Agreement, terminate the Offer (x) upon the termination of the Merger Agreement or (y) at any scheduled Expiration Date (subject to any extensions of the Offer pursuant to the Merger Agreement) or amend the Offer if (i) the Minimum Condition has not been satisfied as of one minute following 11:59 p.m. New York time on such Expiration Date or (ii) any of the other conditions to the Offer have not been satisfied or waived (to the extent waivable) in writing accepting its appointment hereunderby Amgen. See Section 15—“Conditions of the Offer.” Under certain circumstances we may terminate the Merger Agreement and the Offer. See Section 14—“The Merger Agreement; Other Agreements.” As promptly as practicable following the consummation of the Offer and subject to the satisfaction or, and thereupon such successor Depositoryto the extent permitted by applicable law, without any further act or deed, shall become fully vested with all waiver of certain conditions set forth in the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Merger Agreement, Five Prime, Purchaser and such predecessorAmgen will consummate the Merger without a meeting of the stockholders of Five Prime in accordance with Section 251(h) of the DGCL. Five Prime has provided Purchaser or its designee with Five Prime’s stockholder lists and security position listings for the purpose of disseminating this Offer to Purchase, upon payment the Letter of all sums due it Transmittal and related materials to holders of Shares. This Offer to Purchase and the related Letter of Transmittal will be mailed by or on behalf of Purchaser to record holders of Shares whose names appear on Five Prime’s stockholder lists and will be furnished by or on behalf of Purchaser to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the written request stockholder lists or, if applicable, who are listed as participants in a clearing agency’s security position listing, for subsequent transmittal to beneficial owners of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryShares.

TABLE OF CONTENTS. The Depository If the Agent for any reason fails to remit the full amount of any drawing under any Letter of Credit to the L/C Issuer in immediately available funds on or before 1:00 p.m. (Eastern Standard Time) on the fifth Business Day following the Honor Date, the L/C Issuer may at any time notify each Lender of the Honor Date, the Unreimbursed Amount and the amount of each Lender’s Pro Rata Share thereof. In such event, the Borrower shall be removed deemed to have requested an Advance to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth herein with respect to Advances. Any notice given by the Corporation L/C Issuer pursuant to this Section may be given by telephone if immediately confirmed in writing. Each Lender (including the Lender acting as L/C Issuer) shall upon any notice of such removal delivered pursuant to this Section make funds available to the DepositoryL/C Issuer at the L/C Issuer’s office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 2:00 p.m. on the Business Day specified in such notice (which Business Day must be at least one Business Day after notice) by the L/C Issuer, whereupon, subject to the provisions of this subparagraph, each Lender that so makes funds available shall be deemed to have made an Advance to the Borrower in such removal amount. With respect to take effect upon any Unreimbursed Amount that is not fully refinanced by an Advance because the appointment conditions set forth herein cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of a successor Depository hereunder the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and its acceptance of such appointment as hereinafter providedpayable on demand (together with interest) and shall bear interest at the Default Rate. In case at any time such event, each Lender’s payment to the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which L/C Issuer pursuant to this Section 12.3(E) shall be a bank or trust company having its principal office deemed payment in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations respect of its predecessor participation in such L/C Borrowing and for all purposes shall be the Depository constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this AgreementSection. Notwithstanding the foregoing, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof this Section 12.3(E) shall not be required hereunder. Such successor Depository may authenticate applicable if the Receipts in Agent is the name of the predecessor Depository or its own name as successor DepositoryL/C Issuer.

TABLE OF CONTENTS. The Depository may at any time be removed by If, in the Corporation by notice course of such removal delivered to review, the DepositoryTrustee or the Custodian, such removal to take effect upon on behalf of the appointment Trustee finds any document constituting a part of a successor Depository hereunder and its acceptance Mortgage File which does not meet the requirements of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedSection 2.1, the Corporation shall, within 60 days after Trustee shall list or shall cause the delivery of the notice of resignation or removal, Custodian to list such as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office an exception in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository Final Certification; provided, however that neither the Trustee nor the Custodian shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition make any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver determination as to its predecessor and whether (i) any endorsement is sufficient to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any assignment is in recordable form or is sufficient to effect the assignment of and transfer to the assignee thereof under the mortgage to which the assignment relates. The Seller shall promptly correct or cure such defect within 90 days from the date it was so notified of such defect and, if the Seller does not correct or cure such defect within such period, the Seller shall either (a) substitute for the related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be accomplished in the Stock manner and subject to the conditions set forth in Section 2.3, or (b) purchase such Mortgage Loan from the Trustee within 90 days from the date the Seller was notified of such defect in writing at the Purchase Price of such Mortgage Loan; provided, however, that in no event shall such substitution or purchase occur more than 540 days from the Closing Date, except that if the substitution or purchase of a Mortgage Loan pursuant to this provision is required by reason of a delay in delivery of any documents by the appropriate recording office, and there is a dispute between either the Master Servicer or the Seller and the Trustee over the location or status of the recorded document, then such substitution or purchase shall occur within 720 days from the Closing Date. The Trustee shall deliver written notice to each Rating Agency and MBIA within 270 days from the Closing Date indicating each Mortgage Loan (a) which has not been returned by the appropriate recording office or (b) as to which there is a dispute as to location or status of such Mortgage Loan. Such notice shall be delivered every 90 days thereafter until the related Mortgage Loan is returned to the Trustee or the Custodian on its behalf. Any such substitution pursuant to (a) above or purchase pursuant to (b) above shall not be effected prior to the delivery to the Trustee and MBIA of the Opinion of Counsel required by Section 2.5 hereof, if any, and any moneys held hereunder substitution pursuant to (a) above shall not be effected prior to the additional delivery to the Trustee and MBIA of a Request for Release substantially in the form of Exhibit L. No substitution is permitted to be made in any calendar month after the Determination Date for such successormonth. The Purchase Price for any such Mortgage Loan shall be deposited by the Seller in the Certificate Account on or prior to the Distribution Account Deposit Date for the Distribution Date in the month following the month of repurchase and, upon receipt of such deposit and certification with respect thereto in the form of Exhibit M hereto, the Trustee shall cause the Custodian to release the related Mortgage File to the Seller and shall execute and deliver at the Seller’s request such instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to vest in the Seller, or a designee, the Trustee’s interest in any Mortgage Loan released pursuant hereto. The Trustee shall retain or shall cause the Custodian to retain possession and custody of each Mortgage File in accordance with and subject to the terms and conditions set forth herein. The Master Servicer shall promptly deliver to such successor a list of the Record Holders of all outstanding Receipts and such recordsTrustee or the Custodian on its behalf, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without upon the execution or filing receipt thereof, the originals of any document such other documents or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate instruments constituting the Receipts in Mortgage File as come into the name possession of the predecessor Depository Master Servicer from time to time. It is understood and agreed that the obligation of the Seller to substitute for or its own name as successor Depositoryto purchase any Mortgage Loan which does not meet the requirements of Section 2.1 above shall constitute Table of Contents the sole remedy respecting such defect available to the Trustee, the Depositor and any Certificateholder against the Seller.

TABLE OF CONTENTS. The Depository For a withdrawal to be effective, a written or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase and must specify the name of the person who tendered the Shares to be withdrawn, the number and type of Shares to be withdrawn and the name of the registered holder of the Shares to be withdrawn, if different from the name of the person who tendered the Shares. If certificates representing Shares have been delivered or otherwise identified to the Depositary, then, before the physical release of such certificates, the tendering stockholder must also submit the serial numbers shown on the particular certificates evidencing such Shares and the signature on the notice of withdrawal must be guaranteed by an Eligible Institution. If Shares have been tendered according to the procedures for book-entry transfer as set forth in Section 3—"Procedure for Tendering Shares," any notice of withdrawal must also specify the name and number of the account at DTC to be credited with the withdrawn Shares and otherwise comply with DTC's procedures. Withdrawals of tenders of Shares may not be rescinded, and any Shares validly withdrawn will no longer be considered validly tendered for purposes of the Offer. However, withdrawn Shares may be retendered by following one of the procedures described in Section 3—"Procedure for Tendering Shares" at any time prior to the Offer Expiration Time. All questions as to the form and validity (including time of receipt) of notices of withdrawal will be removed determined by Purchaser, in its reasonable discretion, which determination will be final and binding. None of Purchaser, Parent, the Corporation by Depositary, the Information Agent, the Company or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such removal delivered to notification. Notwithstanding the Depositoryforegoing, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery stockholders of the notice of resignation or removal, as the case Company may be, appoint challenge a successor Depository, which shall be determination made by Purchaser in a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment and a final, non-appealable order or judgment of a successor Depositorycourt of competent jurisdiction will be final and binding on all parties. Every successor Depository shall execute and deliver The method for delivery of any documents related to its predecessor and a withdrawal is at the risk of the withdrawing stockholder. Any documents related to a withdrawal will be deemed delivered only when actually received by the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations Depositary at one of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and addresses set forth on the written request back cover of the Corporationthis Offer to Purchase. If delivery is by mail, shall promptly execute and deliver an instrument transferring registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryensure timely delivery.

TABLE OF CONTENTS. The Depository may at any time On or before the Purchase Date, the Issuers shall to the extent lawful, (i) accept for payment, on a pro rata basis in accordance with this Indenture to the extent necessary, the Net Cash Proceeds Amount or the Excess Loss Amount, as applicable, of (A) Notes or portions thereof properly tendered pursuant to the Offer to Purchase and (B) properly tendered Pari Passu Indebtedness, or if less than the Net Cash Proceeds Amount or the Excess Loss Amount, as applicable, has been tendered, all Notes and Pari Passu Indebtedness properly tendered, (ii) deposit with the Paying Agent an amount equal to the Purchase Price, plus accrued and unpaid interest thereon to the Purchase Date in respect of all Notes or portions thereof so tendered and accepted for repurchase and (iii) deliver or cause to be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon Trustee the appointment Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of a successor Depository hereunder and its acceptance of such appointment as hereinafter providedNotes or portions thereof being repurchased by the Issuers. In The Paying Agent shall promptly (but in any case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 not later than five days after the delivery Purchase Date) mail to each Holder of Notes so repurchased the amount due in connection with such Notes, and the Issuers shall promptly issue a new Note, and the Trustee, upon written request from the Issuers in the form of an Officers’ Certificate and authentication order shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion to the Holder thereof; provided, that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Issuers shall publicly announce the results of each Offer to Purchase on or as soon as practicable after the applicable Purchase Date. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest to the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such record date. The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the notice Notes pursuant to an Offer to Purchase. To the extent that the provisions of resignation any securities laws or removal, as regulations conflict with the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in provisions of the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticeIndenture, the resigning or removed Depository may petition any court of competent jurisdiction for Issuers will comply with the appointment of a successor Depository. Every successor Depository shall execute applicable securities laws and deliver to its predecessor regulations and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts deemed to have breached their obligations described in the name of the predecessor Depository or its own name as successor DepositoryIndenture by virtue thereof.

TABLE OF CONTENTS. The Depository may Prior to the spin-off of a subsidiary, CMI shall change the name of such subsidiary to a name that does not include “XXXXXXX.” In the event CMI fails to do so, this Agreement shall thereafter automatically be a CMI JD LICENSE. (o) [RESERVED] (p) This Agreement shall be a CMI JD LICENSE at any time be removed in the event that one or more of the following events has occurred and is continuing: (i) CMI, NEWCO, or any subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any MATERIAL INDEBTEDNESS, when and as the same shall become due, subject to any applicable grace period and any waivers granted during the grace period by the Corporation by applicable creditor; (ii) any event or condition occurs that results in any MATERIAL INDEBTEDNESS becoming due prior to its scheduled maturity; and (iii) any event or condition occurs that enables or permits (with or without the passage of time, the giving of notice of such removal delivered or both, but subject to the Depositoryapplicable grace period and any waivers granted during the grace period by the applicable creditor) the agent or agents, such removal creditor, lender or group of creditors or lenders under the SENIOR CREDIT AGREEMENT to take effect cause the indebtedness outstanding thereunder to become due prior to its scheduled maturity; provided, however, that upon the appointment occurrence of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removedTRIGGERING EVENT, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and or the CMI JD LICENSE portion of this Agreement that is in place at such predecessortime, shall thereafter be a THIRD PARTY JD LICENSE. (q) Except as otherwise set forth in Section 18 hereof, upon payment termination of this Agreement: (i) Except as otherwise permitted pursuant to Section 30 hereof, CMI shall cease all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successoruse of, and shall not thereafter adopt, use, register or otherwise claim or have rights in, any LICENSED BRANDS, HOUSE MARKS, TRADE NAMES, COMBINATION BRANDS, LICENSED TECHNOLOGY and LICENSED PRODUCT MATERIALS, including use in advertising or promotion or on letterhead, business cards, invoices, etc., and, except as provided in Section 18(u), all rights granted to CMI pursuant to this Agreement shall revert to SCJ; (ii) All money credits of either party which are due the other shall promptly be paid and accounted for; (iii) All sublicenses granted by CMI hereunder shall terminate and CMI shall notify its sublicensees of such termination immediately following receipt of notice of termination of this Agreement from SCJ; (iv) CMI shall immediately notify and accordingly terminate all contract manufacturing agreements and shall promptly deliver to such successor a list SCJ all information, formula cards, processing instructions, correspondence and other data relating to the manufacture, processing or packaging of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further actSCJ LICENSED PRODUCTS, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.36

TABLE OF CONTENTS. the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by or on behalf of it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s attorneys, accountants, experts and such other professionals as the Trustee deems necessary, advisable or appropriate. The Depository may at Issuers and the Guarantors shall jointly and severally indemnify the Trustee and any time be removed predecessor Trustee against any and all losses, liabilities, claims, damages or expenses, including taxes (other than taxes based upon, measured by or determined by the Corporation income of the Trustee), incurred by notice it arising out of or in connection with the acceptance or administration of its duties under this Indenture (including its duties under Section 9.6), including the costs and expenses of enforcing this Indenture or any Guarantee against the Issuers or a Guarantor (including this Section 7.7) and defending itself against or investigating any claim (whether asserted by the Issuers, any Guarantor, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or willful misconduct. The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the Issuers of their obligations hereunder. The Issuers shall defend any claim or threatened claim asserted against the Trustee, and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuers shall pay the reasonable fees and expenses of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter providedcounsel. In case at The Issuers need not pay for any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositorysettlement made without their consent, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof consent shall not be required hereunderunreasonably withheld, conditioned or delayed. The obligations of the Issuers under this Section 7.7 shall survive the resignation or removal of the Trustee, the satisfaction and discharge of this Indenture and the termination of this Indenture. The obligations of the Issuers under this Section 7.7 shall not be subordinated to the payment of Senior Debt pursuant to Article X of the Intercreditor Agreement. To secure the Issuers’ payment obligations in this Section 7.7, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal, Redemption Price or Purchase Price of, or interest on, particular Notes. Such successor Depository may authenticate Lien shall survive the Receipts in the name resignation or removal of the predecessor Depository Trustee, the satisfaction and discharge of this Indenture and the termination of this Indenture. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(6) or (7) occurs, the expenses and the compensation for the services (including the fees and expenses of its own name as successor Depositoryagents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

TABLE OF CONTENTS. (a) The Depository may at any time be removed Borrower is a corporation duly organized, validly existing and in good standing under the law of the State of Delaware. (b) The execution, delivery and performance by the Corporation Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower's corporate powers, have been duly authorized by all necessary corporate action, and do not and will not contravene, or cause or constitute a violation of, any provision of law or regulation or any provision of the Borrower's charter or by-laws or result in the breach of, or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon any of the properties, revenues, or assets of the Borrower pursuant to, any indenture or other material agreement or instrument to which the Borrower is a party or by which the Borrower or its property may be bound or affected. (c) No authorization, consent, approval (including any exchange control approval), license or other action by, and no notice to or filing or registration with, any governmental authority, administrative agency or regulatory body or any other third party (including any creditor) is required for the due execution, delivery and performance by the Borrower of such removal this Agreement or the Notes to be delivered by it. (d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the Depositoryenforcement of remedies, such removal to take effect upon applicable bankruptcy, reorganization, moratorium and similar laws affecting creditors rights generally). (e) The Consolidated balance sheet of the appointment of a successor Depository hereunder Borrower and its acceptance Subsidiaries as at December 31, 2003, and the related Consolidated statements of such appointment as hereinafter provided. In case at any time income and cash flows of the Depository acting hereunder shall resign or be removedBorrower and its Subsidiaries for the fiscal year then ended (together with the notes to the financial statements of the Borrower and its Consolidated Subsidiaries), accompanied by an opinion of Ernst & Young LLP, independent public accountants, the Corporation shall, within 60 days after the delivery Consolidated financial condition of the notice Borrower and its Subsidiaries as at such date and the Consolidated results of resignation the operations of the Borrower and its Subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change, except as otherwise publicly disclosed. (f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or removalproceeding, as including, without limitation, any Environmental Action, affecting the case may beBorrower or any of its Subsidiaries before any court, appoint governmental agency or arbitrator that (i) could be reasonably likely to have a successor DepositoryMaterial Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, which shall be a bank validity or trust company having its principal office enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, and there has been no material adverse change in the United States status, or financial effect on the Borrower or on the Borrower and its Subsidiaries taken as a whole, of America and having a combined capital and surplus the Disclosed Litigation from that described on Schedule 3.01(b) hereto. (g) Neither the Borrower nor its Subsidiaries are engaged in the business of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction extending credit for the appointment purpose of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to purchasing or carrying margin stock (within the Corporation an instrument in writing accepting its appointment hereundermeaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and thereupon such successor Depository, without no proceeds of any further act Advance will be used to purchase or deed, shall become fully vested with all carry any margin stock or to extend credit to others for the rights, powers, duties and obligations purpose of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request purchasing or carrying any margin stock. Following application of the Corporationproceeds of each Advance, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list not more than 25 percent of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor value of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name assets (either of the predecessor Depository Borrower or of the Borrower and its own name as successor Depository.relevant Subsidiaries

TABLE OF CONTENTS. The Depository the case may at any time be removed by be) on the Corporation by notice Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such removal delivered to the Depository, Buyer or such removal to take effect upon the appointment Buyer’s designee with DTC for such number of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign Conversion Shares or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, appoint but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a successor Depository“Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Share Delivery Date and during such Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver a certificate to a Buyer and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer or such Buyer’s designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by such Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after such Trading Day such Buyer acquires (in an open market transaction, stock loan or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer is entitled to receive from the Company (a “Buy-In”), then the Company shall, within two (2) Trading Days after such Buyer’s request and in such Buyer’s discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the shares of Common Stock so acquired (including, without limitation, by any other Person in respect, or on behalf, of such Buyer) (the “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a bank certificate or trust company having its principal office in certificates or credit the United States balance account of America and having a combined capital and surplus such Buyer or such Buyer’s designee with DTC representing such number of at least $50,000,000. If no successor Depository shall shares of Common Stock that would have been so appointed delivered if the Company timely complied with its obligations hereunder and have accepted appointment within 60 days after delivery of pay cash to such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and Buyer in an amount equal to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request excess (if any) of the Corporation, shall promptly execute and deliver an instrument transferring Buy-In Price over the product of (A) such number of shares of Conversion Shares or Warrant Shares (as the case may be) that the Company was required to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list Buyer by the Required Delivery Date multiplied by (B) the lowest Closing Sale Price (as defined in the Warrants) of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which Common Stock on any Trading Day during the Depository may be merged, consolidated or converted shall be period commencing on the successor date of the Depository delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the execution Company’s failure to timely deliver certificates representing shares of Common Stock (or filing to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any document or any further actgiven Notice Failure and/or Delivery Failure, and notice thereof this Section 5(e) shall not be required hereunder. Such successor Depository may authenticate apply to the Receipts applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the name analogous sections of the predecessor Depository Note or its own name Warrant, as successor Depositoryapplicable, held by such Buyer.

TABLE OF CONTENTS. (d) The Depository may at any time be removed by the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof Rights Agent shall not be required hereunder. Such successor Depository may authenticate liable for or by reason of any of the Receipts statements of fact or recitals contained in this Agreement or in the name Right Certificates (except its countersignature thereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only. (e) The Rights Agent shall not be under any responsibility in respect of the predecessor Depository validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except its own name countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Right Certificate; nor shall it be responsible for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of the Rights (including the manner, method or amount thereof) provided for in Sections 3, 11, 13, 23 or 24 hereof, or the ascertaining of the existence of facts that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Right Certificates after receipt of a certificate pursuant to Section 12 hereof describing such change or adjustment); nor shall it by any act hereunder be deemed to make any representation or warranty as successor Depositoryto the authorization or reservation of any Preferred Shares to be issued pursuant to this Agreement or any Right Certificate or as to whether any Preferred Shares will, when issued, be validly authorized and issued, fully paid and nonassessable. (f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement. (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Secretary or the Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken or omitted and the Rights Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall not be less than three Business Days after the date indicated in such application unless any such officer shall have consented in writing to an earlier date) unless, prior to taking or omitting any such action, the Rights Agent has received written instructions in response to such application specifying the action to be taken or omitted. (h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not

TABLE OF CONTENTS. The Depository may at any time be removed by bank serving as the Corporation by notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting Administrative Agent hereunder shall resign or be removed, have the Corporation shall, within 60 days after same rights and powers in its capacity as a Lender as any other Lender and may exercise the delivery of same as though it were not the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this AgreementAdministrative Agent, and such predecessorbank and its Affiliates may accept deposits from, upon payment lend money to and generally engage in any kind of all sums due it and on business with the written request Company, the Borrower or any Subsidiary of the CorporationCompany or the Borrower or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall promptly execute not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and deliver an instrument transferring is continuing, (b) the Administrative Agent shall not have any duty to such successor all take any discretionary action or exercise any discretionary powers, except discretionary rights and powers of expressly contemplated hereby that the Administrative Agent is required to exercise in writing by the Required Lenders (or such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list other number or percentage of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted Lenders as shall be necessary under the successor of circumstances as provided in Section 9.02(b)); provided that the Depository without the execution or filing of any document or any further act, and notice thereof Administrative Agent shall not be required hereunderto take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, the Borrower or any of their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. Such successor Depository may authenticate The Administrative Agent shall not be liable for any action taken or not taken by it with the Receipts consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the name absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default except with respect to defaults in the payment of principal and interest required to be paid to the Administrative Agent for the account of Lenders unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement by a Person other than the Administrative Agent, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith by a Person other than the Administrative Agent, (iii) the performance or observance of any of the predecessor Depository covenants, agreements or its own name as successor Depositoryother terms or conditions set forth herein by a Person other than the Administrative Agent, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

TABLE OF CONTENTS. The Depository may Securityholders Agreement contains provisions permitting the Company and the holders of not less than 25% in aggregate principal amount of the Debt Securities at any the time be removed by outstanding affected thereby, as specified in the Corporation by notice Securityholders Agreement, to execute supplemental Securityholders Agreements for the purpose of such removal delivered (i) evidencing the succession of another corporation to the DepositoryCompany; (ii) adding to the covenants of the Company further covenants for the protection of the holders of Debt Securities; (iii) curing any ambiguity, or correcting any defective or inconsistent provision; (iv) adding to, deleting from, or revising the terms of the Debt Securities, provided that such removal actions do not adversely affect the interests of the holders of the Debt Securities then outstanding; (v) making any other change that does not adversely affect the rights of any Securityholder in any material respect; or (vi) providing for the issuance of Debt Securities, establishing the form of certifications to take effect upon be given pursuant to the appointment terms of the Securityholders Agreement or the Debt Securities, or adding to the rights of the Debt Securities. The Securityholders Agreement contains provisions permitting the Company and the holders of not less than a majority in aggregate principal amount of the Debt Securities at the time outstanding affected thereby, as specified in the Securityholders Agreement, to execute supplemental Securityholders Agreements for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Securityholders Agreement or of any supplemental Securityholders Agreement or of modifying in any manner the rights of the holders of the Debt Securities; provided, however, that no such supplemental Securityholders Agreement shall, among other things, without the consent of the holders of each Debt Security then outstanding and affected thereby (i) extend the fixed maturity of the Debt Securities, or reduce the principal amount thereof or any redemption premium thereon, or reduce the rate or extend the time of payment of interest thereon, or make payments due on the Debt Securities payable in any coin or currency other than that provided in the Debt Securities, or impair or affect the right of any holder of Debt Securities to institute suit for the payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities, the holders of which are required to consent to any such supplemental Securityholders Agreement. The Securityholders Agreement also contains provisions permitting the holders of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery majority in aggregate principal amount of the notice Debt Securities at the time outstanding, on behalf of resignation or removalall of the holders of the Debt Securities, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office to waive any past default in the United States performance of America and having a combined capital and surplus any of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticethe covenants contained in the Securityholders Agreement, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and established pursuant to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Securityholders Agreement, and such predecessorits consequences, upon payment of all sums except a default in payments due it and on the written request any of the CorporationDebt Securities. Any such consent or waiver by the registered holder of this Debt Security (unless revoked as provided in the Securityholders Agreement) shall be conclusive and binding upon such holder and upon all future holders and owners of this Debt Security and of any Debt Security issued in exchange herefor or in place hereof (whether by registration of transfer or otherwise), shall promptly execute and deliver an instrument transferring to such successor all rights and powers irrespective of whether or not any notation of such predecessor hereunderconsent or waiver is made upon this Debt Security. No reference herein to the Securityholders Agreement and no provision of this Debt Security or of the Securityholders Agreement shall alter or impair the obligation of the Company, shall duly assignwhich is absolute and unconditional, transfer to pay all payments due on this Debt Security at the time and deliver all right, title place and interest at the rate and in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorymoney herein prescribed.

TABLE OF CONTENTS. The Depository may at any time In addition, one of the ownership thresholds must be removed by met and a stockholder or beneficial owner or the Surviving Corporation by notice must file a petition in the Delaware Court demanding a determination of such removal delivered the value of the stock of all persons entitled to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, appraisal within 60 120 days after the delivery Effective Time. The Surviving Corporation is under no obligation to file any such petition and has no intention of doing so. In the case of a demand for appraisal made by a beneficial owner, the demand must (i) reasonably identify the holder of record of the notice Shares for which the demand is made, (ii) be accompanied by documentary evidence of resignation the beneficial owner’s ownership of stock and a statement that such documentary evidence is a true and correct copy of what it purports to be, and (iii) provide an address at which such beneficial owner consents to receive notices given by POINT and to be set forth on the verified list to be filed with the Delaware Register in the Delaware Court. If the Shares are owned of record or removalbeneficially in a fiduciary capacity, such as by a trustee, guardian or custodian, the demand must be made in that capacity, and if the Shares are owned of record or beneficially by more than one person, as in a joint tenancy or tenancy in common, the case may bedemand must be made by or for all owners of record or beneficial owners. The foregoing summary of the appraisal rights of stockholders and beneficial owners under the DGCL does not purport to be a complete statement of the procedures to be followed by the stockholders or beneficial owners desiring to exercise any appraisal rights, appoint a successor Depositoryor to preserve the ability to do so, and is qualified in its entirety by reference to Section 262 of the DGCL. The preservation and proper exercise of appraisal rights requires strict and timely adherence to the applicable provisions of the DGCL. Failure to timely and properly comply with the procedures of Section 262 of the DGCL will result in the loss of appraisal rights. More information regarding Section 262 of the DGCL is set forth in the Schedule 14D-9, which shall be a bank or trust company having its principal office in is being mailed to POINT stockholders together with the United States Offer materials (including this Offer to Purchase and the related Letter of America and having a combined capital and surplus of at least $50,000,000Transmittal). If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such noticeAdditionally, the resigning or removed Depository may petition any court full text of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request Section 262 of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository DGCL may be merged, consolidated accessed without subscription or converted shall be cost at the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor DepositoryDelaware Code Online (available at xxxxxxx.xxxxxxxx.xxx/xxxxx0/x000/xx00/xxxxx.xxxx#000).

TABLE OF CONTENTS. The Depository may at All Securities issued upon any time registration of transfer or exchange of Securities shall be removed by valid obligations of the Corporation by notice of such removal delivered Company, evidencing the same debt and entitled to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removalsame benefits under this Indenture, as the case may beSecurities surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, appoint the Security Registrar or any transfer agent) be duly endorsed, or be accompanied by a successor Depositorywritten instrument of transfer in form satisfactory to the Company and the Security Registrar or any transfer agent, which duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be a bank made for any registration of transfer or trust company having its principal office in exchange of Securities, but the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository Company may petition any court of competent jurisdiction for the appointment require payment of a successor Depository. Every successor Depository shall execute and deliver sum sufficient to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without cover any further act tax or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository governmental charge that may be mergedimposed in connection with any registration of transfer or exchange of Securities, consolidated other than exchanges pursuant to Section 304, 906, 1107 or converted shall be the successor of the Depository without the execution or filing of 1405 not involving any document or any further act, and notice thereof transfer. The Company shall not be required hereunder. Such successor Depository (i) to issue, register the transfer of or exchange any Security if such Security may authenticate be among those selected for redemption during a period beginning at the Receipts opening of business 15 days before selection of the Securities to be redeemed under Section 1103 and ending at the close of business on (A) if such Securities are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if such Securities are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if such Securities are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except, in the name case of any Registered Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the predecessor Depository or its own name as successor Depository.Holder, except the portion, if any, of such Security not to be so repaid. Table Of Contents

TABLE OF CONTENTS. No fractional shares of Preferred Stock will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement. The Depository Company, at its election, may require that a number of Rights be exercised so that only whole shares of Preferred Stock would be issued. No holder of this Rights Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of shares of Preferred Stock or of any other securities of the Company which may at any time be removed by issuable on the Corporation by exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give consent to or withhold consent from any corporate action, or, to receive notice of such removal delivered to the Depository, such removal to take effect upon the appointment of a successor Depository hereunder and its acceptance of such appointment meetings or other actions affecting stockholders (except as hereinafter provided. In case at any time the Depository acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office provided in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have been so appointed and exercised as provided in the Rights Agreement. This Rights Certificate shall not be valid or obligatory for any purpose until it shall have accepted appointment within 60 days after delivery of such notice, been countersigned by the resigning or removed Depository may petition any court of competent jurisdiction for Rights Agent. WITNESS the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request facsimile signature of the Corporationproper officers of the Company and its corporate seal. Attest: EMPIRE RESORTS, shall promptly execute INC. By: By: Name: Name: Title: Title: CONTINENTAL STOCK TRANSFER & TRUST COMPANY as Rights Agent By: Authorized Signature Table of Contents hereby sells, assigns and deliver an instrument transferring to such successor all rights transfers unto (Please print name and powers address of such predecessor hereundertransferee) this Rights Certificate, shall duly assign, transfer and deliver together with all right, title and interest in the Stock and any moneys held hereunder to such successortherein, and shall deliver does hereby irrevocably constitute and appoint ______________________________________ Attorney, to such successor a list transfer the within Rights Certificate on the books of the Record Holders within named Company, with full power of all outstanding Receipts and such records, books and other information in its possession relating theretosubstitution. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor Signature Signature Guaranteed: Table of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depository.Contents

TABLE OF CONTENTS. The Depository may Guarantor’s choice at the Guarantor’s expense to represent the Indemnified Person in any time action for which indemnification is sought (in which case the Guarantor shall not thereafter be removed responsible for the fees and expenses of any separate counsel retained by the Corporation Indemnified Person or Persons except as set forth below); provided, however, that such counsel shall be satisfactory to the Indemnified Person. Notwithstanding the Guarantor’s election to appoint counsel to represent the Indemnified Person in any action, the Indemnified Person shall have the right to employ separate counsel (including local counsel), and the Guarantor shall bear the reasonable fees, costs and expenses of such separate counsel, if (i) the use of counsel chosen by the Guarantor to represent the Indemnified Person would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Person and the Guarantor and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Persons which are different from or additional to those available to the Guarantor, (iii) the Guarantor shall not have employed counsel satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time after notice of the institution of such removal delivered action or (iv) the Guarantor shall authorize the Indemnified Person to employ separate counsel at the expense of the Guarantor. The Guarantor will not, without the prior written consent of the Indemnified Persons, settle or compromise or consent to the Depositoryentry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Persons are actual or potential parties to such removal to take effect upon the appointment claim or action) unless such settlement, compromise or consent includes an unconditional release of a successor Depository hereunder and its acceptance each Indemnified Person from all liability arising out of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign claim, action, suit or be removed, the Corporation shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositoryproceeding.

TABLE OF CONTENTS. The Depository may at any time If a note is issued as a registered global note, only the depositary — e.g., DTC, Euroclear and Clearstream, each as defined under “Description of the Debt Securities—Book-Entry Procedures and Settlement” in the accompanying prospectus — will be removed entitled to transfer and exchange the note as described in this subsection because the depositary will be the sole registered holder of the note and is referred to below as the “holder.” Those who own beneficial interests in a global note do so through participants in the depositary’s securities clearance system, and the rights of these indirect owners will be governed by the Corporation applicable procedures of the depositary and its participants. We describe book-entry procedures under “Description of the Debt Securities—Book-Entry Procedures and Settlement” in the accompanying prospectus. Holders of notes issued in fully-registered form may have their notes broken into more notes of smaller denominations of not less than US$1,000, or combined into fewer notes of larger denominations, as long as the total principal amount is not changed. This is called an exchange. To the extent the notes are certificated, holders may exchange or register the transfer of notes at the office of the trustee. Notes may be transferred by notice endorsement. Holders may also replace lost, stolen or mutilated notes at that office. The trustee acts as our agent for registering notes in the names of such removal delivered holders and registering the transfer of notes. We may change this appointment to another entity or perform it ourselves. The entity performing the Depositoryrole of maintaining the list of registered holders is called the security registrar. It will also record transfers. The trustee may require an indemnity before replacing any notes. Holders will not be required to pay a service charge to register the transfer or exchange of notes, such removal but holders may be required to take effect upon pay for any tax or other governmental charge associated with the appointment exchange or transfer. The registration of a successor Depository hereunder transfer or exchange will only be made if the security registrar is satisfied with your proof of ownership. If we designate additional transfer agents, they will be named in the applicable pricing supplement. We may cancel the designation of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts. If the notes are redeemable and its acceptance we redeem less than all of such appointment as hereinafter provided. In case at any time the Depository acting hereunder shall resign notes of a particular series, we may block the registration of transfer or be removed, exchange of notes during the Corporation shall, within 60 period beginning 15 days after before the delivery of day we mail the notice of resignation or removal, as the case may be, appoint a successor Depository, which shall be a bank or trust company having its principal office in the United States of America redemption and having a combined capital and surplus of at least $50,000,000. If no successor Depository shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depository may petition any court of competent jurisdiction for the appointment of a successor Depository. Every successor Depository shall execute and deliver to its predecessor and to the Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depository, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depository under this Agreement, and such predecessor, upon payment of all sums due it and ending on the written request day of that mailing, in order to freeze the list of holders entitled to receive the mailing. We may also refuse to register transfers or exchanges of notes selected for redemption, except that we will continue to permit registration of transfers and exchanges of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any entity into or with which the Depository may be merged, consolidated or converted shall be the successor of the Depository without the execution or filing unredeemed portion of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depository may authenticate the Receipts in the name of the predecessor Depository or its own name as successor Depositorynote being partially redeemed.